The Nature of African Customary Law

By T. Olawale Elias | Go to book overview

CHAPTER VIII
PRINCIPLES OF LIABILITY FOR LEGAL WRONGS

HAVING shown that African customary law does make its own distinction between what are called criminal and civil offences according to English law, we may now go on to consider what notions of liability are entertained in the respective spheres of legal wrongs. First, let us examine the general ideas held about the aims of law in African societies before we attempt to analyse the basic concepts of liability for civil and criminal wrongs.

It is commonplace to describe African law as positive and preoccupied with the maintenance of the social equilibrium of the community, and English (or European) law as markedly negative. It has also been claimed for it that its chief aim is compensation for the wronged as opposed to the European ideal of punishment of the wrong-doer; the aim of African law, so the argument runs, is restitution, not retribution. A third generalisation about African law is that it is restricted to a limited group, whilst European law tends to be all-embracing and comprehensive. A fourth contention is that the basis of its operation is communal, not individualistic, as it is in European law. This list of 'points of departure' between the African and the European systems of law could be and are even added to, but it seems advisable to pause here in order to ponder the implications of those just stated.

Writers on African law are perfectly right to stress that its essential characteristic is the maintenance or restoration of the social equilibrium of the community and that this pervades the whole fabric of African law. But it is fallacious to make this assertion only with respect to African law, since that implies that English (or European) law therefore has an entirely different aim. Against this, we may recall here Lord Sumner's well-known dictum: 'The object of a civil enquiry into a cause and consequence is to fix liability on some responsible person and to give reparation for damage done.'1 To the same effect is Roscoe

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1
In Weld-Blundell v. Stephens ( 1920), A.C. 956, p. 986.

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