The Nature of African Customary Law

By T. Olawale Elias | Go to book overview

CHAPTER XI
LEGISLATION UNDER CUSTOMARY LAW

ACCORDING to Maine, the order of precedence among factors of legal development is in the chronology of fiction, equity, and legislation.1Fictions come first in tempering the rigidity of traditional rules which, through centuries of repetition, tend too often to be conservative in their jealous regard for social stability and orderliness. The old rules continue to bear their pristine names and well-worn features but, in their practical operation, inconvenient and harsh aspects are being continually toned down and adapted to new circumstances. When this subtle process becomes too slow or too inadequate, there follows a further stage in the reform of the law by means of equity. What the pretence of fiction cannot achieve indirectly, an appeal to natural justice and objective reasonableness ought to ensure directly. Therefore, all outmoded legal rules and reactionary customs may be disregarded as contrary to what is ordinarily accepted as fair and just. The final and most conscious stage of legal change is reached when old rules are specifically altered in order to make them accord with the changed situations of life and thought. This is the era of legislation, which Maine equates with an advanced stage of a society's legal evolution.

Now, as other writers have shown, Maine's order is neither universally valid nor scientifically accurate. Many ancient codes clearly antedate the emergence of equity or fiction, while the principle of natural justice in the form of a higher (i.e. eternal) law has been acknowledged in themistes (i.e. judgments), which are said to precede even customary rules themselves.2 The truth

____________________
1
At pp. 26 and 29 of his Ancient Law. See also his Lectures on the Early History of Institutions.
2
Far from preceding equity, fiction has often been prompted by it, for it is the equitable instinct for change in the existing law which has almost invariably given rise to the creation of some fiction or other in order to circumvent its iniquity. Coke expressed a truism in his famous epigram: 'in fictione juris semper aequitas existit' (3 Blackstone, Commentaries on the Laws of England, 43).

-187-

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