What is legal pluralism? How did different types of legal pluralism develop African states? Can state law co-exist with customary law? The search for justice in states where legal pluralism exists raises debates on the principle patterns of legal ordering. The introduction of Western legal systems in African countries resulted in different social normative systems existing side by side. This results in legal pluralism.
This Journal of African Law article considers the historical role of legal pluralism and its place in modern judicial systems. Legal pluralism is governed by two or more sets of legal norms, and justice can be defined as what right-minded members of a community would see as fair. But how can right-minded people in a colonised state be selected? Is it the administrative officers, the judges, the settlers or representatives of people to whom the laws were to be provided that decides what is just?
Historically, state courts in African countries have been required to observe, be guided by, or enforce customary law. Customary law has traditionally existed independently from the state, and as such, legal pluralism has always been a part of African law. The African experience has demonstrated that customary law, as developed by lawyers and courts, can be contrasted with ‘popular customary law’ that exists outside the courts. Other key findings include:
- There are many arguments as to why legal pluralism should be abolished, such as: The way in which customary law deals with subjects like the treatment of women, the extensive flexibility of customary law, and inherent conflicts between state law and customary law
- However, the abolition of customary law in favour of a purely state system may not change social practice or the observance of popular customary law, resulting in a widening gap between state and customary conduct
- The interference with and failure to support customs can be seen as unjust, as collectives should be enabled to practice their own cultures
- Hence the abolition of customary law may increase injustice. Intervention by the state in individuals’ lives would increase compared to that experienced under the observance of legal pluralism.
The paper discusses the proposition that when the rules and norms of customary law are followed without regard to the norms of state law, a deficiency in the rule of law exists, resulting in a decrease in justice. However, the paper argues that the search for justice in Africa does not mean the abolition of state or deep legal pluralism. In fact, the maintenance or enhancement of legal pluralism may result in improved justice. Other policy relevant implications include:
- A contradiction between state and customary law can be addressed by a well-ordered legal system featuring a hierarchy of norms
- Laws that form a constituent part of legal pluralism may have to be modified to ensure consistency. Therefore justice can be achieved within the bounds of legal pluralism.
