African law(s)

CHAPTER 1: Africa and comparative law

1. INTRODUCTORY REMARKS

African law, a complex and multifaceted phenomenon, reflects the continent's diverse cultural, social, linguistic, and

religious fragmentations. The study of law in Africa has evolved over time, with the stratigraphic analysis of African

culture identifying a first level of normative orders, known as traditional law, followed by the layer of law imported by

European colonists and post-independence law. The first layer of law following independence lasted until the 1980s,

characterized by political and legal instabilities, and the law of the 1990s, influenced by international financial

organizations. The aim of this work is to reconsider the composition of layers in African law and the stratigraphic

method to propose a more appropriate approach to the African reality. The study of law in Africa also focuses on

assessing the position of human rights and gender equality, highlighting the importance of recognizing the social

concepts of human rights in African societies. A "soft human rights approach" is proposed, involving local leaders in

discussing issues and allowing them to decide on the best solution. Proactive responses to problems emerging from

the interfaces between local perceptions and international discourse are essential for addressing the challenges of

African law.

1.1 What is law?

The concept of law in Africa is a complex and multifaceted issue, with its definition influenced by the specific

conditions of western societies. Jurists often view their legal system as a monolithic block, focusing on the state's

territorial and temporal context. However, there is no consensus among scholars on the meaning of law, leading to

the assumption that there are no proper laws in traditional Africa. Legal pluralism is essential in studying African law,

as it challenges the assumption that legal certainty is necessary for a genuine legal system. Law is connected to

culture, tradition, religion, and values, and it is impossible to deny the voice of culture, tradition, religion, and values

in their legal implications.

To address the discussion on law in Africa, an "enlarged" concept of law is needed, identifying each system as a

"normative order." These normative orders are perceived as binding by a given society and have characteristics

similar to those of state normativity. The field of relations between law and society emerges as a space where

multiple normative orders competing against each other. When Europeans arrived in Africa, local populations were

declared uncivilized, illiterate, lacking political and legal structures. This lack of awareness on a pluralist vision heavily

affected the way in which African law is understood. A pluralist approach should be used to understand the various

aspects of the African legal context, where non-state law is more powerful than many lawyers are willing to admit.

1.2 Then, what is African law?

The term "African law" is used in various contexts, including in francophone literature, anglophone scholarship,

Italian and Portuguese doctrine, and Italian and Portuguese law. In francophone literature, it is used in the plural to

highlight the multiple facets of the legal phenomenon in Africa. In the singular, it is used to identify "droits

originellement africains," or "customary" law, as opposed to all other non-autochthonous normative orders.

Anglophone scholarship uses the term to refer to all normative elements present in African legal systems, including

the autochthonous element. The English approach historically focuses on local legal elements, while recent African

scholarship has widened its horizon by focusing on non-customary elements of law in Africa. African law is now a

specialized generic term or frame of reference for the phenomenon of law on the continent of Africa, representing

the totality of African legal systems.

1.3 The geographic boundaries

The legal comparatist in African law studies sub-Saharan Africa, not including Northern African states. The region

overlooking the Mediterranean has little in common with sub-Saharan Africa culturally, linguistically, and legally,

being more connected to the Arab and Middle Eastern area. The division of Africa into North and South of the Sahara

is now falling out of favor, but it is still valid and convenient for the present inquiry. The Sahara Desert serves as a

demarcation line between the people of these two parts of the continent, crossing a dense network of commercial

connections.

Despite frequent contacts and relationships, profound diversities exist between the two parts. In the northern part,

populations speak Afro-asiatic languages and have a common religion, Islam, and Arabic as vehicular language. On

the other side, populations speak Niger-Kordofanian and Nilo-Saharan languages, and in the southern part, African

people have yellow-brown skin, thin lips, flat face, short and straight forehead, flat skull, bush hair, and steatopygia.

The northern part of Africa developed its own culture and approach to law due to its proximity to the Mediterranean

area and influences from other cultures. This discourse will focus on the legal dynamics in sub-Saharan Africa.

2. AFRICAN LAW IN (AND OUT OF) COMPARATIVE LAW LITERATURE

Comparative law studies in Africa verify its position in the system and address main themes, while addressing

methodological aspects in subsequent sections.

2.1 African law and comparative law studies

Comparative law scholars generally disagree with the categorization of African law into legal families, influenced by

the traditional westernized approach. However, there is a recent trend of giving more dignity to African law in

comparative legal studies. This negative opinion is based on the argument developed during colonial times and

resisted after the independence of African countries, which argued that Africans should adopt Western laws to

advance from their underdeveloped conditions. The concept of "legal family" has been used to classify legal systems,

with some criticizing it for not being an autonomous legal family. René David's taxonomy, based on the commonality

of main elements of a legal order, has been successful, but it has also been criticized for its lack of autonomy.

Ziegert and Kötz considered the influence of European patterns over the intrinsic characteristics of African legal

culture, as all African legal systems are still influenced by the laws of earlier colonial powers. This is partly because

European law has served as a model, especially in areas like law of obligations, commercial law, criminal law, and

administrative law, and partly because African lawyers have absorbed European legal traditions from studying in

Europe or at an African university founded on a European model. Despite these criticisms, there are several other

classifications into legal families that do not change the general trend of the lack of recognition of autonomy for law

in Africa. Classic classifications into legal families are excessively Euro-centered, too much based on private law, and

sometimes even temporally outdated. Traditional law has been generally considered an object for ethnological rather

than legal research, leading to its marginality in classifying the law of African countries among the legal systems.

Jaakko Husa's position is even more radical, considering legal pluralism associated with African systems or overall

with systems where legal orders are technically less developed than Western systems. This has led to limited

extension or absence of chapters on African law in comparative-law manuals.

Leontin J. Costantinesco criticizes the classification of legal families into legal families, arguing that the role of law

favors progress and that African legal culture is not suitable for the modern world. Mathias Siems agrees with these

critics but does not recognize African law as an autonomous subject of studies. Comparative legal scholarship has

mostly switched to the concept of legal tradition proposed by H. Patrick Glenn, which aims to describe traditions by

criteria internal to themselves without externally imposed terminologies. Glenn identifies the chthonic legal tradition

as the oldest, practicing different legal experiences (African, Aztec, Inuit, Polynesian, and similar) without external

influences.

However, the "chthonic" concept is not fully convincing, as it seems to be referring to ancient or marginal legal

experiences and looks like another bowl of uncategorized legal experiences. There are other examples where African

law is not confined to the transplanted European model or grouped in a residual category. One of the first

recognitions of the autonomy of African legal systems considers them as a separate category, even though it does not

develop the discourse more in detail. Another approach divides legal systems into four cultural families: African,

Asian, Islamic, and Western. This classification focuses on the connection between law and culture, but it resolves in

an excessively Western-centered vision. Werner Menski's approach is different, focusing on non-western legal

systems, placing Africa at the same level as other main systems in this part of the world. Uwe Kischel's contextual

vision uses the concept of context to include all aspects that a comparative lawyer may consider relevant and

bypasses obstacles that render other criteria of classification unsatisfactory.

2.2 African law as an autonomous legal family/tradition?

The global models of law are often shaped by Western legal professionals, reflecting the interests of the Western

world. This has led to African law finding only a residual space in comparative legal scholarship. However, it is

possible to recognize an autonomous dignity to African law as a separate legal entity, using common taxonomies such

as families and tradition.

Despite the heterogeneity of informal normative systems in sub-Saharan Africa, a series of common characteristics

give the ensemble of African laws a profound unity. These common values and characteristics gave birth to laws with

a family resemblance. In Africa, the reception of European patterns has evolved into "legal mimetism," where the

imported systems have a limited impact on the legal life of the population and conceal a different and hidden legal

reality strictly linked to the local culture and context. Law in Africa is multidimensional, due to the concurrent

presence of different normative orders functioning simultaneously within the same legal space. The predominance of

the community and its preservation, the sublimination of the individual's role as a member of the community, the

conciliatory aspect of the dispute resolution system, and the unwritten and variegated form of the legal substrate on

which other components have been transplanted are all typical and common features in sub-Saharan Africa.

The concept of "lawscape" helps in further developing this point and is one of the common threads of the present

work. It is important to consider the variability of legal systems, as they continuously grow and interact dynamically.

It is possible to talk about an "African legal tradition" using Glenn's taxonomical criteria or consider the African legal

culture as an independent subject, but always remembering Sacco's warnings about the reliability of legal

taxonomies and the excessive overestimation of the importance of the classification of legal systems.

An African legal model has its own features and characteristics, including the experience of colonization, the idea of

using law as a tool for development, and the continued importance of traditional law operating in interaction with

state laws. This model presents elements such as the "holistic" approach of the dispute resolution system, the

communitarian approach, and the different vision on how to rule society and administer power.

Uwe Kischel's H contextual approach is beneficial in putting the law in context, focusing on the contemporary

situation while considering all relevant legal and non-legal elements without forgetting the historical and cultural

roots.

This being said, the comments made in this section are not intended to question the correctness of any particular

classification. It is an established fact that in comparative law there is no single classification criterion, but that

criteria may vary according to the purposes, the object and the methods adopted for the study of the various legal

phenomena. The most important goal is to grasp the legal reality of African countries, without preconceived schemes

and with the curiosity that is typical of the comparatist.

3. COMPARING IN AFRICA

Comparative law in Africa is underutilized despite globalization's potential for comparative legal studies.

Understanding the reasons behind this underrepresentation could unlock its potential.

3.1 Legal transplants and the African continent

Legal transplants have been present in various legal systems, often involving an entire part of a legal system or

specific rules extracted from another system. These transplants benefit from the variety of legal factors present in a

legal system, such as the work of lawmakers or other legal operators who suggest specific solutions. Legal transplants

can be considered the main form of legal development and can be caused by two possible reasons: imposition and

prestige.

In sub-Saharan African reality, transplanted laws based on Western patterns de facto circumscribe their application to

main cities and social and business circles where people can understand the rules and apply them. However, applying

and enforcing state law requires not only the capacity to understand it but also the economic means to face

bureaucratic requirements and hire legal consultants.

Some less investigated situations involve people instilling the essence of transplanted rules within a system of

alternative and spontaneous law, far from official state law and traditional law, in a complaint towards their

inadequacy to address the real needs of the people in the present African society. For example, after gaining

independence, most African countries adopted a liberal constitution substantially copied from the constitutions of

the colonizing countries, which are based on the classic principles of Western liberal democracy.

Sir Ivor Jennings observed that the British constitution has grown up with the British people, but its principles are not

universally valid. A system of government is not necessarily undemocratic because it does not follow British

precedents, but copying those precedents in conditions different from those of the United Kingdom may result in the

tyranny of the majority.

Another example is drawn from family law, where modern countries adopted family laws based on the pattern of the

monogamous family, the autonomy of the personal consensus of the spouses, and equal rights for women and men.

This kind of rule is often difficult to implement in Africa and frequently generates parallel phenomena that the official

law fails to take into consideration.

The French civil code of 1958 was the official civil code in the Central African Republic, but it was largely unapplied in

various areas, particularly in family and succession law. Traditional law, such as dowry and polygamy, was still

practiced under traditional law. In 1997, the country enacted a new Code de la Famille, which replaced the part

concerning family law and allowed dowry and polygamous marriage. The informal economy, particularly in African

cities, escaped rigid legal regulation and was regulated by norms developed within markets based on Western

models. Legal transplants in Africa resulted from imposition and prestige, driven by former colonial powers and

international organizations. This led to the evolution of law in Africa, resulting in a dualism between official and

unofficial laws. The former has necessary enforcement measures but is often difficult to apply due to its foreign

influences.

3.2 Language and Law in Africa

The relationship between law and language has been a significant concern for researchers for centuries, with the

legal order being understood as a social and linguistic order. In Africa, which is multilingual, the complexity of its legal

order is revealed by the many African languages that convey traditional legal cultures of an oral nature. The problem

arises when considering the relationship between language and law in Africa, which is extremely varied and

characterized by a broad multilingualism that derives from an equally wide multiculturalism.

In Africa, written language and spoken language do not necessarily coincide, often conflicting. This confirms that the

analysis of the relation between language and law in Africa cannot be limited to the simple observation of how the

law is expressed in Africa but should be considered and analyzed in the wider context in which the law operates in

Africa. There are 2,140 spoken languages in Africa, divided into four large families: Congo-Kordofanian, Nilo-Saharan,

Khoisan, and Afro-Asiatic. The plurality and diversity of African languages through which African traditional laws are

expressed make it difficult to determine the semantic meaning of legal notions contained in certain rules. In most

African countries, local languages are rarely considered official languages, and their official use in public offices and

activities is almost absent.

A linguistic framework characterized by the large number of languages spoken, citizens belonging to different

linguistic origins, and the borders of African countries do not coincide with the cultural, linguistic, and territorial

boundaries of the populations that inhabit the territory favored the creation of the almost total monopoly of the

language imported by European colonizers as a language used to practice law in Africa.

In Africa, traditional norms are expressed orally through proverbs, tales, common language expressions, maxims, and

legends. However, written African law is not the whole of African law, and it is essential to reconstruct the meaning

and features of all elements present in African legal systems. Comparing African countries and their legal systems is

essential for understanding different legal systems and recognizing the existence of a different African concept of law.

Developing comparative legal studies in the African context allows for the understanding of different legal systems,

recognizing similarities in legal concepts, principles, and approaches to legal issues across Africa. This approach also

helps African scholars to consider their legal cultures and systems from a different perspective; using only the