Riassunto esame African law, Prof. Salvatore Muscolino, libro consigliato African Laws, Salvatore Mancuso

METODOLOGY

Talking about methodology, requires making a short direction to the studies of comparative law, because

looking at law in Africa requires a different approach->we must look to the lawscape, and not only to one

slice of the cake, but we must consider all the component of African legal system. All the element in the

African lawscape have been introduced in different, speciKc steps, and this is another difference with the

western legal system, that has a straight evolution. When we talk about Africa there are historical

breaks/facts that produces signiHcant changes into the African lawscape. This peculiarity of the African

lawscape is one of the reasons why we don't see too many studies of African comparative law.

the main reason that explain this is that Hrst we don't have too much attention to comparative law in general,

and secondly African scholar are raised in university that are based in western approach to law, and they

consider the law as made by the legislator.

In the western approach when we look at law, we consider the law made by the legislator and we look at

the books, the written law, but in Africa the written law is only one of the components. Also, western jurists

have difKculties to understand law in Africa, because is expressed in different ways that u can't

understand if u don't belong to that culture. The fact is that we link the idea of law to a state, while in Africa

they link the idea of the rule to the ethnic group to each they belong. In the western approach when we

talk about law in the sense of LEGGE ->we presuppose that the law functions because it is not alone but is

put in a system of norms (we see even if it’s in conflict with the constitution). All this doesn’t not exist in

Africa, the idea of legal system, is something that is brought later by the Europeans, is not part of the

African culture and this is important because when this idea has been brought in Africa by the Europeans, it

automatically put aside what was there before.

The Hrst consequence makes us realize that the African concept of law is different from the western one, we

have to abandon the idea of only one concept of law-> based on ethnocentrism-> using a pluralist

approach.

We have also considered that in Africa there is a strong trend towards legal integration, stronger or wicker

-> comparative exercise shows the best way to do legal integration. So, we must have a clear picture of the

lawscape to not have misunderstanding.

EX: In Africa the most important example of legal integration->is the harmonization of business law in

Africa. The idea is to have common rules to all the members countries, and a certain point they decided to

harmonies contract, and the preparations of the drafts was given by Belgium professors. When he prepares,

he was very attentive into consider as much as possible the lawscape of the different countries. At a certain

point he wrote a rule that was extremely simple from a western perspective, the rule was basically saying

that the application of this uniform act could have uncompleted with the relevant usage. So, this is

important to understand the reasons why->we have a lot of cases in which the law of the state remains

unapplied/ is applied by few people, because when there isn’t a match with the local reality, people aren’t

conHdent to the rules.

Looking at law in Africa with a proper methodology gives the possibility to understand that legal transplant

happens in different ways, and what is the daily life of people, even if there’s a common denominator with

the west.

The formants->are those elements that explain why a legal system operates in a certain way, based on a

variety of doctrinal, legislative, and other elements, influencing how rules are conceived and applied. In the

western approach we consider formant in line with the legislative monopoly, with judges that applies the rule

and professor explaining why they apply it, criptotypes are not even studied. In Africa, we need to consider

legal formants with a pluralist approach->factors that judges typically don’t consider become extremely

important. The challenge is to study what doesn’t come from the legislature. Most most part of these

informal rules, has not been incorporated into the system of the ofHcial law of the state, and even when

there is a minimal kind of incorporation the facts that we have transplanted the informal rules into formal 14

instrument has changed the rule. When the scholars realize that consider traditional law was not enough->

used the stratigraphic method.

THE STRATIGRAPHIC METHOD

It originates in Italy, to be applied in African law-> to study the different levels. African law is a layering of

levels-> Traditional law, Religious law, Colonial law, Influences of civil law and common law, post-colonial law,

Modern law of the 21st century. This does not mean that there is only a diachronic analysis; historically they

have succeeded each other but this does not mean that there is a surpassing of the previous one when the

next one takes root. The peculiarity of African law lies precisely in this mixture of these various layers,

which are visible but are now united. We can image the pizza thinking of African law: the different

ingredients are placed on top of each other, these layers represent the various legal components present in

African countries, where the dough is the local legal tradition (which is incorrectly called “customary law” or

informal law), the tomato is religious law, another layer is colonial law, then there is the law of African

countries after independence, the law of international organizations or anyway the law of the nineties, and

Hnally the law that we have now which is placed as the last layer of the pizza.

Where is the Achille’s heel of this methodology? ->Is too much historical oriented.

CUSTOMARY LAW

The Hrst and most important component of the African Law is the base of our pizza, the African legal culture

that is expressed through his rules that we call Traditional law (or Customary law). We don't know much

about the rules existing in Africa pre literal times, we can assume that there was a sort of regulation for the

societies, but the rules were NOT VERBALIZED of course. But the appellation "Customary Law" is NOT

CORRECT.

1. When we talk about a series of rules, we have elements that are not only legal but also

political/economic/social/historical elements, the main problem is that when we call it "customary

law" we pay attention to the legal rules, so all the other elements are put in a corner.

2. Secondly, we must remember that the expression customary law is based in two word "custom" and

"law". Law has a different meaning according to the context. Also, the word custom as a differ

connotation according to those who use the word and the context in which is used.

In strictly legal terms we can identify with the word "custom" three different things:

1. Dogana; is custom and it doesn’t relate at all to what we’re talking about.

2. Consuetudine: a behavior that is repeated over time perceived as a legally bounding rule, con il

convincimento che sia un comportamento obbligatorio. Who determines if the behavior is secundum,

praeter and contra legem? The judges. For being repeted over time it’s rigid, if the behavior is flexible, we

don't have consuetudine;

3. Flexible set of rules: when scholars talk about customary law in Africa, they are identifying a system of

flexible rules that are not applied by the authority but by the chief.

What are the common elements between the last two meaning of Customary law?

- On both cases the rules come from a non-authoritative source;

- They are not written.

There is an important consequence of this->in the western approach is the law that determines when the

consuetudine can be accepted or not. In Africa of course we don't have a predetermined set of rules, and

we have also to consider that the expression customary law has been transplanted by the European without

knowing the African legal culture. The use of the word customary implies a sort of judgment, an idea of

inferiority. Also, in western sense we consider customary law as rigid, therefore in the African sense the

customary law adapts itself with the encounter of other cultures.

Today we can identify two big set of rules: 15

-Traditional law-> linked to the original African culture-> this is the set of rules that is applied in the

countryside where the interaction with others normative orders happens in a very peculiar way. Obviously,

the traditional law evolved, but its evolution was different respect other context.

- While if we move to the big cities, we Hnd a completely different normative orders, interconnected between

the different normative aspects. A French scholar says that it’s impossible that people from the savannah

have the same legal rules of those who live in the forest. Normative orders vary according to the context.

If we put together these two big sets of normative orders the common thing that they have is that they are

informal, they don't come from the State. Therefore, in the western approach we have only one solution,

offered by the state, in African reality we have different kind of solutions. One important thing that we

must underline is that one of the objections that has been made to the informal approach is that it would not

match with the idea of legal certainty-> with certainty of droits, we refer to the fact that we can know the

consequences of our actions before we do them, this principle is linked to the western tradition, where he

has a many roots and justiHcations.

In Africa, the objective of the rule is cohesion and harmony in the community. This is a characteristic

because in many cases in our western world the rule made by the legislator doesn't create

cohesion and harmony.

THE RELIGIOUS COMPONENT IN AFRICA- ISLAM

Among the different religious laws that populate the African "lawscape", the Islamic law was the most

diffused and the most studied. The arrival of the Islamic religion in Africa, and with that of the Islamic law,

can be traced to the 7 century, carried by Muslim traders from the Arabian Peninsula and the Persian Gulf.

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So, the characteristic of the spread of Islam in sub-Saharan is linked to commercial activities. When the

Europeans arrive in Africa the Islam religion was the dominant monotheistic religion in the African continent,

the religion of the leaders, of part or the entirety of population.

In general, in sub-Saharan Africa the Islamic religion had to adapt to social, economic, and political situation

where traditional religions were still dominating, situations that were different from those of North Africa

where Muslim authorities were in charge of urban affairs. In the beginning Islamic communities lived in

separate settlements following Islamic law and didn’t interact with local people-> later the barriers were

eroded. When Islamic law arrive in Africa, Traditional Law was the normative order present in the conti