Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-26T05:57:52.345Z Has data issue: false hasContentIssue false
  • English
  • Français

A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa

Published online by Cambridge University Press:  22 January 2009

Martin Chanock
Martin Chanock
Affiliation:
La Trobe University
Get access Rights & Permissions [Opens in a new window]

Extract

This essay outlines a general framework for thinking about African ideas about proprietary rights and considers how this might produce insights into ideas about social relations.

Drawing largely on examples from East and Central Africa, and on an analysis of property disputes pursued to the Natal Native High Court, it is suggested that the development of a customary law came first to the ‘law of persons’ and then to the ‘law of property’. Ideas and disputes relating to land and to other forms of ‘old’ and ‘new’ property are all examined. Ideas about what were and were not commodities, and about different ways of dealing with kin and with strangers, are shown to be fundamental to the understanding of disputing behaviours and the meaning of customary norms. Disputes were not simply about ownership and value but about the changing boundaries of commodity status. Ideas about appropriate behaviour regarding the transactional order between kin concerning ‘old’ property (food and cattle) extended into the dealings between strangers about ‘new’ property (acquired with money through the market), whilst the ideas and practices of the market economy had a significant effect on the way ‘old’ property was dealt with among kin. The development of the customary law related to property also has a particular relevance in understanding generational conflict in Africa.

It is argued that customary law was formed in the process of a dialogue between rulers and ruled during the colonial period. The colonial state impeded the development of individual tenure by the ‘invention’ of communal tenure but was ambivalent in response to attempts by younger men, and by women, to separate estates from the control of older males.

Type
Research Article
Information
The Journal of African History , Volume 32 , Issue 1 , March 1991 , pp. 65 - 88
Copyright
Copyright © Cambridge University Press 1991

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 This paper was written initially in 1987, for the University of Illinois symposium on ‘New Perspectives in Colonial Africa’, and I have had the advantage of comments from members of that group, and from Professor Sally Falk Moore. Its title is derived from doing contextual violence to Maine, Henry, who wrote: ‘The undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group’ (Ancient Law, Everyman edition, London, 1917 [first edition, 1861], 281).Google Scholar

2 The misleading phrase is Hyden's, G.. See Beyond Ujamaa in Tanzania (London, 1980).Google Scholar We must remember too that ‘No objective analysis of property can omit the subjective…Peoples’ feelings about property are an essential aspect of it.’ Hollowell, P. (ed.), Property and Social Relations (London, 1982), 2.Google Scholar

3 See Chanock, M. L., Law, Custom and Social Order: the Colonial Experience in Malawi and Zambia (Cambridge, 1985), 13–16, 230–9.Google Scholar

4 See Chanock, , Law, Custom and Social Order, ch. 9Google Scholar; Miers, S. and Kopytoff, I. (eds.), Slavery in Africa: Historical and Anthropological Perspectives (Madison, 1977)Google Scholar; Hirshon, R. (ed.), Women and Property-Women as Property (London, 1984);Google Scholar and Bledsoe, C., Women and Marriage in Kpelle Society (Stanford, 1980).Google Scholar

5 Iliffe, J., The African Poor: a History (Cambridge, 1987), ch. 1.CrossRefGoogle Scholar

6 Kopytoff, I., ‘The cultural biography of things: commoditization as process’, in Appadurai, A. (ed.), The Social Life of Things (Cambridge, 1986), 64. My italics.Google Scholar

7 Snyder, F., Capitalism and Legal Change (London, 1981).Google Scholar

8 Chanock, , Law, Custom and Social Order, especially chs. 1, 2 and 12.Google Scholar

9 Snyder, , Capitalism and Legal Change, 139.Google Scholar

10 For an account which links generational conflict to property relations see Parkin, D., Palms, Wine, and Witnesses (San Francisco, 1972), especially chs. 3 and 8.Google Scholar

11 See also Bohannan's account of the subversion of the Tiv gerontocracy in the process of the crumbling of divisions between the different spheres of exchange: P. and Bohannan, L., Tiv Economy (Evanston, 1968).Google Scholar

12 See Glendon, M. A., State, Law and Family: Family Law in Transition in the United States and Western Europe (Amsterdam, New York, 1977);Google Scholar and The New Family and the New Property (Toronto, 1981).Google Scholar

13 Maine, H., Ancient Law. This well-known saying concludes ch. 5, p. 100.Google Scholar I quote Maine's shorthand formulation of the basic thesis of evolutionary social theory not to signify its verity but because it was used by so many legal administrators as the lens through which African developments were seen.

14 Quoted by Bledsoe, , Women and Marriage in Kpelle Society, 51.Google Scholar

15 Bohannan wrote in 1968: ‘The literature on land tenure is one of the largest—and one of the poorest—in all of social and legal science’, Tiv Economy, 77.Google Scholar This is probably still so. For a significant exception see E. Colson, ‘The impact of the colonial period on the definition of land rights’, in Turner, V. (ed.), Colonialism in Africa, vol. 3: Profiles of Change (Cambridge, 1971).Google Scholar I have discussed the question of land tenure extensively in ‘Paradigms, policies and property: a review of the customary law of land tenure’ in Mann, K. and Roberts, R. (eds.), Law in Colonial Africa (London, forthcoming).Google Scholar

16 Lugard, F. D., The Dual Mandate in British Tropical Africa (London, 1922), 280–1.Google Scholar

17 Report of the Conference on Land Tenure in East and Central Africa (H.M.S.O., London, 1955).Google Scholar See also Chanock, M., ‘Agricultural change and continuity in Malawi’, in Palmer, R. and Parsons, N. (eds.), The Roots of Rural Poverty (London, 1979).Google Scholar

18 Gluckman, M., The Ideas of Barotse Jurisprudence (New Haven, 1965), 71.Google Scholar

19 Malinowski called communal tenure ‘the undying fallacy of anthropological work’. Quoted by Bohannan, , Tiv Economy, 87.Google Scholar The fallacy has been kept alive by the image of African socialism contrasted to imperialist capitalism.

20 See, for example, the judgement of the Privy Council in the Special Reference as to the Ownership of the Unalienated Land in Southern Rhodesia: In re Southern Rhodesia A.C. 1918.

21 Scott, J., The Moral Economy of the Peasant: Rebellion and Subsistence in South East Asia (New Haven, 1976), 40.Google Scholar

22 This image may have been finally broken by Iliffe, The African Poor, 3 et seq and ch. 4.

23 Malawi Parliamentary Debates, 1967, cited in Ng'ong'ola, C., ‘The design and implementation of customary land reforms in Central Africa’, Journal of African Law, XXVI (1982), 115.CrossRefGoogle Scholar

24 Kandawire, J. A. K., ‘Village and class in Southern Malawi’, Africa, L (1980).Google Scholar

25 Allan, W., The African Husbandman (Edinburgh, 1968), 374.Google Scholar

26 Wilson, G., The Land Rights of Individuals Among the Nyakusa (Manchester, 1938).Google Scholar

27 See generally, for example, Hailey, Lord, An African Survey (London 1938), 820 et seq.Google Scholar

28 Ibid. 830, 833–5.

29 Ibid. 868.

30 Ibid. 874.

31 Ibid. 875.

32 Ibid. 876.

33 Ibid. 877. The administrative resources of the colonial regimes in Africa were generally not up to the kind of survey required to give ‘indefeasible’ title. The model which Hailey had in mind was the Indian system in which presumptive title, which could be challenged in court, was recorded.

34 See Colson, , ‘The impact of the colonial period’ Kitching, G., Class and Economic Change in Kenya (New Haven, 1980)Google Scholar and Chanock, , Law, Custom and Social Order, 230 et seq.Google Scholar

35 Richards, Audrey, Land, Labour and Diet in Northern Rhodesia (London, 1939), chs. 7–9.Google Scholar See, too, the account of the ‘models and metaphors’ of the Bemba economy in Gudeman, S., Economics as Culture (London, 1986), ch. 5Google Scholar, for a different affirmation of ‘respect’ as a basic metaphor of Bemba exchange relations.

36 Ibid. 220–1.

37 Colson, E., ‘Trade and wealth among the Tonga’, in Bohannan, P. and Dalton, G. (eds.), Markets in Africa (Evanston, 1962), 615.Google Scholar

38 Gluckman, , Ideas, 162–3.Google Scholar

39 Colson, E., The Plateau Tonga of Northern Rhodesia: Social and Religious Studies (Manchester, 1962), 125.Google Scholar

40 Cutshall, C. R., ‘Culprits, culpability and crime: stocktheft among the Ila of Zambia’, African Studies Review, XXV (1982), 4.Google Scholar

41 Ibid. 6.

42 Chanock, , Law, Custom and Social Order, chs. 7–9.Google Scholar

43 Cutshall, C. R., ‘Culprits, culpability and crime’, 13.Google Scholar

44 These reports, which were published along with the law reports of other South African jurisdictions, give a better record of disputes than the law reports of superior courts in the British colonies to the north, the judgements being long and discursive. They reflect of course only those cases which were pursued through the state's system to the appellate level. The series is cited in the text as N.A.C., together with the date of the case report.

45 White, Landeg, Magomero: Portrait of an African Village (Cambridge, 1987), 229–30, 245.Google Scholar Control of money was influenced by more than one set of precepts. Bohannan wrote of the Tiv that money belonged to the person who earned it but that ‘rules of giving and receiving…cut across this principle…(A)s part of the reciprocal rights and duties of compound life, the father or compound head sometimes has an overriding right to some of it. Tiv say that during the hungry months a compound head should control the money; they equate this with the fact that he should control the food in the compound when it is very short.’ Tiv Economy, 223–4.

46 For a full discussion of the formation of the Code, see Welsh, D., The Roots of Segregation: Native Policy in Natal 1845–1910 (Cape Town, 1971), especially ch. 9.Google Scholar

47 Chanock, , Law, Custom and Social Order, ch. 12.Google Scholar

48 Ibid. chs. 10 and 11.

49 See Guyer, J., ‘Household and community in African studies’, African Studies Review, XXIV (1981), 114.Google Scholar

50 See Benda-Beckman, F. von, Property in Social Continuity (The Hague, 1979), 50.Google Scholar

51 See Chanock, Law, Custom and Social Order.

52 Quoted by Iliffe, J., The Emergence of African Capitalism (London, 1983), 70CrossRefGoogle Scholar, from Arnold, T., The Symbols of Government (New Haven, 1935), 34.Google Scholar

53 Bloch, M., ‘The symbolism of money in Imerina’, in Parry, J. and Bloch, M. (eds.), Money and the Morality of Exchange (Cambridge, 1989), 170.Google Scholar Appadurai writes ‘Gifts, and the spirit of reciprocity, sociability, and spontaneity in which they are typically exchanged, usually are starkly opposed to the profit-oriented, self-centered, and calculated spirit that fires the circulation of commodities. Further, where gifts link things to persons and embed the flow of things in the flow of social relations, commodities are held to represent the drive—largely free of moral or cultural constraints—of goods for one another, a drive mediated by money and not by sociality’, The Social Life of Things, 11–12.

54 This did not limit African debt. It meant that it had to be found on less favourable terms, and under conditions in which it was not necessarily legally recoverable, becoming part, instead, of a network of continuing obligations. The extension of credit may have been frequently tied to existing obligations and kin networks. See for example Nafziger, E. W., African Capitalism: A Case Study in Nigerian Entrepreneurship (Stanford, 1977), 209Google Scholar, where he notes the extension of credit to respectable Ibo families on the basis of familial guarantees against default. Socially backed credit relations were slow to give way to credit based on property; Status remained a part of Contract.

55 For a fuller account see Chanock, M. L., ‘The political economy of independent agriculture in colonial Malawi: the Great War to the Great Depression’, Journal of Social Science, I (1972)Google Scholar, and Jules-Rosette, B., Symbols of Change: Urban Transition in a Zambian Community (Norwood, New Jersey, 1981), ch. 4.Google Scholar On the general problems facing traders in towns in relation to licensing, credit, and the host of regulations governing trade see Sandbrook, R., The Politics of Basic Needs (London, 1982).Google Scholar

56 The phrases are from a Northern Rhodesian Government Report of 1947. Quoted in Miracle, M., ‘African markets and trade on the copperbelt’, in Bohannan and Dalton (eds.), Markets in Africa, 714.Google Scholar

57 Richards, , Land, Labour and Diet, 220.Google Scholar

58 A woman acquiring property in an urban area was a most revolutionary figure. Bujra, Janet quotes an ex-prostitute: ‘My home is my husband.’ ‘Women “Entrepreneurs” of Early Nairobi’, Canadian Journal of African Studies, IX (1975), 224.Google Scholar

59 Parkin, , Palms, Wine and Witnesses, 29.Google Scholar

60 Hyden, , Beyond Ujatnaa, 17.Google Scholar

61 Scott, , The Moral Economy, 3.Google Scholar

62 Guyer, , ‘Household and community’, 107.Google Scholar

63 See the analysis in Bledsoe, , Women and Marriage, 55–7.Google Scholar Hyden notes that cash is invested in maintaining position in a kinship community to create potential claims, and that economic actions were embedded in a dispersion of favours arid in patron-client relations. Beyond Ujamaa, 18–19.

64 Iliffe, , The African Poor, 154.Google Scholar

65 Ibid.

66 Quoted in Kuper, A., Wives for Cattle: Bridewealth and Marriage in Southern Africa (London, 1982), 112.Google Scholar

67 An essay about property relations which does not consider that major property transaction, the payment of bridewealth, runs the risk of distorting its account of change in the realm of property. The huge inflation in payments had important effects on property relations. Bohannan described how general purpose money had been a factor in destroying the separate spheres of exchange. ‘Rights in women’, he wrote ‘have entered the market and since the supply is finite and the demand infinite, the price of women has become inflated’ Tiv Economy, 228, 249. But a consideration of bridewealth needs a separate paper.

68 Ghai, Y., ‘Customary contracts and transactions in Kenya’, in Gluckman, M. (ed.), Ideas and Procedures in African Customary Law (London, 1969), 338.Google Scholar

69 Ibid. 343–4.

70 Parkin, , Palms, Wine and Witnesses, 57–9, 62. Italics in original.Google Scholar

71 Benda-Beckman, Von, Property in Social Continuity, 6.Google Scholar

72 Vaughan, M., The Story of an African Famine (Cambridge, 1987), ch. 5, especially 124, 147.CrossRefGoogle Scholar

73 Appadurai, , The Social Life of Things, 13, 15.Google Scholar

74 Ibid. 16, 27.

75 He categorized three: one of ordinary commodities; one of prestige goods (slaves, offices, cattle); and one of rights in persons (wives, children). Tiv Economy, 227 et seq.

76 Ibid. 233–4.

77 Kopytoff, , ‘The cultural biography of things’, 72.Google Scholar

78 Chanock, , Law, Custom and Social Order, chs. 10 and 11.Google Scholar

79 See, for example, Parkin, , Palms, Wine and Witnesses, 87–91.Google Scholar

80 The market based on self interest is, Bohannan wrote, a pervasive institution, and only definite mechanisms ‘can keep the market principle from sweeping the whole culture’. Tiv Economy, 241. These mechanisms had to be developed in a context in which the market frontier was moving and contested, and in which African rules of exchange were ultimately subjected to British ones, and in which disputes developed in areas for which the dominant British rules were not wholly appropriate.

81 Sally, Falk Moore, Social Facts and Fabrication: the Customary Law and Kilimanjaro 1880–1980 (Cambridge, 1986), 298.Google Scholar Note too the importance of the ‘witnesses’ in Parkin's Palms, Wine and Witnesses.