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Kaguru Justice and the Concept of Legal Fictions

Published online by Cambridge University Press:  28 July 2009

T. O. Beidelman
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Extract

This paper has two purposes: (1) to consider certain aspects of the concept of “legal fiction”; (2) to indicate some of the means by which a local African court avoids the potential conflict between African customary law and European law.

Type
Articles
Information
Journal of African Law , Volume 5 , Issue 1 , Spring 1961 , pp. 5 - 20
Copyright
Copyright © School of Oriental and African Studies 1961

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References

page 6 note 1 Elias, T. O., The Nature of African Customary Law (Manchester: Manchester University Press, 1956), p. 185. Elias devotes an entire chapter of his book to legal fictions, pp. 176–86.Google Scholar

page 6 note 2 Maine defines “legal fiction”as: “…any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration its letter remaining unchanged, its operation being modified” Ancient Law (London: Dent (Everyman), 1954) p. 16. (1st edition, 1861.)Google Scholar

page 6 note 3 Hoebel, E. A., The Law of Primitive Man (Cambridge: Harvard University Press, 1954), pp. 284–5.Google Scholar

page 6 note 4 Gluckman, M., The Judicial Process among the Barotse of Northern Rhodesia (Manchester: Manchester University Press, 1955), p. 337. Of course, legal fictions are not confined to archaic or medieval law in the way Gluckman implies.Google Scholar

page 6 note 5 Elias, T. O., op. cit., p. 176.

page 7 note 1 See examples: Elias, T. D., op. cit., pp. 177–83. All of these examples may be analysed without recourse to this concept. In many of these it is difficult for me to understand what the “fictional” aspect is.

page 7 note 2 I have no training in law and therefore have little idea what value the concept of “legal fictions” may have for lawyers.

page 7 note 3 Elias, T. O., op. cit., pp. 176–7.

page 7 note 4 Hoebel, E. A., op. cit., pp. 284–5. Hoebel even presents the principle of lineal descent as a “fiction”, a procedure impossible to reconcile with any of the significant work in kinship studies in the last thirty years, ibid., p. 317.

page 7 note 5 To my knowledge Diamond's work is the only study of primitive law which rejects the concept of “legal fiction” among primitive peoples. However, he does so because he does not consider primitive law sufficiently “stereotyped” to require such practices. He does not indicate that the examples offered by most writers rest upon the analyst's adherence to the legal concepts of his own society when explaining those of another society. “The existence of so-called fictions presupposes two things; firstly, the law or legal form must have become stereo typed; and secondly, there must be change. It is because of the first requisite that there are no real fictions in primitive law. Until a thing has acquired an unpliant, unyielding form, it cannot be wrenched.” Diamond, A. S., Primitive Law (London: Longmans, Green, 1935), p. 348.Google Scholar

page 7 note 6 Hoebel's discussion of “fictive” kin is quite similar in its misleading confusion of the principles of biological kinship with those of social kinship. Hoebel, E. A., op. cit., pp. 284–5, 317.

page 8 note 1 Ibid., pp. 181–2. Elias mistakenly calls the example he cites a case of levirate although it is more properly described as ghost-marriage.

In the levirate a widow cohabits with her dead husband's kinsman; her subsequent children whom such a man sires belong to the dead man. In ghost-marriage, the person to whom a woman is married and to whom her children belong is dead prior to the marriage. In the levirate, rights which were contracted by marriage with a living man are perpetuated after his death. In ghost-marriage, such rights are contracted with a man who is dead. (See Evans-Pritchard, E. E., Kinship and Marriage among the Nuer (Oxford: Clarendon Press, 1951)), pp. 110, 112, 113.Google Scholar

The levirate and ghost-marriage share only one feature: a man other than the legal husband sires children for a dead kinsman. Elias’ discussion of paternity here and on pp. 85–6 indicates a failure to grasp many of the sociological and legal implications of the distinction between genitor (physiological father) and pater (legal father). See Evans-Pritchard, E. E., Some Aspects of Marriage and the Family among the Nuer (Rhodes-Livingstone Papers, XI (1945) ), p. 19.Google Scholar

page 9 note 1 I did fieldwork among the Kaguru of Kilosa District, Tanganyika, in 1957–58, under a Ford Foundation Grant administered by the Department of Sociology and Anthropology of the University of Illinois.

page 9 note 2 See Beidelman, T., Witchcraft in Ukaguru, in a symposium on African witch craft, eds. Middleton, J. and Winter, E. (London: Kegan Paul, forthcoming);Google Scholar“Hyena and Rabbit: a Kaguru representation of matrilineal relations,” Africa, 31 (1961), pp. 61–74.CrossRefGoogle Scholar

page 10 note 1 I did not check court registers during the months when I was attending court since I feared that this might lead local Kaguru into thinking that I was a government investigator checking court procedure. This, of course, would have prevented my observing the normal course of court actions. After I left the field, I was able to check the records for the period involved. In this way I could observe court cases both as they were seen in the local court itself, and also as they were seen through the court records checked by government officials at the district headquarters.

page 11 note 1 Some informants insisted that Mbaluka could not be a Kaguru, because no Kaguru would have kept such a polluted animal. I could not find any indication that such an allegation about Mbaluka was true.

page 13 note 1 As far as I could make out, Kaguru would consider bestiality a symptom of possible witchcraft, but they would not consider the act in itself a crime.

page 13 note 2 Such an offence has a wider implication than coitus. If it can be clearly shown that a man would have had intercourse with a woman but was caught before this could be accomplished, then he must still pay an ugoni fine identical to that paid for a fully enjoyed act. For example: William was found without his shorts in the hut of Marki's wife. Marki had followed the couple there and caught them before they could do anything. In court, William said, “She only saw my penis; it did not enter her body.” The court ruled that “sexual relations which do not succeed are the same as sexual relations which do”. William's incontestable intentions were sufficient to make him guilty of sexual trespass.

page 14 note 1 I did not find any court cases of homosexuality in Ukaguru, nor were the Kaguru sure how these would be handled if they did occur. When asked, Kaguru either insisted that such practices did not occur, or, if they did think that these rarely occurred, Kaguru said such practices were introduced by Arabs and Europeans and that “there are no punishments for such things, because such things were not done in the past”. Certainly, it does not seem that such acts between adult Kaguru males would fit the Kaguru concept of trespass, since adult males are all considered sexually free agents in a way that women are not. A minor, however, would apparently fit under the same category as a female.

page 14 note 2 Even if a man collects an adultery fine from someone who has had relations with some woman, he still retains full rights to any children of that woman in his charge.

page 15 note 1 Mamjumbe is married and would want to avoid being abused by her husband. Semundo does not have that problem for she is an unmarried prostitute, but even a prostitute would not like the shame of being found having sexual inter course out of doors and in the presence of a third person.

page 15 note 2 This expression seems to have the connotation of “sexual intercourse” as well as “to run”.

page 16 note 1 Perhaps Saidi mistakenly figured that he might escape responsibility for his act. Kaguru say that elderly women often are sexually unsatisfied and have many ways to seduce young men into intercourse with them. Nonetheless, I never found any Kaguru who maintained that such trickery or wiles on the part of these women exempted the men involved from legal responsibility for the intercourse—although it might allow young men to excuse their having such relations with ugly old women.