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“Essays in African Law”
Published online by Cambridge University Press: 28 July 2009
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- Review Article
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- Copyright © School of Oriental and African Studies 1960
References
1 E.g. Sarbah, , Fanti Customary Laws … with a Report of some cases decided in the law courts (1st ed., London, 1897);Google ScholarHamilton, , East African Protectorate Law Reports, 1897–1905 (London, 1906).Google Scholar The reporting of the cases of the higher courts is now well-nigh universal throughout Africa south of the Sahara, see the check-list of reports for British Africa in Schiller, Syllabus of African Law (mimeo., New York, 1960), II, 23–37.Google Scholar
2 E.g. Rattray, , Ashanti Law and Constitution (Oxford, 1929);Google ScholarSchapera, , A Handbook of Tswana Law and Custom (1st ed., London, 1938).Google Scholar
3 The peculiarly African element in the law has been a separate department of study from Maclean's A Compendium of Kafir Laws and Customs (Mount Coke, 1858) to the second edition of Seymour's Native Law in South Africa (Cape Town, 1960).Google Scholar
4 The author of this review-article likes to think that the English translation of a leading Dutch work on the law of the indigenous peoples of the Indonesian archipelago played a small part in fostering this interest: Haar, B. ter, Adat Law in Indonesia (New York, 1948).Google Scholar Its pertinence to African law was pointed out by Allott, (1951), 67Google Scholar L.Q.R. 132, as well as by Gluckman, , (1949) 31 J. Comp. Leg. & Int. Law, 60.Google Scholar
5 Essays in African Law, with special reference to the law of Ghana (London, 1960), xxviii, 323 pp.Google Scholar
page 176 note1 Burge, , Commentaries on Colonial and Foreign Laws, I (1838), xxxi ff.; 5 Halsbury's Laws of England (3rd Edn) (1953), 691 ff.; The Migration of the Common Law, (1960) 76 L.Q.R. 39 ff.Google Scholar
page 177 note 1 Page 66.
page 177 note 2 The conclusions which the court derives from the evidence are, however, findings of law, and hence subject to appeal; see p. 260.
page 178 note 1 ter Haar, Adat Law in Indonesia, 228 ff., and further reff., 232 note 2.
page 178 note 2 The use of the term was challenged at the recent conference in London, see The Future of Law in Africa, Record of Proceedings (1960), 3 ff.
page 178 note 3 For a statement of the project, [1959] J.A.L. 149 ff.
page 178 note 4 Further references on the possible measures and techniques for the development of the law, in Schiller, op cit. supra, p. 175, note 1, 19 ff.
page 178 note 5 Op. cit. supra, 30 ff.
page 179 note 1 The earliest usage of this term is probably by Arminjon, “Le droit international privé interne, principalement dans les pays musulnans,” a series of articles in Jour, du droit intern, privé (Clunet), vols. 39 (1912) and 40 (1913).
page note 179 2 Allott does give illustrations of English law administered by native courts, pp. 249 ff.
page 180 note 1 For example, what tribal law to apply when a Haya from Tanganyika is disputing a native of Ankole (Uganda) in the Mwanza local court, Lake Province of Tanganyika.
page 180 note 2 The terms for the different levels which have been suggested by scholars of various lands, a very numerous lot, are presented in full by Vitta, Conftitti interni ed internazionali, Vol. I Mem. d. 1st. Giur., Univ. de Torino, ser. II, LXXXVII (1954), 17 ff. Among the best known, below the international level, there are (1) conflict of laws between regions of a state, federation or larger union, known as interregional law, inter-provincial law, inter-state law, etc., (2) conflict of laws depending upon the personal law of the parties, inter-personal, inter-racial, inter-religious law, and (3) conflict of laws between different groups of a single ethnic element, inter-local law, inter-tribal law.
page 180 note3 E.g. Goadby, , International and Interreligious Private Law in Palestine (1926); Bartholomew, “Private Interpersonal Law,” (1952) 1 C.L.Q,. 325 ff.; Matson, “Internal Conflict of Laws in the Gold Coast,” (1953) 16 M.L.R. 469 ff.Google Scholar
page 180 note 4 See Vitta, op. cit. supra, 33 ff., with most extensive bibliography.
page 181 note 1 As recently as Resink, “Conflictenrecht van de Nederlands-Indische Staat in internationaalrechetelijke zetting,” Bijd. tot de Taal-, Land- en Volk. 115 (1959), 3 ff. In English consult specifically Kollewijn, “Interracial Private Law (The Colonial Conflict of Laws),” in The Effect of Western Influence on native civilisations in the Malay Archipelago, ed. Schrieke, B. (Batavia, 1929), 204 ff.; Kollewijn, “Western and non-Western Law”, (1951) 4 Int. L.Q. 307 ff.; Schiller, “Conflict of Laws in Indonesia,” (1942) 2 Far Eastern Q., 31 ff.Google Scholar
page 181 note 2 Kollewijn, , Intergentiel recht; verzamelde opstellen over intergentiel privaatrecht (‘s-Gravenhage, 1955).Google Scholar
page 181 note 3 The majority of these court decisions were published in the general legal periodical, Indisch Tijdschrift van het Recht, and its two predecessors. The headnotes of Indies cases were distributed on cards periodically, affording the legal scholar as well as the practitioner a complete and current file of case-law, under appropriate subdivisions. A suggestion for possible application to the reports of African cases.
A selection of headnotes of Indies conflict of laws cases, in English translation, serves as the introduction to African case-law in the same field, Schiller, Syllabus of African Law, III, 1 ff.
page 181 note 4 Op. cit. supra, note 4. I may report that the fundamental work on the law of the indigenous population of the East Indies, that of Vollenhoven, Van, Het Adatrecht van Nederlandsch-Indië, three large volumes (Leiden, 1931–1933), is in course of translation into English, according to information provided by Prof. Keuning of Leiden.Google Scholar