The papers collected here can safely be left to speak for themselves. Ranging from Abel's map of some ideal types, conceived at a level of abstraction comparable to Weber's typology of authority, to Sachs' account of a day's work in a Mozambique popular tribunal, they represent very fairly the diverse perspectives from which “customary law” is presently being written about. They show that we are dealing here with a number of different phenomena, and that people have seen these phenomena in sometimes radically opposed ways.

The very label “African Customary Law” has a flavour of the 1950s and 60s about it, recalling that new and exciting area of study which Allott marked out single handed and then enthusiastically encouraged others to join him in developing. The assumption was then that we were dealing with a living, specifically African repertoire of norms and procedures which could be put to work in helping to shape some African “future”. Since then the nature and provenance of this repertoire and the merits of that ambition have been the subject of a lively re-examination; and that discussion was at the heart of the Lisbon conference where these papers originated.

The profitable continuation of that discussion requires that we are clear about the range of meanings which “African customary law” may carry. My own, subjective, marking-out of the field would be along the following lines.

The concept of “customary law” often is used to refer to a particular kind of legal rule—one that is oral rather than written, for instance. Such a conception contains a kernel of truth—customary rules are distinctive—but the focus is too narrow. In this essay I want to look at the totality of legal phenomena in a society—rules, processes, institutions, personnel, and ideology—exploring how they are interrelated and how they relate to other social phenomena. For this purpose I want to construct four configurations of law in society, none of which can be found in its pure form anywhere. Such an ideal type is a heuristic device that, if successful, reveals the dynamic tendencies of a particular configuration and the connections among its parts.

The first configuration, which I will call custom, is found in the pre-capitalist societies of the third world prior to colonial domination. Obviously we never can know what those societies actually looked like, since oral history inevitably introduces nostalgic distortions, and the earliest European travellers and traders were changing die societies even as they were describing them (and of course expressed their own ethnocentric biases). Furthermore, to employ the category “precapitalist” is to invite a number of analytic difficulties: it defines these societies negatively (they are not yet capitalist); and it lumps together societies that differ greatly in economy (e.g., agricultural and pastoral), polity (e.g., chiefly and chiefless), and social structure (e.g., the presence or absence of corporate lineages).

John Berger tells the story of the peasant Lucie Cabrol in terms of her “three lives” because she lived and lived on in three different ways. Readers of the story in Lucie Cabrol's village say she now has four lives. The fourth is in her story. My theme to-day is that representations of knowledge give a life to that knowledge. This life shapes the object of the knowledge. That may appear an intensely academic concern and it is. But I will show that it is, in the same moment, an indispensible practical and political concern.

I start in good company with that body of revisionist scholarship which shows that traditional law or customary law was a creation of the colonial period. For an initial instance, I will depart once only in this lecture from Africa for Oceania. I use this instance because it is compact, irresistible and needs to be better known to legal science. In colonial Fiji, British officials, for the purpose of what the British called good government, sought “to seize … the spirit in which native institutions have been framed”. In the Native Regulations they erected, as one anthropologist put it, “the first code of Fijian custom set down in writing after discussion by representatives from all parts of the Colony and, generally speaking, the great body of custom that it contains has been understood for generations; and so it was not something new and therefore suspect to the Fijians to whom it was applied”.

The ways in which local normative systems and processes of decision-making in Third World states have been interpreted and transformed by colonial and postcolonial lawyers, administrators and social scientists have received much scholarly attention. During the past 15 years in particular, the “creation of traditional law” in Africa and the “myth of adapt” in Indonesia have became a special topic in the writing of legal anthropologists, largely influenced by scholars such as Asad arid Said. In recent years analyses have increasingly focussed upon the economic and political forces and purposes behind the transformations and on their consequences rather than on their underlying ethnocentric conceptual biases.

In his paper “Traditionalism and Traditional Law” in this volume Peter Fitzpatrick presents an elegant, sophisticated and critical account of the main strands of analysis in the discussions about the creation of customary or traditional law. In my comment upon his views and those of other authors which he discusses I am not so much concerned with a critique; I would rather like to expand and amend these views by enlarging the analytical framework in which they should be seen. My concern is with the selectivity of these analyses. Firstly, I think that they usually tend to generalize from a limited (set of) context(s) in which the creation of customary law has been observed, such as adjudication in colonial courts or academic writing and teaching in colonial law.

In this paper I discuss some aspects of the relationship of African customary law to the economy. Such a vast topic potentially embraces at least three different themes: the economic context in which African customary law has developed and operates today; the economic consequences and implications of different African customary laws; and the relationship between customary law and the economic aspect of society. These three themes inevitably overlap, but while recognising their interconnections I shall concentrate primarily on the third. My principal aim is to identify some of the linkages between customary law and economic relations, especially those linkages which become manifest during broad social changes.

An examination of the relationship between customary law and the economy in Africa almost ineluctably requires an historical perspective. This is so, first, because, as I suggest later, customary law is historically specific: it developed in particular historical circumstances and in close conjunction with the formation of the colonial state. Thus, the foundations of customary law in Africa lie partly in the development of capitalism and its expansion from Europe during the colonial era. These interrelated processes have decisively moulded and subtly shaped the law, legal institutions and legal professions of contemporary Africa.

More generally, however, it is essential today to envisage the possibility of new, alternative forms of development and social regulation. The particular forms of legal pluralism which characterise third world countries indicate, in many cases, that the subsumption of African economies within capitalist relations of production and exchange has thus far been merely partial and formal.

In assessing customary law two quite contradictory tendencies exist. Some approach customary law deferentially, even reverently. This constitutes “our” law. It expresses “our” values. We must nurture it. Others take precisely the opposite perception. Customary law constitutes the law of primitive tribes; we aim to become modern; ergo, we must do away with customary law. How to choose between these quite conflicting perspectives?

We argue that to understand customary law, we must understand its political economy, that is, the function it performs in existing socio-economic and political structures, particularly with respect to the class interests involved. We undertake here to put forward our understanding of the political economy of customary law in the English-speaking countries of Africa. To do that, we describe, first, the difficulties which require explanation and solution, that is, the poverty and vulnerability of the mass of Africa's people; second, for that poverty, we attempt an explanation, which takes the legal order as the manipulable variable; and, finally, we suggest briefly options for reform and change.

What I should like to do today is to examine the evolution of customary law in English-speaking Africa over the last three decades. I have chosen my starting date of 1950 with a clear intention in view; because the developments that we observe currently taking place often find their origins in the colonial period. They do this in two ways. First, the laws which the African countries inherited at independence had been crucially shaped by the colonial experience; and secondly, some of the projects of law reform which have either taken place or are now under discussion trace back to initiatives and discussions which occurred during the latter part of colonial rule. There is a further factor: quite apart from conscious efforts to analyse and change the laws, the laws themselves, of whatever kind, have been exposed to the forces of economic, political and social change, which are continually working away below the surface, sapping the foundations of the existing legal systems.

My own qualifications for this task I do not feel that I should dwell on. However, it is worth remarking, as symptomatic of the profound upheavals which have occurred within the period, that I was appointed to the first post in Britain of lecturer in African law in 1948. This was the period of the immediate post-war reconstruction of the British colonial empire in Africa. Things were not the same as they had been up to the Allied victory in 1945.

Throughout all Portuguese colonial history in the African continent, the question of recognizing oral local laws, the so called “customary laws”, and the koranic law in some areas of Guinea and the northern region of Mozambique, could never be separate from the constitutional law applicable to the aboriginal inhabitants who follow it in their daily lives. That is the reason why accepting the principle according to which the everyday-life relations of Africa could be controlled by specific juridicial rules distinct from Portuguese “common law” was always connected with the private and territorial validity of the individual rights and guarantees included in the constitutional texts concerning Africans. As a logical consequence of this link between citizenship and the application of the Portuguese law in force in the metropolis, applying traditional law always depended on the political concepts formed during the present century, as Portuguese sovereignty, until the end of the nineteenth century, was restricted to small littoral centres and the practice of authority in the other regions acquired at the Berlin Conference was deficient or merely nominal.

The African juridical rules were always tolerated, as a means of securing colonial public peace or as a necessary condition for the smooth practice of Portuguese sovereignty beyond its European frontiers.

The Kwandu are an agro-pastoral people of about 2,000 persons who inhabit the area of semi-desert around the Serra da Neve near the MoÇamedes Desert. Kwandu law has largely evolved in the context of a particular notion of time held by this people for whom the past is alive in the present and history interacts with events of the moment. Among the Kwandu the past is one of the main subjects of daily conversation, a vital component of their oral traditions as well as an enduring feature of their re-enactment of the lives of ancestors, of religious ritual and of the symbolic and value-systems of the group. This study brings together data collected in 1970 and 1971 when I lived for fourteen months with the Kwandu. During this period I shared their daily lives and spent many hours listening to the telling and re-telling of past events, gaining, in the process, an insight into their way of thinking and feeling, the essential key to an understanding of their history.

The oral history of the Kwandu is permeated by a concept of time which demands the constant revival and re-enactment of the past. Whenever a narrator evokes an ancestor he becomes that ancestor and transposes himself to the time of action to confront and re-live the events of the past. In this way all narratives, including many which go back several centuries to the most remote events in the collective memory, are recounted in detail, in the first person and in the present tense.

The Portuguese-speaking countries represent rather varied socio-political realities and are going through very different internal developments. They share, however, some fundamental similarities within the contemporary African context. I will distinguish two characteristics of particular significance for the topic I propose to treat here.

It was July 1979 and we were in a small village in northern Mozambique, 1500 km from the capital. In the background I could hear viva's being shouted and drums being beaten but my excitement was of another kind, the cool excitement of an English-trained legal empiricist about to discover facts, in this case, not only facts, but virgin documentary facts. Because right in front of me on the table in the shade of a large cashew tree, lay a big book with heavy binding, and in that book lay the first judgments of one of the first Popular Tribunals to be created in the first revolutionary country in Southern Africa. I had already sat in on the lectures given at the Law Faculty to the young law students who were to constitute small brigades to start what was called the implantation of Popular Justice. I had heard from veterans of the armed struggle for national liberation how the basic principles of this system had evolved in the Liberated Zones even before Independence; how Popular Justice meant justice that was popular in form, in that its language was open and accessible; popular in its functioning, in that its proceedings were based essentially on active community participation; and popular in its substance, in that judges drawn directly from the people were to give judgment in interests of the people.