Chapter 5 argues that an alternative ontological basis, derived from non-Western ontologies, is both possible and urgent for renewing sustainable development. It analyses how the voice of the Global South; particularly Africa, can improve the discourse on sustainable development by evolving a view on the importance of customary law, ethics, and Indigenous norms as law. It echoes the idea of ‘ecology of knowledges’ and the legal value of reviving non-Western epistemologies for sustainable development. The spotlighting of ethics, customary norms, and other forms of local and Indigenous knowledge as legal norms has been done before. However, in this book, I extend the discussion even further and do so through a comparative analysis with other bodies of legal ideas and normativity like transnational law, legal pluralism, and social construction as law in themselves. In this process, I give these ideas a unique twist for the purposes of the overall critical perspective of this project by demonstrating their usefulness for foregrounding customary law or Indigenous knowledge as law. The discussion refracts the idea of reimagining sustainable development praxis through the lens of oft-neglected African legal cosmologies, and how such experiences can provide helpful signposts in Africa and elsewhere.

The transition from an apartheid state to one whose foundation is universal suffrage saw South Africa adopt multiple methods to signify transition from the one form of rule to the other. Such a transition involved, among others, the creation of truth commissions, the amendment of legislation and the promulgation of new legislation – a process collectively referred to as transitional justice. Despite the protections against the arbitrary deprivation of property, provided for in the Constitution of the Republic of South Africa and other pieces of legislation born of transitional justice, there continues to exist a disparity in respect of who South African property law caters for and protects. Against this background, the South African Constitution and case law, this chapter engages the principle of transformative justice to interrogate the conceptions of ownership and property under South African property law. This chapter argues that the current conception of property and ownership serve to, inter alia, economically exclude a large number of South Africans whose property custodianship exists outside of the current conceptions of ‘ownership’ and consequently outside of the recognition of private ownership of land or property.

Nearly three decades since democracy, equitable land reform and redistributive justice continue to elude most South Africans – especially rural women. This chapter argues that traditional leaders’ disproportionate powers account for this failure in ‘traditional areas’. Substantial data and research evidence address (1) how land is a primary site of contestation over traditional leaders’ powers and (un)accountability; (2) how traditional leaders use powers and unaccountability afforded by the apartheid government to stand in the way of democratic governance and economic progress; (3) the citizenship implications of rural people’s subjection to leadership without consultation or choice, and dispossession of ‘informal’, ‘communal’ land rights without consultation or consent, and (4) the direct tie between the impoverished systems of rural democracy and the continued and deepening impoverishment of the people (mostly women) who live in these areas. Analysis of the Itereleng Bakgatla and Ingonyama Trust cases shows how the opportunities and objectives that the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) presents for inclusive land reform remain unrealised.

In his path-breaking book, Constitutional Identity, Gary Jacobsohn not only elucidates the role of constitutional identities but also envisions the coexistence of “seemingly irreconcilable visions of national identity” within a constitutional order. The resulting disharmony he argues is critical to the development of constitutional identities. This chapter asks whether the continued existence and even incorporation of forms of governance that explicitly contradict the founding values of a constitution are simply disharmonic or do they pose a direct threat to the continued existence of a constitutional order? If the latter, we might ask whether differentiating between those social and constitutional elements that are simply disharmonic, and thus productive elements of a constitutional order, and those that might pose a fundamental threat to the constitutional order, might not produce a more sustainable constitutionalism. In sub-Saharan Africa “traditional authority” exists in many forms, including through institutional recognition in many constitutions whose founding values include democracy and human rights. While there is debate over both the nature of democracy and the content of human rights in Africa, the assumption in this chapter is that traditional authorities, represent either a disharmonic element within or an existential threat to democratic and liberal constitutions.

As law is largely a country-specific discipline, formal African legal systems differ from one country to another. The commonly shared feature, however, is that of deep legal pluralism, which produces a multiplicity of normative orders in each society. National legal systems are influenced by colonial history and underpinned by customary law, resulting in a multi-layered legal environment overall. This chapter highlights the influence of traditional usages as a distinct but integral source of business law within pluralist African legal systems. The ‘survival’ of customary arbitration, for instance, clearly indicates the value which local communities attach to familiar transactional and dispute resolution frameworks which more suitably accommodate their voices. This singular feature underscores the importance of an exploratory and inclusive approach to identifying other elements of pluralism in the field of business law in Africa. These include the widening reach of regional law, the huge scale of informal cross-border trade, differing legal frameworks for formal cross-border trade facilitation and the monumental growth of China’s investments in Africa, all of which constitute substantive research areas in themselves in the study of the pertinent subject of legal pluralism in commerce in Africa.

Chapter 6 provides an in depth analysis of the right of self-defence: its essence, dual legal basis and other aspects of its application, including the authorship of an armed attack, the modalities of application of self-defence and the role of the Security Council.

In this chapter, Daniel Franchini and Russell Buchan examine the status, nature, content, and scope of the obligation of peaceful dispute settlement. This chapter traces the emergence of this obligation under customary and conventional international law, analyses the conditions that trigger its engagement, and explores what measures disputants must take in order to discharge this obligation. This chapter maintains that the peaceful settlement obligation is an interstitial norm insofar as it influences the interpretation and application of other rules of international law relevant to the peaceful settlement of disputes.

The author examines how ‘consent’, traditionally taken as a foundational element in international law, fares in the context of international organizations (hereafter IOs). The central argument is that IOs, both as actors consenting to international law and as institutional spaces for other actors doing so, have changed the operation or even the nature of consent in international law as they have made the components of the act of consent disaggregate. The author argues that the IO’s expression of consent has become detached from the psychological or ‘intentional’ state that is presumed to be underlying in the legal subject. Where the organization appears as an institutional space for the consent of others, the object of consent in many instances is detached especially in substance from the normative effect created for the consent-giver.

In all human societies, whether primitive or advanced, there have been legal norms rejecting the use of force. Norms have emerged from custom. Written law may have resulted from the codification and development of customary rules. This happened in Sweden around 1200 A.D. when a central power succeeded in wielding control and secured the unification and development of regional norms into common rules that became binding on all. Over time majority decisions became the established mode of rules adoption. In the international community, no central power has attained control and there has been no legislature adopting rules binding on all states. At Westphalia, in 1648, after the thirty years war, and in Vienna, in 1815, after the Napoleonic wars, the great powers victors felt a responsibility to design a peaceful order. However, it was only through the joint adoption of the Covenant of the League of Nations and the Charter of the UN that the states of the world agreed on binding themselves under legal norms prohibiting the use of interstate use of force.

As the main resource of a large population, land has been the subject of intense debate and dispute in Tanzania. This chapter analyses the existing system of land occupancy rights and its effectiveness in allocating land use rights and avoiding conflicts. The quasi-collectivised Ujamaa system imposed during the socialist era was short lived. The Land Act (1999) presently regulates land allocation. It distinguishes ‘village land’, consisting mostly of smallholders and governed by statutory laws, from ‘general land’, leased to officially agreed users and governed by statutory law. The key challenge is to regulate transfers from village to general land. The present system turns out to be complex, inefficient and conflictive because of the limited surveying of land, the lack of (computerised) recording of land operations, and the intricacy of the law, which generates numerous rent-seeking opportunities. According to Klaus Deininger’s discussion, faster progress can be achieved in surveying and recording because of low-cost technology. As for the law, several reports have been commissioned to evaluate it and to suggest possible reforms, but no changes have been forthcoming so far.

Constitutions come in shapes and sizes. What do we actually mean by a constitution? Does this conception encompass all fundamental legal practices and norms for organising political societies’ legal and leadership systems – commonly denoted as ‘small c constitutions’? Or are we only referring to the so-called ‘large C’ constitutions: the official, formal legally binding document that countries proclaim as ‘Constitution. This chapter explores the different concepts, definitions and elements thereof. Whatever the definition or character of the document, a constitution will have to have a higher status than other forms of written law, Hans Kelsen held, otherwise it would not be a real constitution. Does that always hold true. The chapter also discusses constitutions as a belief system, and constitutionalism.

Tribes are often seen as territorial, pugnacious, and collectivized. In fact, they are quite resilient, individualistic, and readily accepting of others’ practices. When one turns to the law, we can see these features at work in the Berber and Arab tribes of the Middle East, both currently and historically. By starting with the practices of the Berbers of North Africa and then comparing the features they exhibit in their customary law – both substantive and (more importantly) procedural – the similarities to Islamic law are striking. Moreover, it is suggested, this is not surprising, as much of the procedural aspects of classical and modern Islamic law developed out of the tribal background of the Prophet’s day and finds additional support in the precepts of sacred texts. Thus, the comparison of Berber tribal law and Islamic law underscores the continuity of Islamic law, one reasons why it could spread into diverse regions of the Middle East and North Africa so quickly, and why we need to see the spread of Islam not simply as having been carried by military conquest and economic contact but by a form of law that readily resonated with the tribes the new religion encountered.

The conviction that England’s legal and constitutional histories were substantially different than those of other European countries is relatively widespread. To substantiate this claim, many turn their attention to the seventeenth century, which they identify as a pivotal moment in this parting of ways. According to this portrait, it was during this period that a particular English understanding of law, a ‘common-law mind’, emerged, greatly enabling, among other things, important constitutional developments.1

The Lebanese family law system characterized by legal and judicial pluralism controls major aspects of a woman’s rights such as marital, child custody and social rights. While issues of personal status are exclusively left to religious courts and sectarian legislation, it is undeniable that women in Lebanon, are left at the whim of not only an entrenched religious establishment but also cultural norms of patriarchy. Historical practices of Islamic family law issues find little premise in shari’a but rather in the interpretation and implementation thereof. Thus, opening the door to activism and Islamic jurisprudential approach could bring change on religiously delicate issues. In pursuit of gender equality, efforts to reform laws and break the status quo have in certain instances proved successful, yet the transition to a secular personal status law system at the image of Lebanon’s progressive civil society, is far from being reached.

In the following chapters, I analyse several attempts to interrupt the abyssal nature of the modern state emerging from my previous research on sociology of law. I try to identify the reasons why most of such attempts failed. In this chapter, I analyse some of the most salient features of the state and the legal system in Mozambique proposing the concept of heterogeneous state to highlight the breakdown of the modern equation between the unity of the state and the unity of its legal and administrative operation. The centrality of legal pluralism is analysed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridisation with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilisations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived of as an alternative modernity.

This chapter analyses a different type of the popular justice with reference to Cape Verde Islands after their independence from Portuguese colonialism (1975). It is a form of institutionalised justice, officially recognised as such, incorporated in one way or another into the general justice administration system (which is sometimes broadly described as popular justice in light of its local normative, institutional, cultural, and discursive nature, accessibility and deprofessionalised personnel. The Cape Verde local or people’s courts were founded as an extension of indigenous forms of justice administration created as alternatives to colonial law and justice in the liberated zones in Guinea‑Bissau. They were initially adopted informally, then made official in 1979. Through the local courts, the state aimed to encourage popular participation and create spaces in which community culture could flourish, while the values and actions which they stimulated were defined in terms of political criteria directed towards achieving a higher purpose, namely building socialism. I begin with a close-up of a local court at work on the island of São Vicente, before analysing in detail the interfaces and contradictions between the political and judicial legitimacy of the people’s courts, ending with the conclusions of the research and a postscript written forty years later.

Palestinians fall under a dizzying array of laws and courts, which adjudicate their personal status matters. The specific court or law that applies depends both on the religious/communal identity of the person and the area in which the person lives. Those who are residing in the State of Israel as it existed before 1967 are governed by Israeli laws. The Palestinians living in East Jerusalem have also been under Israeli law since the 1967 Occupation. This chapter concerns the personal status law for those Palestinians who are living in the two other main areas – the West Bank and Gaza. Those living in the West Bank are governed by Jordanian Personal Status Law. Those in Gaza are governed by the Egyptian Law on Family Rights. Unfortunately, it does not appear that the respective family laws will be unified in the near future given political and legislative paralysis in Palestine.