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Thesis

Courts should find customary law by asking communities what they do now, not by reading what colonial officials wrote down

Thandeka Mokoena Fellow
· 6 replies
LawAfrican & AfricanaIslamic jurisprudenceH. L. A. Hart#customary-law#evidence#legal-sources#living-law
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Its coordinates: 6.2 Philosophy of Law

Where it stands

Under South Africa's Constitution, customary law is recognised alongside the common law, subject to the Bill of Rights. The hard question is a practical one that I watch play out in court: when a dispute turns on custom, how does a judge find out what the custom is?

For most of the last century the answer was the "official" version: what colonial and apartheid administrators, missionaries and anthropologists wrote down, often after asking a few senior men. Those books froze practices that were always moving, and froze them in a shape that suited indirect rule.

Our Constitutional Court has pushed back. In the Bhe case it distinguished official customary law from "living" customary law. In Shilubana it accepted that the Valoyi traditional authorities could develop their own law of succession so that a woman could become chief, and held that courts must respect a community's power to change its customs.

My claim: the source of customary law is the living practice of the community, and courts should establish it the way you establish any fact about a living practice, by evidence from the people who practise it now.

The objections I hear: living law is hard to prove; whoever speaks for "the community" may be the powerful again; and a law that changes whenever practice changes gives nobody fair warning. I think each has an answer. Convince me otherwise.

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6 replies

For the thesis 4

  1. Kwame Asante

    For Fellow

    Hamza, the colonial books were never a cure for uncertainty. They were one kind of testimony, taken from a few chiefs and frozen, and then treated as if it were legislation. In Ghana too, the written versions of Akan custom came from conversations with office-holders, rarely with the women whose lives the rules governed.

    Thandeka's claim doesn't abolish writing. It puts the writing back where it belongs: as evidence of practice at a time, to be weighed against evidence of practice now.

  2. Khalid Mahmood Awan

    For Fellow

    Islamic jurisprudence faced this centuries ago. Custom (ʿurf) is recognised as a source wherever it is widespread and does not contradict the texts, and one of the major legal maxims states that custom is authoritative. The jurists drew the consequence too: rulings based on custom change when the custom changes. A judge who applies the custom of his grandfather's time to a market that has moved on is not being faithful. He is being lazy.

    So there is long practice behind Thandeka's view, in a tradition that cared a great deal about legal certainty.

  3. Aroha Tipene

    For Contributor

    For. Aotearoa has a case from the other side of the world. Our Supreme Court said in the Ellis case in 2022 that tikanga Māori, our customary law, has been and will continue to be recognised in the development of the common law. And the way the court informed itself about what tikanga is was not by reading old colonial reports. It received a written statement of tikanga prepared by pūkenga, recognised experts, after they had met and deliberated together.

    It wasn't perfect, and people argued about whose voices that process included. But it was evidence from living practitioners, which is Thandeka's point.

    Brian's worry about whoever controls the meeting is real. The answer is not to go back to the frozen book. It is to hear more than one voice from inside the community, including the voices the meeting usually leaves out.

  4. Abdikarim Warsame

    For Reader

    For, from a family that settled disputes under xeer, Somali customary law. My grandfather was an elder. Xeer was never written down, and when colonial administrators and later governments tried to record it, they usually recorded the version that the men they spoke to found convenient.

    But I want to answer Brian's worry, because it is the real one. Living law is also decided by whoever controls the meeting. In xeer the meeting was the elders, and they were all men. When a woman was injured, her claim went through her male relatives. A court asking "what does the community do now?" would hear those same voices.

    So I support the thesis with a condition. The court must ask who was allowed to speak when the practice was formed, and look for the people who were not. Interpreting in Minneapolis, I see judges who ask only the person who speaks first.

Against the thesis 2

  1. Hamza Qureshi

    Against Fellow

    Hart's The Concept of Law names the problem exactly. A society that runs on primary rules alone, with nothing settling which rules count, suffers from uncertainty, from rules that cannot be deliberately changed, and from disputes nobody has authority to resolve. Law begins when secondary rules cure those defects, above all a rule of recognition.

    "Ask the community now" reopens the first defect. A tenant or a widow needs to know the rule before the dispute, not after a battle of witnesses. The colonial books were bad, but the remedy is to rewrite them openly, not to replace text with testimony.

  2. Brian Otieno Ouma

    Against Contributor

    My worry is the second objection, and I don't think it has an easy answer. In the communities I work with in Nairobi, "what the community does now" is often decided by whoever controls the meeting. Written law, even bad written law, is something a young woman can take to a lawyer. A living practice described by the elders is much harder to contest.

    Shilubana came out well because the traditional authority was itself on the side of change. I'd want to see how the doctrine does when it isn't.