A CLASH OF CULTURES: INTERACTIONS BETWEEN COMMON-LAW LEGAL CULTURE,

ETHNIC NATIONAL CULTURES, AND STATE CULTURES IN POST-BRITISH-COLONIAL

AFRICA

Chris Benedik

Introduction

Both scholarship and jurisprudence has rooted a “right” to

practice customary law in modern African constitutional

states in the right to cultural participation enshrined in

those constitutions.1 From the legal perspective, it is

important to recognize this “right” not just as one to

freely practice modes of culture “in accordance with which

people live,”2 but as one in which the state is obligated to

positively enact some form of customary law. The African

1 See, e.g., T.W. Bennett, Re-Introducing African Customary Law to the South African Legal System, 57 Am. J. Comp. L. 1, 7 (2009) (“Accordingly, sections 30 and 31 of the Final Constitution of 1996 gave all persons a right to participate in the cultures of their choice and, because customary law was closely identified with an African cultural tradition, the courts accepted that those claiming application of customarylaw could base their demands on the right to culture”).2 E. Dalton-Brits, The Changing Face of Customary Law in South Africa: A Dualistic Examination of the Viability of the Van Breda-Test and a Call for Revised Criteria for Customary Law to Have an Existence Right in the 21st Century[working paper], 4 (2011).

Charter on Human and People’s Rights, though predating many

modern African constitutions, includes language endorsing

this state-obligatory mode of customary law in Art. 17(3):

“The promotion and protection of morals and traditional

values recognized by the community shall be the duty of the

State.”3

This paper will focus on the obligational aspects

recognition of customary law places on legal actors,

particularly courts, vis a vis not just customary law as a

body of law, but as an element of and a product of culture

itself. This paper will deal with various modes of culture,

from that of a national group or people (i.e. of the

Basotho), to that of, or at least a product of, a state-

based identity (i.e. of South Africa as a state), and how

various courts and constitutional regimes interact with and

reflect back upon them.

This gives rise to the initial question of “what is

culture?” While culture itself is a contestable category, it

must first be defined in order to be dealt with 3 The African Charter of Human and People’s Rights, Article 17(3).

relationally. For our purposes, a (relatively) expansive,

and certainly nonstructuralist view will be of use. A

“system of social relations . . .is itself culture,” for

these purposes, including familial relations, social

structures, even ideas, rather than something mental,

cultivated, and separate from social structures.4 We will

not, however, go as far as Sahlins did, as to collapse “any

and all forms of human practice”5 into the rubric of

“culture,” will prevent any comparison with state organs,

particularly the courts systems, and the interaction between

culture on the one hand and courts on the other is where we

seek to focus, not what we intend to argue is one and the

same.

Refusing to collapse all practice into culture seems

naturally to fit the African experience far better at first

brush. It makes more sense to discuss Zulu culture and its

role within, and interactions with, both South African

culture as a whole, and with the institutions of the South

African state. This paper, hopefully, will reveal some of 4 See MARSHALL SAHLINS, CULTURE IN PRACTICE, 16-17 (New York, 2005)5 Id. at 16

the tensions inherent in this interaction, especially when

accepting that the organs of the state itself, namely its

courts, have within them a culture as well.6 This paper,

then, more specifically, hopes to discuss some of the issues

that emerge in the interactions between that culture of the

courts, “legal culture,” and the individual cultures it

recognizes in giving rise to customary law, generally

“popular culture,” although examples will be discussed in

terms of Tswana, or Zulu, etc. culture. Interactions between

legal culture and “state culture,” i.e. the body of social

practices that are Zambian, or Kenyan, rather than

particularly belonging to one ethnicity, will be viewed

through the same lens.

Part I will be a brief discussion of the history of

some African states, introducing their court systems and the

6 One positive consequence of an nonstructuralist definitionof culture is that it allows symbolism to remain central, see SAHLINS, supra note 4, at 18. The presence of symbolism also justifies limiting culture as I do. Take the example ofsymbols of power – the judicial robe and wig and the Zulu leapordskin warrior costumes, though with a common raison d’être, are so obviously from different symbolic cultures that there is much to be gained by accepting this and treating those cultures separately, and so capable of interacting.

paths they took to postcolonial independence as

constitutional states. This paper will be limited to

discussion of states that were formerly British colonies,

including South Africa; partly for linguistic and practical

reasons, but also for the added benefit that these states,

in sharing the Common-law system of courts and legal

culture7, have legal cultures that can be discussed in the

aggregate as one common-law “legal culture.”8 Part II will

discuss, referencing scholarship and jurisprudence, the

methods by which this legal culture has interacted with

national culture, with a focus on the constitutional and

individual rights focus of legal culture and the tensions

that creates with national cultures and the customs and

customary laws they carry with them. Part III will, more

7 For our purposes the Roman-Dutch origins of much of South African law is not relevant, as their legal system interactswith culture and customary law in the same manner as British-originated systems, see Shilubana v. Nwamitwa 2008 ZACC 9 ¶ 74 (discussing the obligations of South African courts to develop customary law as they do the common law).8 Note the discussion by the High Court of Botswana in Mmusi and others v. Ramantele, [2012] BWHC 1, of various jurisprudence of other common law courts, from America, to Australia, and South Africa, and the self-identification of the Botswanan court as part of the same tradition and culture.

briefly, view the interactions these cultures have with

state cultures of the various countries involved. Its focus

will be less strictly discursive, unlike Part II, and more

polemic, aiming to show that these interactions are neither

merely bidirectional nor occurring in a vacuum. Finally, a

brief conclusion will focus on questions raised and left

unanswered.

Part I: History, or the Imposition of State and Legal

Cultures

This section is not intended to be a full history of African

colonial experiences, nor to tell the full stories of the

establishment of independent African states. Instead, I hope

to lay out enough of a narrative so that the imposition and

locations of the various loci of separate cultures can be

determined.

During the 19th century, the British Empire colonized

and conquered much of southern Africa. The British imposed a

dualist system on the colonized territories – importing the

substance and methods of their own common law, yet

recognizing extant customary law structures, albeit limited

to governance in certain areas of “natives” themselves and

relations between them.9 The British also brought with them

their courts system, into which they either integrated

native courts or placed the “British” system in a

supervisory role.10

In South Africa, for example, customary law was limited

by statute to only apply in cases where both litigants were

black.11 The courts that could apply such law were also

limited, both in terms of which courts could even apply

customary law as a rule of decision, and by so-called

“repugnancy” clauses.12 A similar structure was present in

Zambia – native courts had jurisdiction over civil disputes

between African parties, and some criminal disputes where 9 See Muna Ndulo, Customary Law and the Zambian Legal System (CourseAssignment 3b), 122 (“The colonial regime recognized customary law at the outset. This is particularly true in areas of personal law [while] [i]n some fields customary lawwas replaced by Western law.”).10 See id. at 123.11 Chuma Himonga & Craig Bosch, The Application of African Customary Law Under the Constitution of South Africa: Problems Solved or Just Beginning?,30712 See id. (“[Customary] disputes were also reserved for resolution by special tribunals . . . and . . . the relevantcourts were not allowed to apply customary law that could beconsidered ‘opposed to principles of public policy or natural justice’”).

the accused was African, so long as no non-African witnesses

were necessary.13 Review was also to an administrator,

rather than up the appellate hierarchy of the common-law

court system.14

The system in other British colonies was largely

similar – dual court systems, one applying European law in

all cases with a European party or touching on an area of

law covered by “imported” legislation, and the other

applying customary law in cases involving African parties in

areas left governed by custom.15 Usually, the decisions of

the customary law courts were reviewable by either an

administrator or a higher court, if not to each colony’s

court of last resort.16

Along with this formalist dualism between common-law

and customary court systems, there were vast functional and 13 Ndulo, supra note 9, at 123.14 See id.15 See, e.g., William Twining, The Place of Customary Law in the National Legal Systems of East Africa, Lectures Delivered at the University of Chicago Law School, 1-3 (1963)16 South Africa, for one, did not give customary law a placein its Supreme Court. See Santam v. Fondo, 1960(2) SA 467 (A) (holding that the common law “is the only legal system . . .that can be applied in an action instituted in the Supreme Court.”)

procedural disparities between the two. Oftentimes the

customary court was also a traditional body – a village

council, a group of elders, etc.17 Unlike the common law,

throughout much of the modern history of these countries,

courts could not take judicial notice of customary law, and

required its content be proven as an evidentiary matter.18

Customary courts also followed a more informal procedure –

there were no lawyers available in a customary court, nor

were technical questions of procedure allowed.19

Furthermore, decisions are rarely if ever recorded or

circulated; the impact on precedential value is less so than

it would be in the common law system as the cultures

themselves, and thus the customary law, can change

organically, lessening the value of past decisions.20

17 Carlson Ayangwe, The Whittling Away of African Indigenous Legal and Judicial System[sic], 48.18 See, e.g., Himonga & Bosch, supra note 10, at 307 (discussinghow the 1988 Law of Evidence Amendment Act changed customaryrules so that they were no longer “facts that needed to be proved before the courts”).19 See Twining, supra note 15, at 6-7.20 See The Customary Law of Lesotho (Course Assignmetn 3a) 112-113.

In contrast, the common-law court systems of these

colonies functioned in a manner sufficiently familiar to

require less explanation. The courts decided based on an

exported body of English law,21 “received” in the colony on

a specified date, along with local legislation and post-

reception English statutes specifically adopted by the local

legislature.22 Parties had advocates before the courts, in

“traditional” procedural postures,23 where cases resulted in

written decisions with precedential value.

This binary system continued largely throughout British

African colonies until independence. Many of the newly-

independent states maintained a dualist system of customary

and common law, but integrated their court system and made

customary law more widely available as a rule of decision in

the courts, particularly at the lowest level.24 Some states 21 Though the colonies were of the British Empire, the law was specifically English law.22 Ndulo, supra note 9, at 121.23 Traditional, of course, to those familiar with the common-law and its legal culture.24 See, e.g., Ndulo, supra note 9, at 123 (“The local courts are established by warrants issued by the Minister of Justice . . . [d]ecisions of the local courts can be appealed first to the subordinate courts and then to the High Court and to the Supreme Court.”); Himonga & Bosch,

sought to either unify customary and imported rules of

decision into a single legal system, while others sought to

do away with customary rules altogether, yet no state

reverted solely to a customary system and rejected the

imported bodies of law.25

Also, these newly independent countries adopted

constitutions for the first time, often with expansive

individual rights guarantees. Customary law was, for the

first time in many of these countries, officially recognized

and placed on an equal footing as the common law. The South

African constitution, for example, discusses common and

customary law in the same breath, both as viable sources of

the law.26 The Nigerian constitution, as well, implicitly

enshrines customary law as a valid source of rules of

decision.27

supra note 11, at 309-310 (discussing the similar process inSouth Africa after that country gained freedom under the Interim Constitution of 1994).25 Ayangwe, supra note 17, at 48.26 The Constitution of the Republic of South Africa, Art. 39(2) (“when developing the common law or customary law, every court, tribunal, or forum . . .”).27 The Nigerian Constitution, in creating Customary Courts of Appeal, requires that prospective judges at least have “considerable knowledge of and experience in the practice of

In the same breath as these constitutions recognized

and enshrined customary law, they limited it. In South

Africa, for example, the Constitution is the supreme law of

the land, and any law in conflict with it is invalid –

including customary law.28 Botswana is the same – the

Constitution is superior to custom and custom that is

inconsistent with it cannot continue to be enforced, at

least legally.29 The new Zimbabwean constitution also

appears to follow this pattern – Article 46 requires that

courts, “when developing the common law and customary law,

every court, tribunal, forum or body must promote and be

guided by the spirit and objects of [the Declaration of

Rights].”30 Some countries, however, protect customary law

from otherwise-applicable rights protections.31 Possible

customary law,” impliedly treating it like a body of practiced law and not simply a product of culture.28 See A.J. Kerr, The Constitution and Customary Law, 47.29 Dow v. Attorney-General, 1994 (6) BCLR 1 (“A constitutional guarantee cannot be overridden by custom. Of course, the custom will as far as possible be read so as to conform with the constitution. But where this is impossible,it is custom not the Constitution which must go.”).30 Constitution of the Republic of Zimbabwe, Ch. 4 Art. 46.31 See, e.g. Constitution of Zambia, Art. 23 (“[Rights provisions] shall not apply to any law so far as that law makes provision . . . for the application in the case of

reasons for these differences will be briefly raised in part

III; until then, it is more important to note the

constitutional recognitions of customary law, which requires

the court system of these states to interact with that body

of law more fully. It is that interaction which serves as

the main focus of part II.

Part II The Interactions Between a Legal Culture and

National Cultures

Section 31 of South Africa’s provides a useful starting-off

point for discussing the interactions between these two

cultures. It guarantees that “[e]very person shall have the

right to use the language and to participate in the cultural

life of his or her choice.” Scholars have noted that this

guarantee is the source of the inclusion of customary law in

South Africa’s constitutional structure as a body of rules

of decision.32 The South African Recognition Act recognizes

customary law as “form[ing] part of the culture of []

peoples.”33 Customary law, then, is best seen as a function

members of a particular race or tribe, of customary law . . .”).32 See Himonga & Bosch, supra note 11, at 310.33 Section one of the SA Recognition Act.

and product of a particular culture, as its presence is

rooted in access to culture. As briefly discussed above, the

culture referenced here is national or ethnic culture – a

Zulu has the right to participate in Zulu cultural life,

including live by Zulu law, as a Venda has the right to the

same with Venda culture and law.

The particular element of this right to culture that is

the right to be governed by customary law is unique in that

it is mediated through the court system, and thus through a

different culture, the legal culture,34 to which it is

imperfectly suited, and to which it must adapt as that legal

culture simultaneously adapts to it. Without begrudging the

point too far, it is clear that there is a tension between

customary law culture (meaning the general modes and norms

of customary law itself, rather than the content, which I

have been terming as a function of national culture) and

common law culture. Customary law is often unwritten,

customary decisions certainly are as well, where the basis

34 At least to the extent that decisions involving customarylaw are appealable and heard beyond customary courts, which they quite obviously are.

of the common law is a series of written, previous judgments

with precedential value. The common law is structured around

lawyer-governed adversarial proceedings in each case,

whereas customary proceedings lack lawyers wholesale and are

often focused on reconciliation or social redress, rather

than individual claims.35

One element of tension that emerges immediately is that

of the source of the rule of decision itself. I do not mean

that in the sense of where does the power to decide a case

come from, but where does a court find the substance of a

rule of decision. The South African Constitutional Court, in

the case Gumede v. President,36 which posed “intricate questions

about the relative space occupied by pluralist legal systems

under the umbrella of one supreme law, which lays down a

common normative platform,”37 was “mindful of the

distinction that should properly be made between a

particular version of ‘official’ or codified customary law, 35 See Twining, supra note 15, at 8 (“There was no question of a complainant claiming his individual rights; the tenor of clan life had been upset and the injured party wanted it restored.”).36 [2008] ZACC 2337 Id. at ¶ 1.

which should not be equated with living indigenous/customary

law – a matter to which I revert later.”38 It is this

distinction that we first turn to, starting with Gumede

itself.

At issue in Gumede was the distribution of property

after the breakdown of a customary marriage. Mrs. Gumede was

a woman who sought a declaration, before her divorce, that

the statutory provisions dealing with property distribution

were constitutionally invalid.39 The Recognition Act (which

allowed full recognition of customary marriages) held that

all marriages commenced after a date in 2000 would be in

community of property,40 but left all customary marriages

entered into before that time governed by the customary

property system in place.

The regime governing the Gumede marriage was codified

customary law.41 In this case, the relevant code provision

specified that a (male) family head is the owner of and has 38 Id. at ¶ 11.39 Id. at ¶ 8.40 In line with legislative power to modify customary law.41 See id. at ¶ 23 (“Both consider themselves spouses in a customary marriage and bound by the codified customary law of KwaZulu-Natal”).

control of all familial property in the family home.42 At

issue was whether the Recognition Act, so far as it allowed

pre-2000 customary marriages to be governed by existing

(discriminatory) statutes, violated constitutional

guarantees of equality – the Court was to eventually come to

the conclusion that it did so.43

Without focusing specifically on the substance of the

particular case, two elements present in Gumede highlight

the tensions I hope to draw out. The Court noted that one of

the specific benefits of the Recognition Act is that “it

[sought] to salvage the indigenous law of marriage from the

stagnation of official codes and the inscrutable

jurisprudence of colonial ‘native’ divorce and appeal

courts.”44 In “salvaging” the substance of indigenous

marriage law from the rules laid down in official codes, the

Act itself created a substantive rule of law governing these

marriages – “A customary marriage entered into . . . is a

42 See id. at ¶ 26.43 Id. at ¶ 49.44 Id. at ¶ 24.

marriage in community of property and of profit and loss

between the spouses.”45

This substantive rule, though it may be qualitatively

“better” than the old codified rules, in the sense that it

is in line with constitutional guarantees of equality, is no

closer to the national culture in which a customary marriage

is taking place than the old, codified customary rules.

Whatever merits and defects of the anthropological and legal

research that led to the written exposition of customary law

in the old KwaZulu and Natal codes, the solution of the

Registration Act is no solution at all, in terms of drawing

out a rule of decision from actual cultural practices.

Instead, the legislature has swapped one codified rule of

decision, that customary marriages in KwaZulu-Natal are

governed by the marital property codes in those provincial

codes, for another, that customary marriages are in

community of property as governed by the Recognition Act.

It is telling that despite Gumede talking about

freeing customary law to return to actual “living culture,”

45 SA Recognition Act, § 7(2).

the state legal system was able to do no such thing.

Instead, the system worked within the norms of its own

culture – laying out a written rule of decision to be

applied in future cases. While it is true that the new rule

of decision comports with rights protections in the

constitution, that does not mean that the rule is a function

of national cultural practice, as an actual rule of social

relations present in an ethnic group. The constitutional

elements of issues like those in Gumede will be drawn out

more in part III, and partially dealt with by seeing these

rights protections as elements of state culture, but that

does nothing to bring the rules applied closer to lived

national culture.

An aside in Gumede also reveals insight into the

relationship of legal and national culture. While the Court

found it inappropriate to do so in that case, the principle

was presented that “courts have a constitutional obligation

to develop customary law in order to align it with

constitutional dictates.”46 Courts, however, particularly

46 Gumede, at ¶ 29.

such a high court as the Constitutional Court of South

Africa, are simply not members of a single “system of social

relations,”47 and so if they are developing customary law,

they must do so outside of national culture. In other words,

court-driven development of customary law, when a court does

so in the manner it develops of common law,48 must be

happening outside of the development of social relations

within a national culture and so moving customary law by

some degree away from the actual practices of that culture,

at least temporarily. This, at the very least, must be seen

as problematic in light of the Art. 3149 guarantee of the

right to practice culture, as “social relations” will be

following legal rules, forcing cultural practices to comport

to the law and not originating that law in culture in the

first instance.

This is not intended to paint a wholly negative story.

Courts have certainly at times been able to recognize 47 SAHLINS, supra note 4, at 16.48 See Shilulbana, at ¶ 74 (discussing the parallel obligationscourts have to develop common and customary law, and the parallel considerations they must heed when doing so).49 Of the South African Constitution – other states have similar guarantees and the same paradigm applies.

cultural developments, rather than be the impetus for them.

The Shilubana case itself is an example of this practice. In

that case, the Constitutional Court overturned decisions of

the lower courts vacating a chieftanship succession among a

tribal community as violative of customary law. The Court

termed its own work in that case as “recognizing the

development by a traditional community of its own law,” and,

assuming that that is true, then a court within the legal

culture was able to recognize, and enforce, living cultural

practice.50 Commentators have noted, however, that this

itself poses some danger due to the nature of decisions in

legal culture: “[t]he danger is that, in view of the stare

50 This is saying nothing about the impetus of the change incultural practice itself being the new South African Constitution - cultural changes themselves must come from somewhere, and in Shilubana a motivating factor seems to be the influence of state culture, through Constitutional guarantees to all South Africans, on national culture. Of course changes in living national culture are not sui generis, and must have some motivation, my concern is the tension when they are imposed on a cultural group from the outside without a coordinate, or pre-imposition, change in cultural practice itself.

decisis doctrine, such perfunctory findings may harden into a

new ‘official’ law rule.”51

While the Shilubana case does present an alternative

mode of interaction between legal and national cultures, one

much more inline with a conception of customary law being an

element of cultural recognition and protection, it is not

without its own issues. Of note is that the Constitutional

Court reversed lower court decisions, highlighting something

that the Court clearly noted: “’Living’ customary law is not

always easy to establish and it may sometimes not be

possible to determine a new position with clarity.”52

However, if customary law is to meaningfully embody the

rules of social decision and organization of a living

culture, courts must do so.

How, then, do courts determine the actual contents of

culture, such that customary law can emerge from them? One

manner is assessors, basically expert witnesses. Those “well

versed in the customary law” act as an expert witness for

51 JC Bekker & IA van der Merwe, Proof and Ascertainment of Customary Law, 124.52 Shilubana, at ¶ 46.

the court as to the content of custom,53 as provided for by

the codes of many African countries.54 This poses its own

problems - note the case of Mabuza v. Mbatha, where, in

determining the necessity of a ritual practice for the

validity of a valid marriage under Swazi custom, the court

heard from two expert witnesses, one of whom was unreliable,

and one who knew nothing of the custom at issue.55

Beyond the availability of assessors, their identity is

of note. While no longer constrained to chiefs or headmen as

they once were,56 the choice of expert witnesses still

limits the voices allowed to “officially” pronounce what is

custom, and thus what is law. Even if the legal limits on

assessors have been dropped, the assessors remain those

recognized by the state as authorities on customary law –

chiefs, tribal leaders, and the like. When culture has

changed in a manner that dispossesses the traditional

sources of some of their power, i.e. where the cultural

practice itself is contemporaneously being contested or 53 See Lesotho, supra note 20, at 103-4.54 See Ndulo, supra note 9, at 125.55 Bekker and van der Merwe, supra note 51, at 126.56 See Lesotho, supra note 20, at 103.

modified, as it arguably was in Shibulana, those typically

asked to speak for custom have their own incentives to

proscribe an advantageous rule rather than one that reflects

living culture. Where there is a contest within a culture as

to a new norm, or the continuation of an old one, the legal

culture’s search for expertise often leads to the voice of

vested interests in an intra-cultural dispute, and thus the

silencing of those on the other side.57

In cases where courts rely on assessors, then, it is

certainly possible that an assessor has “twisted and

manipulated” the law “for personal (and political) gain.”58

The modes of legal culture allow for this sort of shaping,

due to the emphasis on precedent, greatly empowering those

who are asked to expound on what is customary law to

unilaterally change it. In the event of “a decision of the

court, that a particular custom is valid,” the common-law

legal culture’s application of precedent leads to a

57 See, e.g. Bhe v. Magistrate, [2004] ZACC 17, at ¶ 4 (discussing the Chief Justice of the Court asking for a submission from the House of Traditional Leaders due to the centrality of customary law in the case).58 Himonga & Bosch, supra note 10, at 325.

situation where “it will not be necessary to prove the

custom by means of witnesses; it will be sufficient to quote

the decision in question.”59 Assessors, then, can change or

ossify custom through judicious use of the norms of legal

culture.

The legal culture, even when attempting to actually

understand national culture and creates norms from it, takes

the rule of decision formed through those efforts and enacts

it in its own way. Should the cultural practice itself

change in the future, the law will again be out of step –

the same problem discussed above in terms of the example of

the substantive rule in the Recognition Act. The requirement

of legal culture of substantive rules of decision is in

constant tension with customary law rooted in cultural

practice, as it cannot but ossify and create prescriptive

rules.

There are other examples of the tension between

national culture and legal culture, e.g. the continued

urging of legal voices towards “an authoritative restatement

59 Bekker & van der Merwe, supra note 51, at 118.

of customary law,”60 asking customary law to be stored in a

mechanism familiar to legal culture, a “written memory,”

rather than in memory itself as used by the national

cultures living by custom.61 However, the examples above

suffice to highlight the high level of tension between

customary law, when seen as an attempt to protect culture

and allow social relations to govern the mechanics of life,

and the legal system and culture that is used to actually

police these lives.

Part III Multidirectional Interactions and the Affect State

Culture has on National Culture

While part II served to point out the inherent tension

between protecting national culture through customary rules

of decision, but mediated through the legal culture of the

courts, this part should briefly complicate the picture of

national culture itself. In discussing Shilubana, I noted

that outside influences do effect social systems and thus

culture as I have defined it. The point I seek to make here

60 Ndulo, supra note 9, at 126.61 See Carlson Anyangwe, The Whittling Away of African Indigenous Legal and Judicial System, at 62 (“Indigenous law is an ‘oral law’”).

is a reiteration of that – that national and legal cultures

are interacting with other bodies of practice and norms, and

thus should be viewed in constant flux. I will discuss, in

particular, some brief examples of the effect that state

culture has on national and legal culture, respectively, to

illustrate the multidirectional interactions at work here

and contextualize the interactions of national and legal

culture in a wider system.

The first example has been discussed above, the

Shilubana case. Here, I simply wish to note what the judges

found as the reason for the “organic” cultural change at

issue in that case: the Valoyi leadership determined that

“the matter of chieftanship and regency would be conducted

in accordance with the Constitution.”62 Whether true in the

particular case or not, a Constitution with a rights

framework cannot but mediate and influence traditional

culture. While traditional culture certainly forms part of

an individual’s identity, so does state culture, which

includes an understanding that there is a Constitutional

62 Shilubana at ¶ 58.

framework that represents “the emerging consensus of

values . . . which Namibians share.”63

Given that, then, a person’s understanding of their own

rights and responsibilities is informed by state-level

discourse, that self-conception will shape their

interactions with others, and thus help define the social

relationships between members of the same ethnic group which

are defined as customary law. Note the prevalence of women

challenging customary practices in marriage, or

inheritance.64 These women must have conceived of themselves

as possessing more rights than they did in terms of the

social interactions of their national group, and this

understanding is because of the insertion of state cultural

conceptions of identity and rights mediating or challenging

national cultural conceptions. This insertion of state

cultural concepts may be one of the leading motivating

factors in challenges to cultural practices, but as they 63 Ex-Parte Attorney General: In re Corporal Punishment by Organs of State, 1991 NR 189. The same holds true for citizens of other states, e.g. in Botswana where the Constitution is “the mirror reflecting the national soul.” Mmusi and others, ¶ 83.64 See, e.g. Bhe v. Magistrate [2004] ZACC 17; Dow v. Attorney General 1994(6) BCLR 1.

provide the impetus for individual challenges and lead to

persons challenging social relations from within a social

structure, they lead to cultural change which is then

recognized by law, rather than the problematic paradigm of

law pressuring for cultural change discussed above.

It is not just national culture that mediates with

state culture; legal culture does so as well. Courts have

regularly talked about their role of “develop[ing]

indigenous law,” as given to them by state constitutions.65

Included in that development is “promot[ing] the spirit,

purpose, and objects of the Bill of Rights.”66 While, as

discussed above, this development is problematic in direct

terms of interaction with culture, this promotion can also

have indirect effects. As discussed immediately above, the

promotion of rights documents leads to their assertion by

individuals as elements of their identity as citizens and

thus mechanisms to challenge and evolve their national

cultures. Legal culture may be indirectly helping national

culture evolve through this continued promotion and 65 See, e.g., Bhe, at ¶ 211.66 Id. at ¶ 212.

publicization, whatever the direct changes on customary law

itself sans this cross-cultural mediation.

Furthermore, to speculate briefly, commentators have

raised the scope that state cultural modes can directly

affect the relationship between legal and traditional

cultures, in terms of proscribing matters of interaction and

priority. Anyangwe has noted a distinction between Anglo-

colonised and Franco- or Luso-colonised African states:

“Some states, especially Anglophone ones, have taken a

pragmatic approach by maintaining the legal dualism of

Western law and indigenous law, the latter being, however,

subject to a gradual process of reform and adaptation. Some

other states, principally French and Portuguese speaking,

have taken an integrationist approach.”67

What explains this distinction, especially if it is so

sharply delineated between states emerging from different

colonial traditions? It is possible that conceptions of the

state, particularly the legislature, as a lawmaking body,

differ sufficiently between Anglo and other cultures to so

67 Anyangwe, supra note 61, at 47.

differentiate the two groups of states. In, for example,

French legal culture, the courts are distrusted as

developers of law and so unification and reform by statute

would be seen as the only appropriate way to ensure

development of the law.68 While a full answer is beyond the

scope of this paper, it is important for our purposes to

note that an understanding of state culture including

history and colonial background necessarily informs such

processes and decisions.

Conclusion

This paper set out to discuss two concepts through

illustrative examples. The first was the tension between

customary law as it is conceived as a function of and tool

for the preservation of living culture and the common-law

orientated court systems of African states as the method of

applying that customary law. The modes of practice of

common-law courts, as was discussed, are problematic in many

ways when those courts are used to mediate customary 68 See generally JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION, 29 (“Experience with the prerevolutionary courts had made the French wary of judicial lawmaking disguised as interpretation of laws.”).

disputes and shape customary law. Treating customary law in

a manner analogous to common law, albeit with a different

originating source, serves to separate customary law from

the cultural life that it is intended to be a protecting and

enabling force for.

The second concept was a brief discussion of the

context in which this tension is operating, namely under a

lens of state culture in polyethnic and polynational

postcolonialist states. While a full survey is beyond our

scope, evidence of the multidirectional influences and

processes leading to the complimentary and contemporary

development of both national culture and legal culture

provides a clearer picture of the complex systems these

various cultures are operating in.

Both of these concepts should inform an understanding

of customary law that is more complicated, and possibly more

apt, than the traditional statements that recognition of

customary law is rooted in the protection of culture. The

requirement that customary law be mediated through a wholly

separate culture, and the context in which both customary

law and that legal culture are constantly in flux, prevent

that simple understanding from actually gaining purchase as

a useful rubric for understanding the source of customary

law.

What, then, would be a better locus for that source?

This paper can only provide a few speculative suggestions.

One way of understanding customary law would be not to see

it as a protection of a single national culture that

produces it, but a recognition of the fact that national

cultural traditions and social structures still are valuable

to and inform person’s conceptions of their own identity and

their place in relationships with others. This rubric would

also allow for the other influences discussed in part III to

play their role in that same informing of identity, and

allow for development of culture and law in a way that

recognizes the true complexity and interplay of cultures plural

rather than assigns one body of national culture as the

rules governing the life of one individual – a model that

simply no longer has purchase in a pluralistic, mobile, and

individual rights-focused society.