n Acta Juridica - Legal pluralism in Africa : the implications of state recognition of customary laws illustrated from the field of land law
|Article Title||Legal pluralism in Africa : the implications of state recognition of customary laws illustrated from the field of land law|
|© Publisher:||Juta Law Publishing|
|Affiliations||1 University of Birmingham, UK|
|Publication Date||Jan 2011|
|Pages||35 - 58|
Living customary laws, generally observed by the populations of African states, are derived from customary laws observed before the colonial period, but developed and adapted to current circumstances. The laws observed in the institutions of the modern state are based on the legal institutions and norms of the colonial powers, but give some 'recognition' to the customary laws. This policy of recognition is often accepted today as jurisprudentially sound and socially realistic, but it poses the following challenges to the administrators of state law in the current circumstances of legal pluralism in Africa. The ascertainment of the content of the various customary laws entails difficulties which neither codification nor restatements of customary law remove. The forms of the customary laws are such that large parts cannot be applied in state institutions without radical revision. Recognition is required on policy grounds to be withheld from some portions of customary laws, and this distorts the remainder. Finally, choice of law rules need to be developed to determine when a customary law, or received law, is to be applied. These difficulties have implications for policies on the basic designs of legal pluralism in Africa.
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