scholarly journals Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Chuma Himonga ◽  
Fatimata Diallo
Keyword(s):  
Special Reference ◽  
South African ◽  
Legal System ◽  
Legal History ◽  
Legal Education ◽  
Customary Law ◽  
The Status ◽  
History Of ◽  
The Concept Of Law ◽  
Interdisciplinary Study

The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools.This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.

scholarly journals DECOLONISING LEGAL EDUCATION IN SOUTH AFRICA: A REVIEW OF AFRICAN INDIGENOUS LAW IN THE CURRICULUM

2020 ◽  
Author(s):  
Joshua Mawere
Keyword(s):  
South Africa ◽  
South African ◽  
Education System ◽  
Legal History ◽  
Legal Education ◽  
Post Colonial ◽  
Indigenous Law ◽  
African People ◽  
The Status

The student demonstrations in universities, which began in 2015, demanded the decolonisation of higher education. The demands included free education and a decolonised curriculum. In the field of law, the demand is anchored in changing the law curriculum. The central issues accompanying the demand are the status of indigenous law, legal history, concept of law, how law is taught and the role of law in African societies. The article examines the necessity of decolonising legal education in relation to the curriculum and the teaching of law in South African universities. The article adopts a doctrinal approach to assess the need to transform the curriculum. The article is grounded in the theory of Afrocentricity in a bid to revive the African paradigm and to examine legal epistemology in post-colonial South Africa. The argument developed in this article is that the legal education system has not significantly been decolonised since 1994. Arguably, the education system is founded on European theories and systems, hence difficult or impossible for the students in Africa to relate. This article recommends that a new curriculum that reflect laws, principles and customs of the African people must be introduced in the South African legal education. Institutions are also encouraged to take positive steps to decolonise legal education and end eurocentrism.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals A Legal History of the New Zealand Jury Service - Introduction, Evolution, and Equality?

1999 ◽  
Vol 29 (2) ◽  
pp. 283
Author(s):  
Michèle Powles
Keyword(s):  
Nineteenth Century ◽  
New Zealand ◽  
Legal System ◽  
Legal History ◽  
Race And Gender ◽  
Jury Service ◽  
History Of ◽  
Jury System ◽  
And Gender ◽  
Service Introduction

This article traces the development of the New Zealand jury system. Most noteworthy in thisdevelopment has been the lack of controversy the system has created. At the end of the nineteenth century, however, the pursuit of equality in the legal system generally led to debate and reform of juries in relation to representation, race and gender.

Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835–51

1999 ◽  
Vol 17 (2) ◽  
pp. 209-246 ◽  
Author(s):  
H. Robert Baker
Keyword(s):  
Legal System ◽  
Legal History ◽  
Legal Culture ◽  
The United States ◽  
Major Theme ◽  
Law And Order ◽  
Complex Picture ◽  
History Of ◽  
Cultural Component ◽  
Colonial Settlement

The legal history of the western Canadian frontier has received renewed attention in recent years. Much of the work readdresses the question of “law and order,” challenging older assumptions about Canada's orderly frontier culture—orderly particularly in contrast to the United States’ violent settlement of the west. At issue is not just a revision of whether violence occurred on the Canadian frontier but a fundamental reinterpretation of what the concepts of “law” and “order” had really meant. Indeed, conflict between legal cultures has become a major theme as historians attempt to rewrite the history of the Canadian west. They understand that this conflict—whether violent or not—shaped the formation of Canada's legal culture before 1870. Methodological prescriptions for writing this type of history have emphasized the need for historians to widen their base of sources, particularly to exploit “nonlegal” sources (such as diaries, journals, and letters), and to consider the workings of what Lawrence Friedman has called the “cultural” component of a legal system: what suits were brought to court, what notions came into play there, what expectations people brought with them. Important studies on the colonial settlement of British Columbia in the nineteenth century have focused on the relationships between the Hudson's Bay Company, colonists, and Natives to demonstrate that conflict over resources and competing definitions of liberalism and law often shaped legal discourse. These rich accounts have, among other things, called into question the idea of an orderly, peaceful Canadian frontier. They have also provided a much more complex picture of the interactions between Native and European, and the uses of law and the legal system by settlers, Company men, and Aboriginals.

Navigating Diffuse Jurisdictions

2019 ◽  
pp. 98-120
Author(s):  
Helen Quane
Keyword(s):  
Legal System ◽  
Legal Pluralism ◽  
Customary Law ◽  
Specific Reference ◽  
State Law ◽  
System P ◽  
The Status ◽  
Over Time

This chapter studies the jurisdictional boundaries between state and non-state law with specific reference to religious, or customary, law. The determination of these regulatory forms as state law depends on the extent to which they perform prescriptive, adjudicative, or enforcement functions. Indeed, the boundaries between state and non-state law are not as stable as they may appear, as they are liable to shift according to circumstances and over time. The chapter then argues that the issue of classification acquires resonance in cases where legal pluralism occurs as the character and scope of a state’s exercise of jurisdiction becomes far more ambiguous in such situations. This can create uncertainty about the jurisdiction of the respective systems, the status of norms from one system that are given effect in another, and how these norms should be interpreted and applied given their concurrent existence within more than one legal system.

Subordination, Authority, Law: Subjects in Labor History

1995 ◽  
Vol 47 ◽  
pp. 56-90 ◽  
Author(s):  
Christopher Tomlins
Keyword(s):  
Eighteenth Century ◽  
Special Reference ◽  
Social Relations ◽  
Legal History ◽  
Labor History ◽  
Primary Site ◽  
Employment Relations ◽  
Domestic Relations ◽  
History Of ◽  
American Labor

In the first section of this essay I discuss alternative ways of interpreting an eighteenth-century anecdote about employment relations. This serves to introduce a series of arguments that advocate altering our conception of labor history (with special reference to American labor history) in ways that center it on the study of household relations. Asserting that law is the primary site upon which authoritative social relations are constituted, I also argue that legal history—in this case the history of domestic relations law—is of fundamental importance to the labor history the essay recommends.

An African Doctrine of Equity in South African Public Law

2013 ◽  
pp. 1-15
Author(s):  
Thomas W. Bennett
Keyword(s):  
South African ◽  
Common Law ◽  
A Priori ◽  
Full Range ◽  
Public Law ◽  
Customary Law ◽  
Range Of Functions ◽  
History Of ◽  
The Common ◽  
African Form

For the first time in the history of South African law, a typically African concept – Ubuntu – has been adopted into the common law of the land (which is a mixture of English and Roman-Dutch law). Ever since colonial conquest, the indigenous normative orders of Africa have been treated as inferior. While South Africa’s new constitutional dispensation had the effect of elevating customary law to the same status as that of the common law, the traffic of ideas between the two systems continued to favour the latter as the superior system. The reception of ubuntu into the common law reversed this process. This paper examines the function of ubuntu in its new environment. Most of the discussion about the concept has concentrated on its meaning, a question that has been concentrated on finding a suitable English translation. The most obvious have been the calques, ‘humanity’, ‘personhood’ or ‘humaneness’, but none have been especially helpful, for they cannot hope to convey the full range of functions now performed by ubuntu. It is argued in this paper that searches for a priori meanings are unhelpful: words are continually being exploited by users to serve their own particular ends. In this regard, it must be appreciated that ubuntu is a loanword, and thus especially susceptible to manipulation. The paper shows that the courts have used ubuntu to supply a peculiarly African form of equity that has been used to solve hard cases and conflicts between rules, notably in the area of public law.

scholarly journals PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ

2017 ◽  
Vol 3 (1) ◽  
pp. 139
Author(s):  
Rafał Mańko
Keyword(s):  
South African ◽  
Legal System ◽  
Case Law ◽  
The Other ◽  
Customary Law ◽  
Roman Law ◽  
The South ◽  
Cape Of Good Hope ◽  
Ius Commune ◽  
The Republic

ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions. 

scholarly journals MARIKANA, A PAST NEVER TRULY ESCAPED: A CRITIQUE ON THE COMMODIFICATION OF THE LEGAL SYSTEM AND THE LAW AS AN INSTRUMENT OF JUSTICE IN POST-APARTHEID SOUTH AFRICA

2017 ◽  
Author(s):  
Vaughn Rajah
Keyword(s):  
South Africa ◽  
South African ◽  
Legal System ◽  
Historical Context ◽  
African Society ◽  
The Rule Of Law ◽  
South African Society ◽  
South Africans ◽  
Black South Africans ◽  
History Of

This article demonstrates that the Marikana tragedy was not a departure from the norm, but a continuation of state and corporate behaviour that has oppressed black South Africans for hundreds of years. This will be done through an analysis of the historically discriminatory socio-economic patterns of South African society, and how they subjugate the poor by limiting their access to legal and physical protection. These trends portray a history of commodification of the legal system. I discuss a notable documentary on the massacre, Miners Shot Down, and examine its depiction of the causes and effects of the events. The film provides no mention of the historical context of the killings, nor does it comment on many of the factors contributing to the massacre. Despite this, it succeeded in bringing the events to the attention of the broader public. I analyse the notions of justice, the rule of law and their application in South Africa as well as norms in the nation’s legal culture. Additionally, I examine the Farlam Commission, and how its procedures and conclusions hindered the course of justice in the context of our democracy. Ultimately, I demonstrate how the Marikana massacre was not a change in dynamic, but a reminder of a past we have never truly escaped.

scholarly journals The Legal History of the Twentieth Century

2003 ◽  
Vol 31 (2) ◽  
pp. 211-237
Author(s):  
Daniel R. Coquillette
Keyword(s):  
Twentieth Century ◽  
Legal History ◽  
Historical Perspective ◽  
Legal Education ◽  
Science Of History ◽  
History Of ◽  
And Training

All self-respecting legal history is supposed to end by the twentieth century. As we approach our own lives, experience and training — and those events that we have actually witnessed — we allegedly lose that “objectivity” which makes the “science” of history itself possible. Certainly, there is no point in burdening the reader with the “original” materials, including cases and statutes, that make up the bulk of any legal education. But there are good reasons to reflect on our own legal century from an “historical perspective.”

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