User:RichardAW ACL2011

It is generally accepted that there is a schism in African Customary Law (ACL) such that one may distinguish official customary law from living customary law. Living customary law is the norms which govern the society to which they are applicable that are embodied through an oral medium and subject to negotiation. Official customary law is the attempt to codify customary law in the written medium according to the mechanisms of state law. Hence, whilst the subject matter pertaining to each of these remains the same, it is primarily the manner and form of them that informs their differences. The tensions between these differing aspects of ACL, appears to derive from the positive nature of official customary law interacting with the negotiated nature of living customary law. This may be explained through the application of various theories. Legal pluralism offers the observation that systems may be viewed either from the perspective of one of those systems (weak pluralism) or alternatively attempting to be viewed from a position of neutrality withkut adopting the view point of a specific legal systems (strong pluralism). The force of law including such notions as the juridical field provides an explanation as to how the influence of positive law may extend beyond the bounds of what actually constitutes positive law. This would appear to provide an explanation as to how the criticisms against weak pluralism are affected. Turning then to the question of what are official and living customary law, the import of the above theories is that an attempt to define these concepts should not come from the same vantage toints. Official customary law as an extension of state law may be defined from the paradigm of positivist law and therefore it is little more that a system of defined rules to which members of that community is bound to follow. In short, the nature of the law is much like every other western law it simple has a different subject matter. Clearly then the sources of this law would be statute, case precedent, and academic writings. However, living customary law cannot be viewed in this manner. The warnings sounding in the theories of pluralism and the force of law theory indicate that an attempt to describe living customary law should not draw upon ideas inherent in positive law. In fact, it may not be accurate to describe living customary law as law to begin with, although it is appreciated that this is desirable for the positive connotations associated with this law. Living customary law is a collective reference to the manner in which communities govern themselves based in negotiation. It appears to be informed by considerations not only of largely established norms but also by extra considerations of the particular sensitivities of the community or disputes that have arisen. It may be helpful, if not entirely accurate to describe these as guidelines rather than rules. The oral basis of this practice allows the flexibility necessary for achieving this degree of contextual sensitivity. As one would expect the sources of living customary law are not precisely defined but tend to stem from traditions handed down by previous generations, pronouncements by present chiefs and otherwise the consensus achieved through negotiation between parties in dispute.