Professor Salvatore Mancuso, University of Macau
Africa is the continent where a considerable part of the studies on legal pluralism take place.
This phenomenon emerged when colonizers settled down in the colonies bringing their laws and cultures together with them. They immediately realized that native people had their own behavioural rules and that the law they imported had to interact with those native rules.
After colonization the attempt to root transplanted European law in Africa failed, and African native law resisted to the general trend to leave it out of the life of the people thanks to its flexibility and capacity of adaptation. The cultural diversity between Africans and Europeans was so deep, the Western law so profoundly linked with the social and cultural development of the European countries (formerly colonizers) to expect that a law developed after centuries of local history could have worked in the same way in the African countries as it does in the European ones.
On the other hand, those characteristics of flexibility and adaptability proper of African native law gave it the possibility to evolve “underground”, in that peculiar way defined by Africanists as “legal mimesis”: phenomena like urbanization and the consequent changes in the relations of the people within their own groups as well as with people belonging to other traditions determined the creation of new rules or the reinterpretation of the old ones, always out of the official State legal framework.
Today African law is facing new challenges. From one side the more frequent recognitions of the value to be given to African legal traditions is emphasizing the role of legal pluralism, from the other side the move to new forms of legal development, especially those based on legal integration, seem to neglect – or at least leave out – the role of the tradition. The presence of these new phenomena in the legal scenario brings to a re-consideration of the concept of legal pluralism where cultural diversity – within the same African people – is playing a crucial role.
After a general overlook on the issue of the resistance of African native law towards the attempts of eliminating or reducing it to a marginal role in the period after the colonization, the paper will mainly examine the new developments of African law in terms of official State law and transnational legal integration, to move to main issue of the paper, concerning the reaction of African native law to this new developments of the official law while African native law itself is internally struggling between tradition and modernity, urban and non-urban, formal and informal.
Such analysis will also consider how legal pluralism is evolving in Africa, since these legal developments are enhancing cultural diversity both in terms of official and unofficial law, having therefore a deep impact in the development of the entire scenario of today’s African law.