This book presents an important ethnographic and theoretical advance in legal anthropological scholarship by interrogating customary law, customary courts and legal pluralism in sub-Saharan Africa. It highlights the vitality and continued relevance of customary justice at a time when customary courts have waned or even disappeared in many postcolonial African nations.
Taking Botswana as a casestudy from in-depth fieldwork over a fifty-year period, the book shows, the ‘customary’ is robustly enduring, central to settling interpersonal disputes and constitutive of the local as well as the national public ethics. Customary law continues to be constitutionally protected, authorised by the country’s past as an authentic, viable legacy, from the British colonial period of indirect rule to the postcolonial state’s present development as a highly bureaucratised democracy. Along with a theoretical overview of the underlying issues for the anthropology and sociology of law, the book documents customary law as living law in the context of legal pluralism. It takes a legal realist approach and highlights the need to pay close attention to the lived experience of justice and its role in the production of legal subjectivities.
The book will be valuable to Africanists but also, more broadly, to social scientists, social historians and socio-legal scholars with interests in law and social change, public ethics and personal morality, and the intersection of politics and judicial decision making.
Table of Contents
- Introduction: Living Law, Public Ethics and Legal Pluralism
- Looking Back: Small Man Politics and the Rule of Law in a Tswapong Village
- Tlholego: Nature, Culture and Destiny
- The Oracular Court of Sedimo vs. the Customary Court
- An Unburied Past: Chiefly Succession and the Politics of Memory
- What’s in a Name? The Struggle for Identity in Statutory Courts
- Divorce as Process, Botswana Style: Customary Courts and Gender Activism
- Adultery as Process, Botswana Style: Gender and Changing Customary Law
PART ONE: PUBLIC ETHICS AND LEGAL PLURALISM
PART TWO: LEGAL SUBJECTIVITIES, ETHICS AND PLURALISM
9. Inheritance as Turmoil: From Citizens’ Forum to Magisterial Justice
10. A Case of Insult: Emotions, Law and Witchcraft Accusations
11. A Moral Economy of Crime and the Proportionality of Punishment
12. Conclusion: Customary Law as Living Law, Legal Pluralism and Public Ethics
Pnina Werbner is Professor Emerita of Social Anthropology, Keele University, UK. She has published extensively on Law and Anthropology.
Richard Werbner is Professor Emeritus in African Anthropology, Honorary Research Professor in Visual Anthropology, the University of Manchester, sometime Senior Post- Doctoral Fellow, Smithsonian Institution, Senior Fellow (National Humanities Center), Overseas Professor (National Museum of Ethnology, Osaka). He has recently given the Elliot P. Skinner Memorial Lecture for the Association for Africanist Anthropology, the Royal African Society Lecture, and the Jackman Lectures.
"This book makes an important and highly valuable contribution to a renewed interest and multifaceted debate on justice-seeking in the legally plural contexts of African postcolonies and beyond. It does so through a complex and very nuanced study of legal proceedings in Botswana that have played out in different customary and state courts as well as religious fora over the past 50 years. Written by renowned and long-established experts in the field with an exceptional depth of personal experience of the local dynamics and complexities, the book makes an important theoretical case for combining jurisprudential debates on public ethics with a study of living laws within the normative pluralities characterising not only the postcolony, but increasingly also the world at large."
Olaf Zenker, Chair of Social and Cultural Anthropology at the Martin Luther University Halle-Wittenberg, Germany