Law in Africa
Encyclopedia
The law in Africa is a diverse mix of common law
, customary law, civil law
and religious law
systems.
legislation were Roman-Dutch and English Common law, imports of Dutch settlements and British colonialism. Thus it is sometimes termed Anglo-Dutch law. Various lawmaking bodies have existed within South Africa over time. Yet in fact, some of the oldest legal systems began first in Africa. For instance, Ancient Egyptian law used a civil code, based on the concept of Ma'at. Tradition, rhetorical speech, social equality and impartiality were key principles.http://www.cap-press.com/authors/217 Judges kept records, which was used as precedent, although the systems developed slowly.
A polycentric
legal system, called Xeer
developed exclusively in the Horn of Africa
more than a millennium ago and is still widely used by the Somali people
. Under this system, elders
serve as judges and help mediate cases using precedents. Xeer is a good example of how customary law can work in lieu of civil law
, and is a good approximation of what is thought of as natural law
. Several scholars have noted that even though Xeer may be centuries old, it has the potential to serve as the legal system of a modern, well functioning economy.
The Xeer also shows how influential a system of laws can be with regard to the development of a culture. According to one report, the Somali nation did not begin with the common use of the Somali language
by the Somali clans, but rather with the collective observance of Xeer. An analogous phenomenon is also said to have occurred among the neighbouring Oromo
nation, the latter of which is now under Ethiopia
n rule.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, customary law, civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and religious law
Religious law
In some religions, law can be thought of as the ordering principle of reality; knowledge as revealed by a God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by the God...
systems.
History
Law in Africa has been shaped primarily through different countries inheritance of laws which existed in Europe through the nineteenth century. For instance, the primary sources of South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
legislation were Roman-Dutch and English Common law, imports of Dutch settlements and British colonialism. Thus it is sometimes termed Anglo-Dutch law. Various lawmaking bodies have existed within South Africa over time. Yet in fact, some of the oldest legal systems began first in Africa. For instance, Ancient Egyptian law used a civil code, based on the concept of Ma'at. Tradition, rhetorical speech, social equality and impartiality were key principles.http://www.cap-press.com/authors/217 Judges kept records, which was used as precedent, although the systems developed slowly.
A polycentric
Polycentric law
Polycentric law is a legal structure in which providers of legal systems compete or overlap in a given jurisdiction, as opposed to monopolistic statutory law according to which there is a sole provider of law for each jurisdiction. Devolution of this monopoly occurs by the principle of...
legal system, called Xeer
Xeer
Xeer, pronounced , is the polycentric legal system of Somalia. Under this system, elders serve as judges and help mediate cases using precedents. It is a good example of how customary law works within a stateless society and is a fair approximation of what is thought of as natural law...
developed exclusively in the Horn of Africa
Horn of Africa
The Horn of Africa is a peninsula in East Africa that juts hundreds of kilometers into the Arabian Sea and lies along the southern side of the Gulf of Aden. It is the easternmost projection of the African continent...
more than a millennium ago and is still widely used by the Somali people
Somali people
Somalis are an ethnic group located in the Horn of Africa, also known as the Somali Peninsula. The overwhelming majority of Somalis speak the Somali language, which is part of the Cushitic branch of the Afro-Asiatic language family...
. Under this system, elders
Elder (administrative title)
The term Elder is used in several different countries and organizations to indicate a position of authority...
serve as judges and help mediate cases using precedents. Xeer is a good example of how customary law can work in lieu of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, and is a good approximation of what is thought of as natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
. Several scholars have noted that even though Xeer may be centuries old, it has the potential to serve as the legal system of a modern, well functioning economy.
The Xeer also shows how influential a system of laws can be with regard to the development of a culture. According to one report, the Somali nation did not begin with the common use of the Somali language
Somali language
The Somali language is a member of the East Cushitic branch of the Afro-Asiatic language family. Its nearest relatives are Afar and Oromo. Somali is the best documented of the Cushitic languages, with academic studies beginning before 1900....
by the Somali clans, but rather with the collective observance of Xeer. An analogous phenomenon is also said to have occurred among the neighbouring Oromo
Oromo people
The Oromo are an ethnic group found in Ethiopia, northern Kenya, .and parts of Somalia. With 30 million members, they constitute the single largest ethnic group in Ethiopia and approximately 34.49% of the population according to the 2007 census...
nation, the latter of which is now under Ethiopia
Ethiopia
Ethiopia , officially known as the Federal Democratic Republic of Ethiopia, is a country located in the Horn of Africa. It is the second-most populous nation in Africa, with over 82 million inhabitants, and the tenth-largest by area, occupying 1,100,000 km2...
n rule.