IND2601-Notes.
,IND2601
EXTENSIVE NOT
, IND2601 NOTES:
Indigenous law is divided into the Private law side and the Public law
side. The notes are structured according to the syllabus prescribed for
the module, and the exam usually follows this order. The first topic
discusses the nature of IL, in terms of the ways that it is and was
different to Western Law and the influence of the modern laws on its
development.
The Constitution had an impact on IL, and so please study the relevant
sections mentioned, well.
Each of the headings to follow may be a question in the exam.
Customary law as an expression of community values
Public participation in the process of adjudication resulted in the law also
giving expression to the prevalent values or the general moral behavioural
code of the community. As values changed in the course of time, so did
the law. Conflict between legal and moral values was therefore unknown.
The interests of the community were considered so important that, in the
eyes of the law, the individual had no special part to play.
The individual did, however, have a role to play within the group within
the family on the one hand and within the community on the other.
Should a dispute arise between parties, usually family groups, the
emphasis was not on which party was right and which party was wrong.
The dispute affected the wider community, which meant that any
decision had to take into account future relations between the parties
within the community.
These relations were extremely important if the wider community was to
enjoy harmony. The administration of justice did not concern legal justice
as such, but the reconciliation of people.
The role of magico-religious conceptions in African customary law
The belief in ancestral spirits, and the belief in sorcery are the main
supernatural beliefs in IL.
Each cultural group has its own conception of these but the belief in
ancestral spirits basically means that after death a person continues to
live in a spiritual world in basically the same way as he or she did on
earth. Relations that existed on earth are continued in the spiritual
world. The ancestral spirits maintain contact with their living relatives on
earth from the spiritual world.
Ancestral spirits have an interest in the community living on earth and
may make their wishes known to the living in various ways. It is believed
that the rules for living, and the law, are derived from the ancestors and
are protected by the ancestral spirits.
The ancestral spirits ensure that these rules are observed. Any disregard
of, or divergence from, these rules for living may lead to punishment by
the ancestral spirits.
, EXAMPLES: misfortunes such as illness, drought, hail, floods and heat
waves that are experienced are often interpreted as forms of supernatural
punishment, even today.
These beliefs explain the law, and therefore also form a basis for the law.
Thus the law has a supernatural origin and is therefore seldom
questioned. It also results in the law appearing static and unchangeable:
any change may be against the wishes of the ancestral spirits.
This all is also related to the belief that there are supernatural powers at
work in the universe that may be used by a person for his or her own
ends. People may use these supernatural powers to either work to the
advantage or to the disadvantage of other people or their interests. Cases
of sorcery always involve a person, that is, a “sorcerer”, who uses these
supernatural powers in order to harm others. It is in the interests of the
community that the sorcerer be identified and removed from the
community. Some form of supernatural process is often implemented to
identify the sorcerer. Use is often made of extraordinary evidence to point
out a sorcerer. Usually, the sorcerer is then killed or removed from the
community – and his family as “a mamba gives birth to a mamba.”
SOME FEATURES OF CUSTOMARY LAW IN COMPARISON TO THE
COMMON LAW
Specialised and non-specialised systems of law:
Common-law rules are relatively specific. The role of judges is to find the
relevant rule of law and apply it. Common-law rules are, for the most
part, readily ascertainable from legislation, judicial precedents and
textbooks. These legal systems may be called specialised legal systems.
Customary law is a non-specialised legal system. It is largely unwritten
and does not always have clear-cut, immutable rules. Customary law is
generally known to the members of a particular cultural group and is
enforceable between the members of this group. The rules of this system
are not always cast in stone.
Differences between specialised and unspecialised legal systems: NB!
o Time
o Categorisation
o Governmental functions
o Polygyny (Marriages)
o Concrete versus abstract approach
o Group versus individual orientation
o The religious element
o Kinship
,IND2601
EXTENSIVE NOT
, IND2601 NOTES:
Indigenous law is divided into the Private law side and the Public law
side. The notes are structured according to the syllabus prescribed for
the module, and the exam usually follows this order. The first topic
discusses the nature of IL, in terms of the ways that it is and was
different to Western Law and the influence of the modern laws on its
development.
The Constitution had an impact on IL, and so please study the relevant
sections mentioned, well.
Each of the headings to follow may be a question in the exam.
Customary law as an expression of community values
Public participation in the process of adjudication resulted in the law also
giving expression to the prevalent values or the general moral behavioural
code of the community. As values changed in the course of time, so did
the law. Conflict between legal and moral values was therefore unknown.
The interests of the community were considered so important that, in the
eyes of the law, the individual had no special part to play.
The individual did, however, have a role to play within the group within
the family on the one hand and within the community on the other.
Should a dispute arise between parties, usually family groups, the
emphasis was not on which party was right and which party was wrong.
The dispute affected the wider community, which meant that any
decision had to take into account future relations between the parties
within the community.
These relations were extremely important if the wider community was to
enjoy harmony. The administration of justice did not concern legal justice
as such, but the reconciliation of people.
The role of magico-religious conceptions in African customary law
The belief in ancestral spirits, and the belief in sorcery are the main
supernatural beliefs in IL.
Each cultural group has its own conception of these but the belief in
ancestral spirits basically means that after death a person continues to
live in a spiritual world in basically the same way as he or she did on
earth. Relations that existed on earth are continued in the spiritual
world. The ancestral spirits maintain contact with their living relatives on
earth from the spiritual world.
Ancestral spirits have an interest in the community living on earth and
may make their wishes known to the living in various ways. It is believed
that the rules for living, and the law, are derived from the ancestors and
are protected by the ancestral spirits.
The ancestral spirits ensure that these rules are observed. Any disregard
of, or divergence from, these rules for living may lead to punishment by
the ancestral spirits.
, EXAMPLES: misfortunes such as illness, drought, hail, floods and heat
waves that are experienced are often interpreted as forms of supernatural
punishment, even today.
These beliefs explain the law, and therefore also form a basis for the law.
Thus the law has a supernatural origin and is therefore seldom
questioned. It also results in the law appearing static and unchangeable:
any change may be against the wishes of the ancestral spirits.
This all is also related to the belief that there are supernatural powers at
work in the universe that may be used by a person for his or her own
ends. People may use these supernatural powers to either work to the
advantage or to the disadvantage of other people or their interests. Cases
of sorcery always involve a person, that is, a “sorcerer”, who uses these
supernatural powers in order to harm others. It is in the interests of the
community that the sorcerer be identified and removed from the
community. Some form of supernatural process is often implemented to
identify the sorcerer. Use is often made of extraordinary evidence to point
out a sorcerer. Usually, the sorcerer is then killed or removed from the
community – and his family as “a mamba gives birth to a mamba.”
SOME FEATURES OF CUSTOMARY LAW IN COMPARISON TO THE
COMMON LAW
Specialised and non-specialised systems of law:
Common-law rules are relatively specific. The role of judges is to find the
relevant rule of law and apply it. Common-law rules are, for the most
part, readily ascertainable from legislation, judicial precedents and
textbooks. These legal systems may be called specialised legal systems.
Customary law is a non-specialised legal system. It is largely unwritten
and does not always have clear-cut, immutable rules. Customary law is
generally known to the members of a particular cultural group and is
enforceable between the members of this group. The rules of this system
are not always cast in stone.
Differences between specialised and unspecialised legal systems: NB!
o Time
o Categorisation
o Governmental functions
o Polygyny (Marriages)
o Concrete versus abstract approach
o Group versus individual orientation
o The religious element
o Kinship
