Last month in Boston, I attended the African Legal History Symposium, a one-day event at the start of the American Society for Legal History‘s annual meeting. The symposium was organized by Erin Braatz (Suffolk University), Trina Leah Hogg (Oregon State University), Elizabeth Thornberry (Johns Hopkins University), and Charlotte Walker-Said (John Jay College of Criminal Justice). It was the first of its kind for the ASLH. Many of us non-Africanists came along, eager to learn more about Africa’s rich and diverse legal histories and to find connections with our own work. In my case, this got me thinking about shared themes in African and South Asian legal history.
There are many points of historical contact between these two parts of the world, of course. Fahad Bishara’s award-winning book on law and debt across the Indian Ocean (linking East Africa, the Arabian peninsula, and South Asia), and Charles DiSalvo’s study of Gandhi’s legal career in South Africa explore some of these connections. I found many links within the Parsi legal profession between Zanzibar, Aden (Yemen), and Bombay circa 1900. Rohit De rebellious lawyering project features many lawyers of South Asian descent in mid-20th century East Africa.
The topic I kept coming back to in Boston, though, was custom and informal legalities. There are many fruitful comparative conversations to be had here between Africanists and South Asianists. For a start, I can recommend Liz Thornberry’s work (including Colonizing Consent: Rape and Governance in South Africa’s Eastern Cape) for its treatment of custom. On the South Asia side, see entries with keyword “custom” on my bibliography here. The Library of Congress also has useful guides on customary law in Africa and India.
Two thoughts here:
(1) For the colonial history of (British) Africa and South Asia, it may be useful to think of the relationship between custom (norms, values, practices) and law (state law) on a spectrum. At one end was the formal recognition of particular customs by state law. To be upheld by state law in colonial India, a custom had to be ancient, invariable, and “not repugnant” to the general law. It was usually being asserted as an exception to the personal law (state-administered religious law) that would normally apply. In India, there are examples of inheritance-related and marital practices that were recognized as customs derogating from personal (religious) law. At the opposite end of the spectrum were customs that were criminalized by colonial legislation, like the 1829 statute that banned sati (ritual widow immolation) in India. In the middle were customs that were neither upheld by law nor criminalized–in an intermediate zone, between carrot and stick, to which colonial law was oblivious.
(2) And this leads me to the question: what kinds of status/practices had a dual existence–in the customary (or informal) and the state law realm–and what things didn’t? For instance, one could have a customary claim to land, but not own it under state law. There were two dimensions here, the customary and the legal. They could be in conflict with each other, or one could bend to the other (as we see through a doctrine like adverse possession). But in other areas–say naturalization–there was only one status or domain for practice, and it was that of state law. What difference did it make if you were operating in a dual or a single realm? Litigation patterns could make sense in light of this distinction. For instance, perhaps people had to go to court when the thing they wanted to get was only dispensed by the law of the state. They simply couldn’t get it anywhere else, or any other way. One paper at the African legal history symposium got me thinking about all of this. David Glovsky (Michigan State University) shared his work on “informal naturalization” processes in Senegambia. I came to his paper thinking that naturalization was an obviously “single realm” case where the status desired could be dispensed only by the state, and only in one way. But it turns out there are formal and informal ways of getting naturalized in Senegal. I’m not sure that Glovsky’s work on informal practices may be framed as customary, but his work certainly got me thinking about the relationship between state law and informal legalities.
Thanks to the organizers of the Boston event, and may there be many more comparative conversations to come!