Ethics and Customary Law

It was Mamdani who observed that ‘The political project of the [colonial] regime of “customary” laws was to fracture a racialized native population into different ethnicized groups. The basis of group distinction under indirect rule was both race and ethinicity.’ This implies the necessity to put in context the historical perspective of customary law.

Empirical history tells us that it was colonial administration that transformed the basic informal general ethical code of conducts of the indigenous way of life and worldviews into a more formal institution of what is now referred to as ‘customary law.’ The conducts of life were basically founded on the ethical philosophies that served to guide an indigenous political community on a day to day basis. The concepts of egalitarian, restorative justice and collective interdependence and survival were the foundations of the ethical framework that provided the reference for our general conduct - in effect ‘customary law.’

With the strengthening of the state system, ‘customary law’ became more institutionalized and legalized under a legal system. As a result of which the tenet of ‘customary law’ has ceased to reflect the ethical philosophies and values of the indigenous community in its praxis. With institutionalization and legalization, ‘customary law’ was frozen in time and rather than promoting the values and principles of the society, it has come to effectively limit and fracture the ethical framework of the society.

The existing institutions of ‘customary law’ of indigenous communities have ceased to be dynamic in nature. Due to its now static character, its relevance is now in question as it fails to meet the needs and engage with the issues of the present day. Rather than being a facilitator of a dynamic ethical framework, the institution of today’s ‘customary law’ has come to represent a static parochial view of reality. It has allowed itself to be manipulated by people in power to pursue their own interests and needs and above all it has stopped facilitating restorative justice as it discriminates women, younger people and people of ‘lesser privilege.’ 

In effect ‘customary law’ has come to represent the power of a ‘selected few’ that seeks to impose their will on the community. As a result the ‘customary law’ of today contradicts the very values and democratic principles that nurtured its existence. In fact, it is also one of the institutions that have come to promote hierarchy and the disempowerment and compound oppression of women.  

So where do we go from here? For a moment I would like to echo the words of Luigi Guissani that traditions are not handed over to us so that we become fossilized with them. Like our ancestors, we should be able to develop tradition, ‘even to the point of profoundly changing it.’ 

However, in order to develop the capacity to transform traditions we must ‘act with’ what our ancestors gave us. This means using tradition critically, filtering it through our own praxis. However, using tradition critically does not mean doubting its value - even if this is what is suggested by the current mentality. Ironically, the more we run away from our traditions and seek to modernize with the precepts of other people’s cultures, the more we become fossilized. We must identity and reject the history that sought to portray us as non-humans. At the same time we must trust our true history, experience and capacity to transform.

‘Cultural dislocation has led to despair, but the real deprivation is the loss of the ethic of personal and communal responsibility, Taiaike states. Thus, it is imperative to rethink and transform the concept of ‘customary law’ within the ethical framework of democracy, restorative justice and equality. It implies that the old institutions of ‘customary law’ must be replaced with a new system that embodies the needs and aspirations of today’s indigenous community.

Indigenous peoples must engage in critical dialogue on how to transform social institutions into a more participatory process where men, women and the youth in mutual respect are equally engaged in consultation. They must also engage with the myth that indigenous peoples can find justice within a colonial legal system for it has been designed to encourage calmness even in the face of blatant injustice. In this process it must not bypass the imperative need to put in perspective our laws, conducts and institutions within an ethical framework of democracy, restorative justice, equality, respect and dignity. As Sankara reminds us that, ‘we must be able to take from our past from our traditions - all that is good, as well as all that is positive in foreign cultures, so as to give a new dimension to our culture.’