Customary law Teaching Material Prepared by: Muradu Abdo , Addis Ababa University, Faculty of Law & Gebreyesus Abegaz , Mekelle University, Faculty of Law Prepared under the Sponsorship of the Justice and Legal System Research Institute 2009 Table of Contents Page Introduction………………………………………………………………………….. Unit one:1 Basic Concepts ………………………………………………………………1 1.1 Defining Customary Law And Legal System ………….....................................4 1.2 Law And Custom ……………………………………………………………..14 1.2.1 Law And Custom Compared ……………………………………………..16 1.2.2 Custom , Habit And Convention……………………………………………16 1.2.3 Custom I Primitive Society………………………………………………...19 1.2.4 Sanctions And Primitive Customs………………………………………...20 1.3 Theories Of Customary Law ………………………………………………….28 1.4 History Of Customary Law……………………………………………………34 1.5 Legal Transplantation …………………………………………………………41 Unit Two: Customary Laws In Africa…………………………………………….61 2.1 Introductions ………………………………………………………………….61 2.2 Common Features Of African Customary Laws……………………………..62 2.3 The Status of African Customary Laws And Legal Institutions In Colonial And Post Colonial Africa …………………………………………………70 2.3.1 Introduction………………………………………………………………..70 2.3.2 The Debate after Independence …………………………………………..84 2.3.3.3traditional Institutions Of Africa………………………………………...86 2.4 African Customary Laws And Human Rights Principles……………………....89 2.4.1 The Place Given To Customary Laws In International Instruments ….......89 2.4.2 The Effect Of Customary Laws In Internalizing Human Rights Principles…………………………………………………91 2.4.3 Cultural Transformation And Human Human Rights In Post And – Colonial Africa ……………………………………………………95 Unite Three: An Overview Of Traditional Legal Institutions In Ethiopia…………….109 3.1 Customary Laws And Codes In Ethiopia……………………………………….110 3.2 Some Selected Customary Laws Versus Human Rights In Ethiopia ………….132 3.3 More on The Customary Resolutions Mechanism In Ethiopia…………………163 3.3.1 Oromia…………………………………………………………………..163 3.3.2 Southern Nations And Nationalities And People’s Region ………………….173 A / Gurage ……………………………………………………………….174 B/ Kambata ………………………………………………………………176 C/ Sidama………………………………………………………………….177 D/Gedeo ………………………………………………………………….178 E/ Walayta ………………………………………………………………...178 F/ Gamo ………………………………………………………………….178 G/ South West……………………………………………………………179 Unite Four : Legal Pluralism………………………………………………………..201 4.1 Attributions Of Legal Pluralism ………………………………………….202 4.2 Approaches To Legal Pluralism …………………………………………218 References ……………………………………………………………………233 Introduction The course raises two principal issues. The first issue in the course is outlining the essential features of customary law. Simply stated, this is the issue of definition. The next key point of the course is whether customary law can and should co-exist with other sources of law such as mainly state originated law. This latter issue can be put as an issue of co-existence. The co-existence issue can be broken down into three sub- issues. The first sub-issue is the degree of co-existence between the customary laws and state laws. The second one is the tests of the co-existence of the two system of law. The third sub-issue outlines the justifications for worrying about the co- existence of customary law and state laws in the context of developing nations such as Ethiopia. Besides, students are to analyze provisions in the various federal and state legal instruments in Ethiopia providing a room for the operation of indigenous legal institutions. Further, you will trace the development of customary laws in other legal traditions such as western legal traditions. Thus, the scope of coverage of the course is not limited to the examination of customary laws in the Ethiopia context. Yet, the course will not discuss customary international law (which is one of the sources of international law). Hopefully, you would cover customary international law in the course on international law. It is hoped that the course would help you appreciate that the laws made by states in developing countries such as Ethiopia are not fully applicable; a large percentage of rural population in such countries regulates itself by customary laws. So the course hopefully disillusions students from the idea that state laws in developing countries have taken roots in the fabric of societies. In addition, the course would send the message that laws come from sources other than state institutions; state institutions are just one of the valid sources of laws, not the only source of laws. Hence, the course directs the attention of students to multiple sources of laws. I also think that the course urges them to be sensitive to diverse legal traditions. 1 Customary laws in Ethiopia affect the lives of millions. In some respects, customary laws are much more practical and more powerful than the state made laws. As you well know, Ethiopia has many ethnic groups. Each of these ethnic groups has its own traditional dispute settlement methods and institutions including customary laws. These groups to a large degree make use of their respective systems. For the reasons to be outlined in this course, the multiple groups in Ethiopia less frequently use the modern state generated laws. Thus, the study of traditional legal institutions in general and customary law systems in particular is very much important in the Ethiopian context. The material is organized into four units. Unit 1 outlines foundational concepts such as the definition of customary law, legal system and legal transplantation. The next unit is concerned with customary laws in Africa emphasizing on the common features of customary laws in Africa as well the interplay between customary laws and state laws in this part of the world. Unit 3 is devoted to examining the development of the interaction between customary laws and state laws in the Ethiopian legal system. Unit 4 relates to legal pluralism, the situation where several legal systems such as customary laws, state laws and religious laws are deliberately allowed to cooperate and function together. Each unit is planned to have at least two sections. Each section includes review questions. Each unit also contains a summary of the essential issues. In this course, you should be able to: Know concepts such as custom and source. Understand the nature of customary law. Appreciate the importance of customary law. Recognize the interplay between customary law and state made law. Understand the relationship between customary laws and human rights. 2 UNIT ONE: Basic Concepts Introduction This unit is planned to define concepts, such as custom and customary law. It will see that some customs also called customary practices are customary laws while some customs are not. On the other hand, all customary laws are customs. This unit explains the historical development of customary law in the western legal system; It will appreciate that the western legal systems historically gave a secondary place to customary laws, as these legal systems regarded customary laws as undermining the efforts at national unity and legal uniformity. The unit also deals with the various aspects of legal transplantation. At the end of this unit, you should be able to: define concepts such as custom and customary law. discuss the relevance of the course. explain the historical development of customary law. discuss the various aspects of legal transplantation. 3 1.1 Defining Customary Law and Legal System This section defines customary practice. It will also show the meaning of the term `source of law.` In addition, It will define some other key concepts such as the terms `legal system` and `customary law.` The section will help you to distinguish customary law from state law. In the section, you will also notice the development of customary law in the various legal systems in the world. In this section, you should be able to: Define customary practice. Analyze the theories on the definition of customary law. Define the term `source of law.` Define customary law. Define the term `legal system.` Distinguish customary law from state law. Discuss the development of customary law in the various legal systems in the world. Relevance: The reason for taking this course at this time in Ethiopia lies in the position adopted in the FDRE Constitution. There are three ways of understanding the historical process of bringing the various entities in the country together in the past two centuries, namely the re-union approach, the national question approach and the colonial thesis approach. You will consider the re-union approach and the national question approach. Emperor Hileselassie I and his supporters understood the process as a re-union or expansion. They argued that prior to 19th and 20th centuries Ethiopia lost territories as a result of wars and migrations. They argue that in 19th and 20th centuries, Ethiopia successfully regained her lost territories. These actors worked to bring about political centralization. They used western oriented codes. They used the methods of assimilation, integration, urbanization and industrialization to unify the country. The 1931 and 1955 constitutions were designed to implement the state policy of political centralization as well as legal unification. Their concern was to avert political disintegration in the country. Giving official and proper place to customary 4 laws in Ethiopia was regarded as undermining the nation-building efforts. So, customary laws were given little official recognition. If customary laws existed under that