Preserving African customary laws from the dangers of legal positivism

Abstract

From earliest times, various societies have been known to evolve patterns of social control. Approved behavioural patterns are encouraged while disapproved behavioural patterns are discouraged. Within this sphere, offenders are punished and disputes are resolved. Prior to the incursion of the colonial powers into Africa, the various chiefdoms and fiefdoms had their customary legal systems. The colonialists introduced the legal positivist traditions, which in most cases have almost completely obliterated the customary law system. There is no doubt that the wave of legal positivism and moralities of expedience have characterized the human society from the 20th century and beyond. As a result, reference to essential and universal value-judgments seems to have been relegated to the background in most spheres of life. Such ethical principles which possess universalistic character and are founded on the fundamental human nature are waning quickly. This study therefore calls for the preservation of wholesome customary law practices from going into extinction. The study employed the qualitative research design. Data were gathered from secondary sources and analysed with the expository and comparative tools. The findings of the study reveal that the positivistic spirit has affected the field of law in Africa and exposed customary jurisprudence to serious dangers and errors. In addition, it has caused a dislocation between what law actually is and what it ought to be, thereby placing the interest of African jurisprudential institutions in a dilemma of veering between the positivist stand and the maintenance of African customary laws. The study recommends that concise efforts should be made by all relevant agencies towards preserving African customary laws from the onslaught of legal positivism.