Chapter 3 - The nature of customary law Flashcards
After you have studied this lecture, you should be able to • differentiate between “specialised law” and “unspecialised law” • indicate the similarities between these types of legal systems • discuss the differences between these types of legal systems
What is meant by specialisation?
Specialisation refers to the distinction of certain functions or a definition of certain activities.
What are the similarities between specialised and unspecialised legal systems?
- The relations governed by law are, broadly speaking, the same for more or less all legal systems.
- The means by which that law is transferred from one generation to the the next is basically the same for all legal systems.
- In all legal systems, a transgression of the law and legal rules will have certain, specific consequences for the transgressors.
What are the differences between specialised and unspecialised legal systems?
- Group vs individual orientation
- Concrete vs abstract approach
- The religious element
- Categorisation
- Kinship
- Polygyny
- Lack of formalities
- Time
- Governmental functions
In customary law what is the stance on rights?
The strong individualisation of rights in modern societies, which implies, for example, that the individual and not the group is the owner or creditor, is almost absent in the original indigenous law.
in customary law what is the stance on marriage?
In customary law, marriage concerns family groups, both family groups participate not only in the matter of choice of marriage partners but also in the proceeding negotiations, the agreement, the transfer of marriage goods, and the ceremonies.
In customary law what is the stance on the law of contract?
In customary law, the parties are mostly agnatic groups, rather than individuals
In customary law what is the stance on criminal law?
As far as criminal law is concerned, a whole family could be punished for the crime of one of its members. In cases of sorcery, for instance, the whole family could be banished or even killed. Fines had to be paid by the group. In cases of corporal punishment, the transgressor was punished as an individual, although the entire group would also be prosecuted. Also, parents were responsible for the wrongs of their children.
In customary law what is the stance on administrative law?
Unspecialised legal systems also have officials specially charged with administering justice, but the public takes an active part in the proceedings, which always take place in the open.
Explain the concrete approach of the customary law vs the abstract approach of specialised law.
Unspecialised legal systems follow a more concrete and visible approach than that of specialised legal systems, which tend to be more abstract in nature. This applies, among other things, to the law of marriage, the law of obligations, and the structure and organisation of constitutional units.
Explain the religious element of customary law.
The strong religious element of customary law is based on the belief that the law originates from the ancestors. Disregard of the law is punished by ancestors, not so much because it is considered sinful but rather because it is regarded as disrespect, neglect, and contempt of the ancestors.
Explain categorisation in customary law.
A sharp distinction between categories, institutions and concepts is foreign to customary law. It is often difficult to determine whether authority in a family group with many members concerns only private law or whether it also concerns elements of public law.
Explain kinship in customary law
In many respects, kinship plays a dominant role in legal life. Apart from the position of the household as a legal unit, the wider family circle has extensive authority over its members.
Explain polygyny in customary law
In Unspecialised legal systems, one man can be involved in a marital union with more than one woman at a time.
Explain the lack of formalities in customary law
In unspecialised legal systems, the administration of justice is relatively informal. Legal rules are applied with great flexibility because it is the aim of the court to effect reconciliation rather than punishment, although the element of retribution is not totally absent. It is also said that the rules are there for the sake of people, not the people for the sake of rules.
Explain the time factor in customary law
In unspecialised legal systems, there is no strong emphasis on time. The precise moment at which any given marriage took place is not as important as the fact that the marriage did take place.
