I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the law, since it establishes an a priori notion of the desirable state of affairs.[5] As its second purpose, legal pluralism, by casting a shadow of skepticism on the deeply held centralist ideology, can then step in to offer an alternate paradigm that suggests the existence of several overlapping normative legal systems with exist in tandem with the state legal system. As Griffith famously wrote, “Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion”.[6]

Legal pluralism generally describes a situation where two or more legal systems or legal orders coexist in the same social setting.[7] Legal systems include those beyond the state system, such as religious or customary legal systems.[8] Legal pluralism also recognizes that legal mechanisms can also be found in other social settings, such as villages, families or churches, where rules and conventions exist, inducing compliance.[9] This leads to a definition of legal pluralism as “the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping ‘semi-autonomous social fields”.[10] This definition is not without its numerous criticisms and variations, as will be explored in more detail shortly. Nonetheless, by identifying the existence of ‘overlapping semi-autonomous social fields’, the definition breaks away from the legal centralism ideology, and opens up the possibility for other normative legal orders to stake a claim to authority.

II. Separating State Legal Pluralism and Deep Legal Pluralism

In attempting to more carefully craft out a meaningful definition of legal pluralism, some legal pluralism scholarship has found it useful to separate the notions of “state” legal pluralism and “deep” legal pluralism.[11] State legal pluralism is a direct product of colonialism, in which setting colonialist states attempted to accommodate customary law with the state system.[12] Under such a conception, the sovereign still commands authority through a unitary state legal system. Non-state laws exist insofar as they are ‘recognized’ by the state authority. Such a state system exhibits a level of internal plurality, as some of the laws contained within the overall system trace their origins to non-state legal normative orders, notwithstanding the fact that they are specifically state approved. State legal pluralism is not inconsistent with the notion of legal centralism. Rather, it represents “a particular arrangement in a system whose basic ideology is centralist”.[13] Such an arrangement is able to persist, due in part to the treatment of non-state law as imperfect, and thus in need of a centralizing authority’s supervision.[14]

The shortcomings of state legal pluralism are threefold. First, it is destructive to the aspirations of groups genuinely seeking to assert their own laws. Hinz frames this as the right to one’s own right – the right of individuals to be governed by that legal order they most closely associate with and thereby view as authoritative.[15] Second, and tied closely to the first point, is that state legal pluralism prejudices an individual’s standing before the law. An individual adhering to non-state laws will be perceived as adhering to imperfect, albeit acceptable, laws.[16] Third, as a pragmatic objection, state legal pluralism usually entails a high level of complexity.[17] While on one level, non-state laws are circumscribed to the extent that they will be recognized by the state, on another level, the very presence of multiple laws will necessitate that a choice of law rule be instituted. Such a rule may be necessary in instances where state and non-state laws apply to a given situation and the court must decide between the two.

Deep legal pluralism breaks free from the paradigm of state legal system, and posits that for any social group, two or more legal orders may coexist and not belong to a single unified system.[18] Deep legal pluralism is an attempt by legal scholars and anthropologists to chart the empirical reality of people’s state of affairs. It is sharply critical of the legal centralist dogma that social affairs, or even principles, are solely a function of state law. Rather, multiple and overlapping normative legal orders exert authority on social life. These multiple systems or orders are not unified under any single legal system. Rather multiple sets of laws may emanate from multiple sources.

Concluding Remarks

The present surge of interest in “legal pluralism” in the global legal domain calls for a deep exploration on what the term hope to bring into any particular discussion. Readers must be acutely aware that the term brings with it an eclectic of meanings and criticisms, and thus they would do themselves much justice by attempt to situation any particular discussion accordingly.

[2] John Griffiths, “What is Legal Pluralism?” (1986) 24 J. Legal Pluralism 1 at 3.

[3] T. W. Bennett, “Comparative Law and African Customary Law” in Mathias Reimann & Reinhard Zimmerman, eds., The Oxford Handbook of Comparative law (Oxford University Press: 2006) 641 at 666.

[4] Ibid.

[5] Griffiths, supra note 2 at 3.

[6] Ibid. at 4.

[7] S. E. Merry, “Legal Pluralism” (1988) L. & Society Rev. 869 at 870.

[8] Legal systems would also rise in such setting as to family, church, business, etc. See Griffiths, supra note 2.

[9] Bennett, supra note 3 at  667

[10] Griffiths, supra note 2.

[11] Merry, supra note 7. Also see Griffiths, supra note 1.

[12] Griffith refers to this as “weak” legal pluralism. It has since been referred to as “state” legal pluralism by Merry, Woodman and others. The term state legal pluralism seems more desirable given the potentially polemical connotations connected with “weak” legal pluralism.

[13] Griffiths, supra note 2 at 8.

[14] Ibid.

[15] Manfred O. Hinz, “Legal Pluralism in Jurisprudential Perspective” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 35.

[16] Woodman, however, he disagrees with the validity of this criticism. See Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[17] Ibid. at 161.

[18] Griffith, supra note 2 at 8. Griffiths refers to this as “strong” legal pluralism.

Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all normative controversies to bed or that we are borrowing from warring traditions.[1] [emphasis added]

Singer’s comments provide an enlightening (albeit contestable) suggestion that in the seeking of a solution to a legal dilemma, the use of “multiple normative strategies”, – strategies that may even create inconsistencies from problem to problem – can provide meaningful solutions.

A country’s constitution (whether written or unwritten) can open the door to a spectrum of normative interpretations. The role of any given constitution is to assert broadly defined values which extend over a diverse people within a region. These constitutional principles are normally consistent with a broad notion of human rights; thus, they encapsulate what can be viewed as the “fundamental rights” of the individuals which they extend over. However, contrary to conventional conceptions of constitutionality, a constitution does not necessarily entail that these principles are reached in one particular way.[2] For purpose of this discussion, it suffices to focus on chthonic law and state law, since elements of these two systems are often viewed as being at odds and since the Shari’a overlaps with both sets of laws.[3]

An examination of the 2004 Constitution of Afghanistan reveals how the country seeks to confer certain broadly defined fundamental rights on all its citizens.[4] The Constitution specifically includes the right to liberty, the presumption of innocence, the right to form social organization, the right to legal defense if accused of an offense under the law, and freedom of expression. The attainment of these fundamental rights can be consistent with a pluralistic conception of the law. Fundamental rights can be attained not only through state legal mechanisms but also through chthonic legal mechanisms. It is certainly arguable that the jirga/shura institution, which implements chthonic law, is just as able as state courts to implement justice in a manner that fulfills the ultimate attainment of justice to the individual. This approach to the fulfillment of constitutional principles through chthonic laws raises other questions. In the attainment of fundamental rights, how should a choice of law rule be implemented when substantive chthonic and state laws come into conflict? In what instances should courts be reviewing decisions of the jirga/shura institution, and what should be the standard of review? Finally, in what instances can one derogate from fundamental rights and to what extent?

Scenario – Murder case before a Jirga/Shura

Consider the scenario where a jirga/shura dealing with a murder case may lead to a decision to reconcile the parties through the practice of bad, which entails the swapping of brides. In such instances, though community justice may be fulfilled, the ruling may be abhorrent to fundamental justice as provided by the Constitution and understood under state law. The practice of bride swapping infringes on the well-being of some Afghan citizens, namely the females being implicated, and thus the state has an interest in protecting its citizens according to its notion of justice.[5] Legal pluralism will inevitably result in such legal quagmires where the rule of law based on one set of normative laws will directly be in conflict with the rule of law based on another set of normative laws.[6]

The approach of Singer may provide some instruction in dealing with such situations. A fixed set of a priori rules will not be able to deal with such a normative clash. Rather the judge or party weighing the interests of various normative laws must use “multiple normative strategies”. He must judge between apples and oranges  – he must analyze the extent to which a decision is consistent with one set of legal norms, as opposed to the extent to which the decision is abhorrent to an alternate set of legal norms. As well, he must take into consideration other factors, such as considering other legal norms that may claim authority – for example the Shari’a and international human rights norms – all of which he must factor into his final ruling. The judge must undertake his analysis on a case-by-case basis since much will revolve around the facts. In addition, the judge must be well versed in multiple sources of law, or minimally be ready to embark upon exploration of various normative legal norms, in trying to balance between the norms. Indeed, in case which involves two or more constitutional principles, a judge may be required to weigh fundamental rights against one another.

This scenario raises another important issue in the overall administration of justice: how should it be decided that a jirga/shura decision be reviewed by a state court? The jirga/shura institution and state courts already exhibit a level dynamic interplay between the two legal orders – a mixture of cooperation and tension. On the one hand, state courts already refer cases (including criminal murder cases)[7] back to the community level, limiting its own authority in favour of that of chthonic system. In this manner, the state system indirectly gains esteem in the eyes of rural Afghans through its cooperation with the chthonic system. On the other hand, in certain cases, the state system may seek to assert this strengthened authority by bringing in select cases of jirga/shura decisions before the court.

There need not exist a blanket policy concerning specific categories of cases that should always come before the state courts.[8] Rather, the state can proceed by identifying certain broad categories of cases that it feels “may” lead to a potential clash of normative legal orders – areas such as women’s rights cases and criminal cases – and monitor the activities of jirga/shura decisions in these areas.[9] A state actor would only raise a concern if it felt that a fundamental right (according to the state’s conception of justice) embodied by the Constitution was not being adhered to, causing a clash of normative values (in the manner analogous to scenario two, mentioned above).

Establishing a functional/functioning legal system in Afghanistan will take many years. Doing justice to this slow process requires that all conceptual postulates be brought to the table – with full knowledge that many will only be considered, studied, and retired.

[The entry draws extensively from a research paper entitled Re-conceptualizing Legal Pluralism in Afghanistan, written under the guidance of Professor Megret]

[2] C Himonga and R Manjoo” What’s in a Name?” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 329.

[3] Looking at these legal systems without focusing on the Shari’a facilitates a simplified discussion at this juncture. However, it certainly may be desirable to keep all three legal systems separate if one were to undertake a fully exhaustive exploration of the various interactions between the three systems.

[4] Constitution of Afghanistan 2004, trans. by Yahya Wardak (Kabul, Afghanistan: Shah M Book Co, 2004). Chapter 2 of the Constitution deals with fundamental rights.

[5] An even more complicated example would arise the female did not contest (or even tacitly approved) begin “bride swapped”.

[6] Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[7] USAID, “Afghanistan Rule of Law Project” A publication for the United States Agency for International Development (2005) at 11.

[8] This suggest is contrary to the opinion of various organizations that work in Afghanistan, such as the USIP and the Norwegian Refugee Council, who both assert that all serious criminal cases, such as murder, must be dealt with at the state level, without exception.

[9] Wardak provides more some pragmatic suggestions on how such monitoring could be set up. See Ali Wardak, “Building a Post-War Justice System in Afghanistan” (2004) 41 Crime, L. & Social Change 319.

The panels revolved around three central themes: the securitization of immigration policy, the role of civilian oversight of intelligence and security agencies, and Canadian intelligence cooperation with the United States in the war on terror. The challenge from the point of view of the organizers was to avoid creating a “false dichotomy” between security and civil liberties. While panelists approached the issues from a wide range of perspectives, all acknowledged the seriousness of both the threat of terrorism and the erosion of constitutionally-protected freedoms, and proposed various mechanisms for bridging the two. “We have to recognize that it is the responsibility of states to ensure that citizens are able to exercise their rights,” said Paul Kennedy, former chair of the Commission of Public Complaints against the RCMP, “terrorism is a direct attack, a direct threat, on those very rights and freedoms. The challenge for the state is to craft a response that is proportionate to the threat.”

Montreal-based human rights lawyer Pearl Eliadis talked about the need to view security considerations through the lens of domestic and international human rights instruments; this was echoed by Simon Potter, former president of the Canadian Bar Association, who spoke of the need to avoid a knee-jerk reaction to evolving security circumstances that would risk undermining the foundations of individual rights and liberties that have been built over centuries. Craig Forcese, a law professor at the University of Ottawa, addressed the practical and legal constraints under which security agencies operate and discussed detainees’ rights in the context of recent events and jurisprudence. Among other things, he talked about the government’s considerations in crafting legislation and the effectiveness of the often ad-hoc or judicial measures used to ensure Charter compliance, pointing to the controversial use of special advocates since Charkaoui I[1] as a measure that has proven at least somewhat effective. Participants also heard the narratives of individuals and communities on the front line of challenges to Canada’s anti-terrorism legislation from documentary film-maker Alexandre Trudeau and torture victim Maher Arar.

According to event organizers, the Symposium emerged in response to the recent series of high-profile cases dealing with security certificates and the securitization of immigration. The student planners wanted to see these matters discussed publicly, in a forward-looking manner that could openly address concerns and shortcomings with the current framework and generate policy recommendations. To that end, they will shortly be publishing a policy memo based on the analyses presented during the conference. Though some organizers expressed disappointment that circumstances prevented the attendance of many members of parliament, the RCMP, and CSIS, overall they were pleased with the attendance and level of participant engagement and they hope to use the momentum generated by the conference’s success to organize further related events in the near future.

For more information, or to receive updates about future events, email ctcl.mcgill@gmail.com. Video recordings of the three major panel discussions from the Symposium can be viewed here: http://prism-magazine.com/prism-tv/.

Indonesia is a country of over 230 million people, spread out amongst 17,000 islands and islets along an archipelago that stretches for more than 5,000 kilometres. The province of Aceh, lying at the archipelago’s most westward tip, is itself a diverse region, where some fifteen languages are spoken, and where, for the better part of 150 years, conflict and outright war have been the norm.

Islam came to Aceh in the 9th century. It has long been a unifying force throughout the country, but the Acehnese people in particular focus on Islam as a defining characteristic of their identity. As such, the creation of a system of Islamic law (Syariah in Bahasa-Indonesia) was a central factor of the peace plan agreed to by the Acehnese liberation group Gerakan Aceh Merdeka (GAM). However, it must be noted here that GAM was a purely secular movement, and that the achievement of Syariah was just one of many negotiation goals – and one that was proposed by the Indonesian federal government, not by GAM.

Following the signing of the peace agreement, the Acehnese government highlighted the need to draft a series of fifty-nine qanun (pieces of legislation influenced by Islamic principles and vetted by the religious leadership of the province) to begin the process of re-organizing the Acehnese legal system into a system of Syariah law. Two of the qanun called for were a consolidated criminal code and a women’s empowerment law. Both of these pieces of legislation were originally slated to be tabled before the Dewan Perwakilan Rakyat (DPR, translated as the “National House of Representatives) during the 2007 calendar year, but they did not appear until 2008. As predicted by many, they were not voted upon until this year.

In brief, the women’s empowerment law was a breakthrough document for this part of the world. It was written after widespread consultation amongst political leaders, women’s activists, international government organizations, and religious leaders. It was meant to dispel the myth that Islamic principles cannot help to foster basic human rights. From the very beginning, the drafting of this qanun had a great effect upon other pieces of legislation being drafted, including the now infamous criminal code. The women’s empowerment qanun specifically promotes education, health, and economic and political integration rights, among other things. At several times during the drafting of the criminal code qanun, legislators were forced to re-draft sections to bring them into compliance with the women’s protection qanun, thus demonstrating that the women’s rights lobby was far from weak.

So how did the offending provisions of the criminal code come to pass through the DPR? It is very likely that the law passed because of a mixture of reasons. Firstly, there is no doubt that many Acehnese are strict adherents to Islam, and that at least in part, the proposed bill was popular amongst some of the electorate. Secondly, harsh physical penalties for crimes are common in some regions of Southeast Asia, particularly in Singapore and Malaysia. Third, adultery is indeed viewed in the Acehnese culture as a crime, akin to rape in terms of seriousness. Fourth, and this phenomenon probably merits much more serious study – Aceh has been inundated with aid workers, foreign diplomats, and Indonesian federal officials since the tsunami disaster of 2004 and the 2006 peace deal. The lame-duck legislators, recently voted out of office in provincial elections, probably took this an as opportunity to take a (cheap) parting shot at the outsiders present in Aceh, the ever popular Acehnese Governor, Irwandi Yusuf, and the incoming and more moderate government. Despite federal laws promoting women’s rights, and Indonesia’s obligations under several international treaties and conventions, local legislators may have passed this law in order to take a ‘nationalist’ stand.

A fifth reason that this law may have passed also deserves a more nuanced analysis. There is serious speculation amongst scholars of the Acehnese legal system that should a constitutional challenge to the system of Syariah be mounted, the entire legal system of Aceh could be wiped away by the federal courts. This is particularly true of the laws covering criminal law (jinayat in Bahasa-Indonesia), which Aceh scholar Hasnil Siregar believes is very limited by a presidential decree from 2001. It is at least possible in theory that some lawmakers supported this law because they knew it would be struck down, along with the system of Syariah.

It is very important to note that some of the ruling elite of Aceh were not happy with the way the federal government implemented Syariah. Some would have preferred an open referendum process. The passing of such a tough law, one that would violate Articles 18 and 28(d) of the Indonesian Constitution, could provide activist Acehnese lawyers with all of the ammunition they need to poke holes in whole swaths of Acehnese legislation. Article 18 does not allow Aceh the flexibility it would need to pass such laws, as it limits such legal autonomy. Article 28(d) provides Indonesians the right to “legal certainty”, and the proposed law would have contravened this article. Sulistiowati Irianto, Director of the Centre for Women and Gender Studies at the University of Indonesia, also claims that the invoking of Syariah as it stands now violates Article 27 of the Indonesian Constitution, which calls for “equality before the law.” Reconciliation between Acehnese qanun and the Indonesian Constitution has not yet occurred.

Lastly, it is very important to point out that an alarmist Western press may have once again missed the mark in assessing the characteristics of Syariah. Professor Arfian Shah of Institut Agama Islam Negeri Ar-Raniry (The State Institute of Islamic Studies) in Banda Aceh has stated that there seems to be a misinterpretation of the word rajam as it is used to describe punishments for adultery. Stoning is theoretically a possible interpretation, but by merely honing in on and defining a meaning for the word in the law itself, lawmakers could have avoided this uproar. One need only look to other established qanun in Aceh to see that caning is the most severe form of punishment currently permitted. Even then, caning is usually offered up for convicted offenders in lieu of paying heavy fines or serving jail time.

Of course, this entire discussion is now moot. Governor Irwandi Yusuf exercised his executive prerogative and has refused to sign this bill. The coming of a new DPR session, with a newly elected body, hopefully means that all of this can be rectified. Aceh made some very progressive leaps towards offering equal rights to all of its citizens. In practice, women are highly respected in Acehnese culture and history. Solidifying this in the new legal system, after a tumultuous era of conflict, is very important to peace building in Aceh. However, Western observers should take heed. If the New York Times and similar publications do not take the time to understand the reasoning behind the Acehnese legal system, they end up sounding alarmist, and run the risk of isolating the Acehnese people when the West should be attempting to become closer to potential political allies in a moderate Muslim nation with strong geopolitical pull.

[The author lived in Banda Aceh, Indonesia working on legal development projects from May-August 2008. He is the author of “The Struggle for Women’s Rights in Nanggroe Aceh Darussalam Province: A Look at History and Emerging Legislation”, published in the Singapore Law Review, December 2008.]

Increasingly, recent scholarship on Afghanistan has suggested that the way forward for the country’s legal system is greater cooperation between state and customary laws (2). This assertion simply reflects the reality that most Afghans, particularly those in rural areas, have far more trust in legal mechanisms at the local level than at the state level. In a 2008 survey done by the Asian Foundation, less than half of respondents trusted state courts, versus customary mechanisms, which have the support of the overwhelming majority of respondents. As of 2007, up to 80% of legal claims were being handled by customary dispute mechanisms. Sharma & Sen show why customary mechanisms yield so much trust and confidence:

“First, it is focused on substance than on procedure. Second, it aims at compensation and reconciliation and not at punishment. Third, the concerned parties believe that justice is being done.” (p. 49)

Allowing customary law to operate within a state system is not an entirely new concept. Several other countries have legal systems where authority is shared with customary rule of law. In Bangladesh, India and Malaysia, certain indigenous communities conduct their legal affairs through customary legal mechanisms. The scope of such affairs is usually confined to civil, property, and marriage issues as well as minor criminal matters. In India, this limited legal autonomy is constitutionally entrenched. Similarly, South Africa has set up a Law Reform Commission that has been actively exploring, and facilitating (albeit cautiously), interaction between state and customary legal systems. Scholarship on legal pluralism within Africa is a rich domain, with literature spanning the better part of the last century (3).

Scholarship on Afghanistan’s legal system may not have the same depth as in other areas of world; however, a wealth of literature on the potential of legal pluralistic approaches is now available. Drawing from this literature is not only instructive in terms of the success stories, but also in terms of the dilemmas that must be addressed when state and customary legal systems clash. Two such points of conflict are worth mentioning:

1. Normally customary legal systems function “under” (or within) the state legal system. The interface of these two systems regularly challenges those engaged in the process. State law, particularly in Afghanistan which has a civil code, aspires to consistency and predictability in the laws applied. This understanding of law generally contrasts with customary law, which allows the various parties to negotiate and find a solution which best suits their needs. One approach suggested for facilitating the interaction of the two systems is to codify customary law when possible, thus adding a level of consistency. This approach has been sharply criticized, as to codify customary law would be to add rigidity, altering its very essences of fluidity and adaptability (4). Moreover, in a country where the vast majority of the population is illiterate, one must question the practicality of adding in another legal text to the growing pile of written laws already in existence. The other approach is to allow customary law to function as it does with the caveat that it is governed by the country’s constitution. Thus, the state would play a role in ensuring that the customary laws do not contravene broad constitutional principles. However, this approach may give customary mechanisms more control (and less accountability and consistency) than some may find desirable.
2. Customary legal norms must be cautiously reconciled with human rights practices. One should approach customary law with the intention of respecting diverse normative values. Nonetheless, gross violation of rights, particularly those committed against women, must also be added. Customary practices vary according to region. For example, in some regions the swapping of women between families is as accepted a practice as recompense for major crimes (i.e. murder). Practices which constitute human rights violations must be circumscribed accordingly if customary mechanisms are to be given authority.

The task of starting nearly from scratch and setting up a functional legal system in Afghanistan may appear daunting. However, co-opting the assistance of customary legal mechanisms that are already in place, while remaining cognizant of the issues which normally arise when aspiring to legal pluralism may provide a fruitful avenue for progress.

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1: Much discussion and controversy in modern scholarship surrounds the use of the term “customary” law, in part because it raises the image of an archaic social order. At times, it is alternately called informal law, chthonic law, or tribal law.

2: Amongst those who have written on this topic are: USIP, Wardak, and the Norwegian Refugee Council.

3: Some notable individuals who have contributed to the relevant scholarly discourse: Gluckman, Bennett, and Bekker.

4: T. W. Bennett and T. Vermeulen, Codification of Customary Law, Journal of African Law, 1980, Vol. 24 No. 8, p. 206