Environmental Entitlements: Dynamics and Institutions in Community-Based Natural Resource Management

The article explores the issues of how law and space intersect in the area known as 'The South'. It examines the intersection between 'Northern' traditions of law and space and indigenous Australians experience of this 'history'. These intersections are germane to the question of how living in the South should now be understood in terms of the shape and pattern of legal relations. Ultimately, the question of indigenous and local traditions that form patterns of the lived experience of local peoples is mediated through law, but is not entirely subsumed by Northern law. Spatial and temporal existence is culturally embedded, and Aboriginal experience of time, for example, does not adhere to Northern parameters. Accordingly, the interleaving of law, tradition and 'existence' is played out in various ways in the colonial and postcolonial history of the South. Thus the interaction between the imposed legal concept and process, and that lived experience of the peoples of the South (whether we designate it as 'tradition' or not) is what is at issue in framing responses to the question of what it means to be positioned in the South.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1399188_code427203.pdf?abstractid=1399188&mirid=3

The Invention of Tradition: Property Law as a Knowledge Space for the Appropriation of the South

1. Introduction: institutions and ethnic politics Part I. Accounting for the Ethnic Cleavage Structure: 2. Accounting for Zambia's ethnic cleavage structure I: the emergence of tribal identities in colonial Northern Rhodesia 3. Accounting for Zambia's ethnic cleavage structure II: the emergence of language identities in colonial Northern Rhodesia Part II. Accounting for Ethnic Coalition-Building Choices: 4. Ethnicity and ethnic politics in post-independence Zambia 5. Explaining changing patterns of ethnic politics Part III. Testing the Model: 6. Competing explanations 7. Ethnic campaigning: testing the observable implications of the model for elite behavior 8. Ethnic voting: testing the observable implications of the model for mass behavior Part IV. Beyond Zambia: 9. Regime change and ethnic politics in Africa 10. Beyond regime change, beyond Africa Appendix A. Native authorities and tribal identifications Appendix B. Survey and focus group methodologies Appendix C. Tribal affiliations of parliamentary candidates Appendix D. Tribal demographies of electoral constituencies.

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Institutions and Ethnic Politics in Africa

The paper proposes that reports of pervasive competition and conflict over land in sub-Saharan Africa belie a current image of negotiable and adaptive customary systems of landholding and land use but, instead, reveal processes of exclusion, deepening social divisions and class formation. Cases of ambiguous and indeterminate outcomes among claimants over land do occur, but the instances of intensifying conflict over land, deepening social rifts and expropriation of land beg for closer attention. More emphasis needs to be placed by analysts on who benefits and who loses from instances of ‘negotiability’ in access to land, an analysis that, in turn, needs to be situated in broader political economic and social changes taking place, particularly during the past thirty or so years. This requires a theoretical move away from privileging contingency, flexibility and negotiability that, willy-nilly, ends by suggesting an open field, to one that is able to identify those situations and processes (including commodification, structural adjustment, market liberalization and globalization) that limit or end negotiation and flexibility for certain social groups or categories.

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1471-0366.2004.00080.x

Inequality and Social Conflict Over Land in Africa

▪ Abstract Legal consciousness as a theoretical concept and topic of empirical research developed to address issues of legal hegemony, particularly how the law sustains its institutional power despite a persistent gap between the law on the books and the law in action. Why do people acquiesce to a legal system that, despite its promises of equal treatment, systematically reproduces inequality? Recent studies have both broadened and narrowed the concept's reach, while sacrificing much of the concept's critical edge and theoretical utility. Rather than explaining how the different experiences of law become synthesized into a set of circulating schemas and habits, the literature tracks what particular individuals think and do. Because the relationships among consciousness and processes of ideology and hegemony often go unexplained, legal consciousness as an analytic concept is domesticated within what appear to be policy projects: making specific laws work better for particular groups or interests.

/pdf/after-legal-consciousness-2gw1bbu8aw.pdf

After legal consciousness

This book explores the historical formation during the colonial period of that part of African law known as customary law. In treating the emergence of the customary law as part of the history of the social and economic transformation of African societies under colonial rule, it also provides an interpretation of the ways in which people tried to control the disrupting effects of the changes which they experienced. Martin Chanock shows how African ideas, aspirations and activities regarding law were shaped by interaction with the legal ideas of the British colonisers, their understandings of African societies, and the judicial institutions of the colonial state. These thematic considerations are illustrated by studies of how the customary law developed alongside criminal law in colonial society in Malawi and Zambia as part of the moral weaponry of a changing social order, and more specifically by describing the role of the customary law of the family in conflicts between men and women in the new colonial political economy.

Law, custom, and social order : the colonial experience in Malawi and Zambia

Preface Acknowledgements List of abbreviations Part I. Puzzles, Paradigms and Problems: 1. Four stories 2. Legal culture, state making and colonialism Part II. Law and Order: 3. Police and policing 4. Criminology 5. Prisons and penology 6. Criminal law 7. Criminalising political opposition Part III. South African Common Law A: 8. Roman-Dutch law 9. Marriage and race 10. The legal profession Part IV. South African Common Law B: 11. Creating the discourse: customary law and colonial rule in South Africa 12. After Union: the segregationist tide 13. The native appeal courts and customary law 14. Customary law, courts and code after 1927 Part V. Law and Government: 15. Land 16. Law and labour 17. The new province for law and order: struggles on the racial frontier 18. A rule of law Part VI. Consideration: 19. Reconstructing the state: legal formalism, democracy and a post-colonial rule of law Bibliography Index Index of legal cases cited.

The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice

This essay outlines a general framework for thinking about African ideas about proprietary rights and considers how this might produce insights into ideas about social relations.Drawing largely on examples from East and Central Africa, and on an analysis of property disputes pursued to the Natal Native High Court, it is suggested that the development of a customary law came first to the ‘law of persons’ and then to the ‘law of property’. Ideas and disputes relating to land and to other forms of ‘old’ and ‘new’ property are all examined. Ideas about what were and were not commodities, and about different ways of dealing with kin and with strangers, are shown to be fundamental to the understanding of disputing behaviours and the meaning of customary norms. Disputes were not simply about ownership and value but about the changing boundaries of commodity status. Ideas about appropriate behaviour regarding the transactional order between kin concerning ‘old’ property (food and cattle) extended into the dealings between strangers about ‘new’ property (acquired with money through the market), whilst the ideas and practices of the market economy had a significant effect on the way ‘old’ property was dealt with among kin. The development of the customary law related to property also has a particular relevance in understanding generational conflict in Africa.It is argued that customary law was formed in the process of a dialogue between rulers and ruled during the colonial period. The colonial state impeded the development of individual tenure by the ‘invention’ of communal tenure but was ambivalent in response to attempts by younger men, and by women, to separate estates from the control of older males.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/57BB2381D560D140BCFA3F8F5EE37A1E/S0021853700025342a.pdf/div-class-title-a-peculiar-sharpness-an-essay-on-property-in-the-history-of-customary-law-in-colonial-africa-div.pdf

Martin Chanock

Papers

Law, custom, and social order : the colonial experience in Malawi and Zambia

The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice

A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa

Neither customary nor legal: african customary law in an era of family law reform

'Culture' and Human Rights orientalising, occidentalising and authenticity