Paper short abstract:

Seeing legal plurality as a unique resource instead of an obstacle for the development of Africa.

Paper long abstract:

In Africa, legal pluralism is a reality. State, customary and religion-based laws coexist and cohabit. In most cases, the rules stemming from those different sources clash: for instance, in state-enacted civil law (marriage, civil status, inheritances, matrimonial regimes, land rights etc.) western-style rules are omnipresent, which do not always fit the habits of African citizens; hence a conflict of sort with customary or religious law, which subjects law seem to prefer, notably in rural areas. Likewise, when it comes to business law, the global architecture of OHADA is a calque of French law and does not always match the needs of Africans. Thus, in the absence of an appropriate law, which subjects of law can recognize as their own, economic activity runs the risk of stagnating, for lack of a social consensus as to the applicable legal framework. This results, for instance, in the ubiquity of informal work with its cortege of negative consequences.

In actuality, legal pluralism exists to various degrees in every society in the world although it is more obvious in Africa, notably due to external interventions carried out, among others, by colonizing powers. For such purpose, said pluralism should have been assessed as a means of enrichment of the law, in the service of development, and with the purpose of yielding functional rules.

The goal of our reflection is to lay foundations for a reconstruction of law in Africa, in order to successfully integrate the various sources of law. To attain such goal, one should strive to take into consideration the needs and habits of the Africans (thus use an adaptive method) instead of merely mimicking the law produced in other societies. Successful experiences in integrating several legal sources in the service of development in Africa will be cited.

Paper Download (458 KB)