Paper short abstract:

The paper demonstrates how changes in customary law in Botswana respond to historically changing statutory law. Taking a legal realist, living-law approach, it shows that customary court decisions are embedded in notions of equity that also inform wider ideological, critical judicial movements.

Paper long abstract:

Our aim in this paper is to demonstrate how changes in customary law in Botswana have responded to historically changing statutory law. Taking a legal realist, living-law approach, the paper shows that customary court decisions are embedded in considerations of equity that also inform wider ideological, critical movements and processes of judicial innovation and legal reform. Certain changes in unwritten law have a clear trajectory, we argue, and in this sense Tswana customary law, as in the rest of Southern Africa, is to be grasped as ‘living law’, responsive to changing circumstances: although largely unwritten, a corpus of more or less agreed Tswana customary law does exist for any particular time and place. This implies that judges are not simply dealing with an amorphous body of unwritten custom and law, mekgwa le milao. Unwritten law is affected, we show, through customary judicial deliberation in court regarding notions of contemporary morality, of ‘fairness’ (tshiamo) and reasonableness in response to changing circumstances, as Gluckman too, for example, argued. Hence, changes in customary law have been impacted by and impact on the rhetoric and ethos of judicial decision-making. Customary law in Botswana is a semi-autonomous field. Schapera (1970) proposes that Tswana tribal “innovators” have historically had the capacity to introduce legal judgments in response to not only changing circumstances or norms but also changing notions of equity and fairness. Clearly, however, attempts to shape customary law from above against changing local understandings of gender equality or adultery practices, must equally fail.