Recording customary law: from historical attempts to contemporary self-recording - with a case study from northern Namibia
(University of California, Irvine)
Paper short abstract:
This paper discusses the different historical mechanisms that have been developed for recording customary law – codifications, restatements and case law systems – as well as the innovative approach of self-recording customary law undertaken by the Uukwambi Traditional Authority in northern Namibia.
Paper long abstract:
A recurrent theme in governments' attempts to navigate the plural legal orders found within their borders is their unease with the unwritten nature of customary law and the quest for some kind of formalization or recording of customary law. This same problem is haunting legal reform practitioners who have recently discovered the importance of customary legal systems for the poor majority's access to justice and legal empowerment. This paper starts with a discussion of the different historical mechanisms that have been developed for recording customary law: codifications, restatements and case law systems. Their most important weaknesses are the loss of adaptive capacity as well as the resulting gap between the recorded version and the living customary law. This paper then discusses the innovative approach to recording customary law that can be witnessed in certain areas through self-recording by customary groups or their traditional leaders. It will focus on the case of Uukwambi Traditional Authority in northern Namibia. This paper discusses how it was the complementarity of efforts at national, regional (Owambo Traditional Authorities) and local level, that led to a process of self-recording of Uukwambi customary laws, in alignment with Namibia's Constitution. This paper will analyze the process, the timing and the main change agents behind this transformation of customary law as well as the impact of the self-recording on the functioning of the Uukwambi justice system.
State strategies for navigating plural legal orders (IUAES Commission on Legal Pluralism)