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Submitted by Kenneth K. Mwenda on
A thought-provoking article... The Law and Development discourse has evolved over that last few decades in tandem with ideological developments in the global political economy. What has not been fully captured though by much of western jurisprudence and much of western legal scholarship is the role that communal rights play in promoting distributive justice and remedial justice, including the fashioning of the rule of law. When focusing on socio-economic developments in certain cultural settings and contexts of the developing world, much of the human rights debate often omits, either by design or by default, the issue of communal rights and responsibilities. There is a tendency to be pre-occupied with capitalist formations that gave birth to the legal theory underpinning individual rights and liberties. Although the article highlights the virtues of applying some form of ‘soft law’, in essence much of what is termed ‘soft law’ here derives its legitimacy from the normative value system reflected in much of African customary law. On its own, a bye-law can only be valid if it derives its authority from a higher legal instrument such as a statute, subsidiary legislation or some form of discretionary power entrusted by legislation to an administrative authority. By contrast, African customary law does not require such ‘formal’ legal structures to attain enforceability or justiciability. It remains enforceable in many courts of law, as long as it is not repugnant to natural justice, good conscience and equity. However, we are mindful that what constitutes ‘natural justice, good conscience and equity’ remains a separate discussion for another forum. Suffice it to say, African customary law not only embraces the notion of communal rights in the developing world, but it also advances the concept of individual and communal responsibilities. Now, the concept of responsibilities here should not be confused with the positivist notion of duties or obligations, say, at common law or under a statute. By contrast, responsibilities are driven more by value persuasions and traditions as opposed to the force or command of the State. And akin to this analysis of Africa customary law is the concept of Confucianism which holds that one should give up one’s life, if necessary, either passively or actively, for the sake of upholding the cardinal moral values of ren and yi.