|
|
AEGIS European Conference on African Studies
11 - 14 July 2007
African Studies Centre, Leiden, The Netherlands
Show panel list
The Development of Law in Makete, Tanzania
| Panel |
36. Between customs and state law: The dynamics of local law in sub-Saharan Africa
|
| Paper ID | 531 |
| Author(s) |
Holstenkamp, Lars
|
| Paper |
No paper submitted
|
| Abstract | Building upon work by Douglass C. North and complementary ideas by other scholars, the presentation analyses the development of the law system in the Makete district, Tanzania, thereby identifying historical phases and central actors: From Kinga chiefdom to German colonialism and Christian mission to British colonialism with first attempts to codify customary law according to information given by old and honoured men (Customary Law Declarations) to Ujamaa socialism to more recent changes within the pluralistic law system caused by changing ideology, economic circumstances and gender roles (“moral discourse”, Koizumi 1995). Thus, it is shown that informal institutions and their changes have a huge impact on development and functioning of formal institutions.
Current problems can be lumped together to three groups: 1. not well defined property rights with respect to land; 2. lost flexibility through codification of customary law and transplantation of European law (with resulting incompatibilities to changing social norms); 3. opting out of customary law or selection between laws resp. the interpretation in a way that resembles existing patterns of power and domination. These three areas are further discussed, and their consequences for investment decisions made by different actors and for financial markets in Makete are analyzed. Thus, the mainly historical overview and the analysis of the dynamics of law are complemented by a discussion of the effect upon business, the financial sector in this remote district, and overall economic development. It is shown, among others, that the dominant pattern of economic activities characterized by small investments in a portfolio of activities mainly in the informal sector can be traced back to the state of law. Nevertheless, the transplantation of private property rights for land and other elements of western law systems might trigger even worse results. Therefore, by adopting the techniques of positive analysis of North’s approach and refuting some normative claims made, the need for new forms of law which are based on but go beyond “customary” and “modern” law is emphasized.
Findings are based upon fieldwork undertaken in Makete district in October 2005 and a review of the literature. |
|