State and Traditional Law in Angola and Mozambique

The links and connections between State and traditional legal systems in Angola and Mozambique have not been widely studied, although they constitute matters of great momentum. for state building in each of these countries. The papers collected here are an attempt to fill in some of that gap, by charting many of the main issues - touching upon matters both theoretical and empirical - raised by often uneasy and highly contested modes of articulation. From different, albeit complementary, angles, all papers focus on some of the legal and political problems encountered and the negotiations as well as the solutions generated for the management of what in many cases amounts to potentially threatening forms of pluralism.

Preface

The study of legal pluralism - like its close relative, anthropology -is an academic discipline that was born out of the encounter between Europe and the countries that it was eventually to colonise. Yet, contrary to what many people may wrongly suppose, this does not mean that the study of legal pluralism ceased to be useful when former colonics became independent.

On the contrary, many of the analytical techniques and some of the knowledge generated by the experience of colonialism are these days more useful than ever. The colonial period, it transpires, was not a brief aberration in between periods of relative normality. It was a phase in a much longer story of action and interaction between societies geographically far removed from one another.

The legacy of colonial times is still relevant to our understanding of the world for a number of reasons. Above all, it is now clear that in some former European colonies, particularly in Africa, the nationalist ambition of building powerful bureaucratic stales to govern model nations has not been fulfilled. Contemplation of the social and political reality that has emerged since the golden age of nationalism allows us to discern aspects of postcolonial societies that bear an obvious resemblance to patterns existing in previous times. Many enduring features of postcolonial societies were often overlooked in earlier generations by political actors and observers too ready to believe that they had discovered the key to historical change. The re-emergence of chiefs and plural legal authorities sometimes looks like a remarkable resurgence, but is not really anything of the sort. Legal pluralism never entirely disappeared in African states, all of which were once colonies in some sense or other. Simply, the existence of plural legal arenas has become easier to see than it was three decades ago. Like many of the apparent revivals of aspects of African history once regarded as belonging to the colonial or precolonial past, today's legal pluralism is both old and new. This is not as odd as it may sound: what is more commonplace than to observe that institutions have histories, but also that they change constantly?

Nor is it only in Africa that we can nowadays perceive a need to look again at societies whose social homogeneity and governmental coherence were never as complete as was often supposed. European societies have changed over time, as all communities do, and have absorbed substantial numbers of newcomers from other parts of the world. The European Union has created a new body of law that offers a challenge to state law. New cultural] altitudes, new immigrant communities and new sociological insights stress the plurality of European societies rather than their tendency to uniformity. In light of what has happened to Europe itself in recent decades, historians can now see that the administration of colonial territories, rather than involving the implementation of archaic techniques, often involved highly innovative ones. What was done Io colonial populations at one stage of history was sometimes enacted in the metropole decades later. These facts alone give new usefulness to what were originally colonial sciences.

Meanwhile, the social sciences - the standard intellectual method for understanding how people behave collectively and the relations they create - have become markedly less self-assured than they were 40 or 50 years ago, which happens also to have been the golden age of African nationalism. These intellectual and political tendencies are related. Two or more generations have been obliged to consider difficult questions concerning the social equivalent of indigenous knowledge. Social scientists schooled in the classics of European thought are no longer as confident as they were in the high age of modernism that they have understood the true nature and mechanisms of progress, development and state-building. Thinkers from former colonial countries have investigated the degree to which leading figures from the European social science tradition have theorised on the basis of an idealised reading of European history, rather than on a genuinely universal pool of data. While no consensus has emerged from these debates, it seems clear that intellectual nihilism and cynicism are not useful reactions. Rather than rejecting the great tradition of social science, it makes far more sense Io enrich it with attention to data from the former third world in a continuing attempt to create a truly universal social science.

Seen in this lens, the plural legal systems typical of African territories under colonial rule were not a brief moment in a passage to the formation of nation-states. They begin to look more like exceptionally clear and interesting examples of a pluralism that exists in less obvious form in most societies, perhaps even in all. In any event, the chapters gathered in this volume provide rich material for reflection not only on the condition of some African countries today, but on the evolution of the world.

STEPHEN ELLIS, Afrika Studie Centrum, Leiden