Robert B. Seidman

The Political Economy of Customary Law in the Former British Territories of Africa

In assessing customary law two quite contradictory tendencies exist. Some approach customary law deferentially, even reverently. This constitutes “our” law. It expresses “our” values. We must nurture it. Others take precisely the opposite perception. Customary law constitutes the law of primitive tribes; we aim to become modern; ergo , we must do away with customary law. How to choose between these quite conflicting perspectives? We argue that to understand customary law, we must understand its political economy, that is, the function it performs in existing socio-economic and political structures, particularly with respect to the class interests involved. We undertake here to put forward our understanding of the political economy of customary law in the English-speaking countries of Africa. To do that, we describe, first, the difficulties which require explanation and solution, that is, the poverty and vulnerability of the mass of Africas people; second, for that poverty, we attempt an explanation, which takes the legal order as the manipulable variable; and, finally, we suggest briefly options for reform and change.

State and Law in Third World Poverty and Underdevelopment

By the twentieth century, societies achieved purposeful social change primarily through the exercise of state power.1 The paradox of third world poverty amidst potential global plenty, therefore, reflected a failure of the state. This chapter: (1) depicts a model of distorted third world patterns of resource allocation; (2) demonstrates the way the state and the legal order pre-formed the institutions — the repetitive patterns of social behavior — that shaped those resource patterns to benefit ruling oligarchies; (3) argues that merely replacing individual governors cannot alleviate third world poverty and powerlessness; (4) explains why, instead, development requires changing inherited institutions, which, in turn, implies the instrumental use of law; and (5) shows why copying other countries’ laws and institutions rarely worked.

Legislative Deliberation and the Drafting Process: The Drafter's Role

Abstract Dialogic deliberation lies at the heart of the democratic process, which in turn lies at the heart of the discourse of reason. Nevertheless, the world around, precious little deliberation actually occurs. That leaves without rhetorical test the assertions by its proponents that a proposed bill will ameliorate its targeted social problem. By position and professional and moral obligation, the legislative drafter is uniquely positioned to facilitate legislative deliberation. By accompanying a proposed bill with a research report justifying the bill, the drafter can help ‘kick-off’ deliberation by supplying the facts and logic on which the bill rests and an agenda for structuring that deliberation.

Law and Crisis in the Third World@@@State and Law in the Development Process: Problem Solving and Institutional Change in the Third World

List of Boxes - List of Figures and Tables - List of Acronyms - Preface - Introduction - PART 1: THE PROBLEM - The Paradox - State and Law in Third World Poverty and Underdevelopment - PART 2: DEVELOPMENT THEORY AND PRACTICE - Of Theory and Justifications and Their Uses - A Participatory Development-Oriented Research Methodology - Which Grand Theory? - Categories for Generating Middle-Level Propositions Concerning Laws Underbearer Role - Implementing Institutions from Courts to Bureaucracy - PART 3: RESTRUCTURING THE STATE - The Fatal Race: The Rise of the Bureaucratic Bourgeoisie - Transforming the Colonial State: Controlling the Bureaucratic Bourgeoisie - PART 4: TRANSFORMING THE POLITICAL ECONOMY - Of Plans and Markets - Restructuring Foreign Trade - Rethinking the Agricultural Base - Perverse Industrialization - Financial Crisis - Welfare and Development: The Case of Education - Conclusion - References - Index

Implementing Institutions: From Courts to Bureaucracy

Without adequate implementation, the law-in-action will only accidentally conform to the law-in-the-books. That puts at risk, not only the whole development project, but also the Rule of Law (Seidman, R.B., 1987b:84, 85–6). Governments establish a variety of institutions to implement law: courts and other dispute-settlement institutions, public corporations, bureaucratic agencies.1 This chapter considers: (1) The general relationship between law-making and law-implementing; (2) a theory to guide investigations of implementing institutions; (3) the reasons for the abandonment of the myth of courts as the predominant implementing agency; and (4) the paradox of bureaucracy in the third world.

The Fatal Race: The Rise of the Bureaucratic Bourgeoisie

Voicing a populist, frequently socialist rhetoric,1 at independence nationalist political leaders assumed state power in new nations still defined by colonial capitalist laws and institutions. A fatal race ensued: would the leaders transform the institutions to favor the poor and disinherited? Or would the institutions transform the leadership (cf. Nzongola-Ntalaja, 1987)?

Which Grand Theory

To guide policy investigations for development a theory requires three elements: a methodology, a perspective (of which grand theory is one form), and categories of potential explanations. This chapter first addresses the relationship of grand theory to the problem-solving methodology. It then critically reviews the three major, often contradictory ideal types of grand theories that, at the end of the twentieth century, purported to guide development policy.

Welfare and Development: The Case of Education

Powered by basic needs strategies, the populist revolutions that overthrew colonialism focused their developmental efforts on welfare programs. Improved health care, improved water supplies, better roads, better housing, education for all: across the world, these constituted governments’ core programs. At the top of the list stood education.

Transforming the Colonial State: Controlling the Bureaucratic Bourgeoisie

Many people assumed that officials’ self-seeking behaviour reflected their low levels of personal morality. That, however, generally led to bromides: ‘In the passage of time, given steady economic progress, loyalties will gradually move from family, clan and tribe to nationstate,’ ‘the spread of education,’ ‘the evolution of public opinion,’ and ‘the rigorous enforcement of the laws’ (Wraith and Simpkins, 1963: 208). To curb inevitable official class tendencies towards goal-substitution, however, required more than simplistic cure-alls (Klitgaard, 1988). It called for restructuring the state (Nzongola-Ntalaja, 1987: 78).

Rethinking the Agricultural Base

In the twentieth century’s twilight, half to three fourths of all third world peoples still lived and worked in rural areas, primarily in jobs related to agriculture. With outmoded tools and infertile soils, they struggled for bare survival. Their per capita incomes hovered between