The Formation of Law: From Customs to Positive Law
摘要
This chapter analyses the development of legal systems from custom to positive law across African and Western traditions. It first reviews anthropological theories, showing that even non-complex societies possess legal frameworks grounded in reciprocity and social control exercised by elders or ritual authorities. The study then examines the differentiation of law-making, adjudication, and enforcement in complex societies, focusing on the emergence of the continental legal system, based on Roman-inspired codification, and the English common law of judicial precedents. It further analyses Sub-Saharan African legal orders rooted in customary law, their emphasis on community interests and reconciliation over individual rights and punishment. Finally, the chapter examines the transformative impact of colonisation and decolonisation and highlights how Ethiopia’s resistance to colonisation shaped its approach to legal development.