Corsi di Studio del Dipartimento di Culture, Politica e Società

Law shapes and is shaped by social, political and cultural institutions and practices. In this course students will be introduced to key concepts in socio-legal studies and to scholarship in, on and, particularly, from Africa, that provide insights into the relationship between law and other social institutions on the continent. Africa is a large and diverse continent. The course explores shared themes of concern to African intellectuals, including aspects of law and colonialism, as well as country-specific engagements with law, particularly in post-colonial Africa. It moves from broad conceptual questions about the nature of African law to considering the ways in which laws are mobilized and contested by African legal actors and by ordinary citizens to address contemporary social concerns relating to, amongst others, land, sexuality, women’s rights, and access to justice.

 

Throughout the course students will consider questions of universal interest that arise – and are best addressed – at the intersections of legal, social, political and economic fields, including why some laws are made (or enforced) and others are not, the institutional barriers to effective implementation of law, the reasons why citizens turn to the law (or not) to address their disputes, the distributional effects of law, and the functioning of police, prosecutors, courts and prisons – as well as the other forms of social regulation that fill the gaps in between. As such, the course provides participants with an opportunity both to learn about and from Africa.

 

Drawing on the description above, the course aims to familiarize students with some of the following topics:

 

• Debates on the nature of “African Law”.

 

• Living customary law and vernacular dispute management processes.

 

• The relationship between law and colonialism, and its enduring impact on African legal systems.

 

• Legal pluralism, legal culture, interlegality, and hybridity in post-colonial Africa.

 

• The rule of law, human rights, and access to justice in Africa.

 

• African debates on transitional justice.

 

• Law on the books versus law in action and the challenges of law-making and implementation.

At the end of this course, students should be in position to demonstrate:

 

• Knowledge of key concepts and theories for understanding the relationship between law and society, and an ability to apply these to the African context.

 

• An understanding of the complex and dynamic relationship between received Western law and institutions, religious laws and (other) vernacular laws in Africa and the challenges of societies embedded in multiple and overlapping legal orders.

 

• Insight into African intellectual contestations about human rights, access to justice, and the rule of law in Africa.

 

• The ability to engage in interdisciplinary analysis of African legal issues, drawing on an understanding of the nexus between law and the broader economic, cultural and political context.

 

A sound knowledge of key debates in African law and society, drawing on their acquaintance with the work of African scholars

The course consists of 36 hours (6 CFU) of lectures. Students will be required to do all readings and submit written response to those readings in advance of class discussions.

 

Students will be required to take a written exam. The final mark, expressed on a 30-point scale, will be composed as follows:

 

Weekly response papers (3% x 6 weeks) and class participation (2% x 6 weeks): 30%

Two reading assignments and group presentations (15% each): 30%

Final essay of 4000 words: 40%

The course will cover the following ground:

 

1. Africa, Law and Society
2. Legal Pluralism and Interlegality
3. Law and Colonialism in Africa
4. African Law, Customary Law or Vernacular Law?
5. Living Customary Law
6. Vernacular Dispute Management & Traditional Courts
7. Constituting the post-colonial state in Africa
8. When is the past not the past? On irresolution and revolution
9. Human Rights, Rule of Law & Access to Justice
10. Just Transitions?
11. Women’s Rights
12. Human Security
13. Violence Against Women and Children
14. LGBTQIA+ Rights
15. Lawyers and Judges

All texts and documents will be made available online before the beginning of the course.

 

18. Adu Boahen, Africa and the Colonial Challenge, in A. Adu Boahen (ed) General History of Africa VII: Africa Under Colonial Domination 1880-1935 (UNESCO & Heinemann, 1985) pp 1-18.

 

Claude Ake, What is the problem of ethnicity in Africa?, in Transformation 22 (1993) pp 1-14.

 

Antony Allott, Law in the New Africa, in African Affairs, Vol. 66, No. 262 ( 967), pp 55-63.

 

Layla Al-Zubaidi, Paula Assubuji and Jochen Lucksteiter (eds), Women, Custom & Access to Justice, Perspectives Africa, Issue 3 (Heinrich Boëll Stiftung, 2013) pp 1-32.

 

Penelope Andrews, Culture and Women’s Rights: A Continuing Dilemma, in From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Rights (Ashgate, 2012) pp 63-89.

 

Jonathan Berger, Getting to the Constitutional Court on time: A litigation history of same-sex marriage, in Judge, Manion and de Waal (eds) To Have and To Hold (2009) pp 17-28.

 

186. W. Bovill, Italy in Africa: Part I, in Journal of the Royal African Society, Vol. 32, No. 127 (Apr., 1933), pp. 178-186.

 

361. W. Bovill, Italy in Africa: Part II, in Journal of the Royal African Society, Vol. 32, No. 129 (Oct., 1933), pp. 350-361.

 

Martin Chanock, Constitutionalism, Democracy and Africa: Constitutionalism Upside Down, in Law in Context 28 (2010) pp 126-144.

 

Danwood Chirwa and Fatima Osman, Taming the Uncivilized?: Constitutional and Other Complexities of Banning the Burkini and Other Muslim Dress in Africa, in Amérigo (ed) Antropología cultural del vestido: perspectivas sobre el burkini (Dykinson, 2018) pp 143-170.

 

Sarai Chisala-Tempelhoff and Monica Twesiime Kirya, Gender, law and revenge porn in Sub-Saharan

Africa: a review of Malawi and Uganda, in Palgrave Communications (2016) pp 2-9.

 

Aninka Claassens and Dee Smythe, Chapter 1: Marriage, land and custom: What’s law got to do with it?, in Marriage, Land and Custom: Essays on Law and Social Change (Juta, 2013) pp 1-27.

 

John L. Comaroff, Colonialism, Culture, and the Law: A Foreword, in Law & Social Inquiry, Vol. 26, No. 2 (2001) pp 305-314.

 

John L. Comaroff and Simon Roberts, Chapter 1: Introduction, in Rules and Process: The Cultural Logic of Dispute in an African Context (Chicago University Press, 1981) pp 3-29.

 

Boaventura de Sousa Santos, Chapter 1: The Heterogeneous State and Legal Plurality, in de Sousa Santos, Trindade & Meneses (eds) Law and Justice in a Multicultural Society: The Case of Mozambique (CODESRIA, 2006) pp 3-29

 

Boaventura de Sousa Santos, João Carlos Trindade, Maria Manuel Leitão Marques, Conceição Gomes, João Pedroso, André Cristiano José, Guilherme Mbilana, Joaquim Fumo and Maria Paula Meneses, Chapter 5: Methodological Issues, in de Sousa Santos, Trindade & Meneses (eds) Law and Justice in a Multicultural Society: The Case of Mozambique (CODESRIA, 2006) pp 103-112.

 

Josephine Jarpa Dawuni and Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, in Africa Today, Vol. 62, No. 2 (Winter 2015), pp 45-69.

 

Sara Dezalay, Lawyers’ Empire in the (African) Colonial Margins, in International Journal of the Legal Profession, 24:1 (2017) pp 25-32.

 

Anthony C. Diala, The concept of living customary law: a critique, in The Journal of Legal Pluralism and Unofficial Law (2017) pp 1-22.

 

Berihun A. Gebeye, Decoding Legal Pluralism in Africa, The Journal of Legal Pluralism and Unofficial Law, 49:2 (2017) pp 228-249.

 

Chuma Himonga, The Right to Health in an African Cultural Context: The Role of Ubuntu in the Realization of the Right to Health with Special Reference to South Africa, in Journal of African Law, 57(2) (2013), pp 165-195.

 

Chuma Himonga and Fatima Diallo, Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law, in PER / PELJ 20 (2017) pp 2-16.

 

Melanie Judge, Law, Education and a Not-Only-LGBT Revolution, in Blackwashing Homophobia (Routledge, 2018) pp 105-127.

 

Nyasha Karimakwenda, Today It Would Be Called Rape: A Historical and Contextual Examination of Forced Marriage and Violence in the Eastern Cape, Acta Juridica (2013) pp 339-356.

 

Heinz Klug, Constitutionalism, Democracy and Denial in Post-Apartheid South Africa, in Wisconsin Law School Legal Studies Research Series Paper 1204 (2012) pp 1-24.

 

Milli Lake, Ilot Muthaka and Gabriella Walker, Gendering Justice in Humanitarian Spaces: Opportunity and (Dis)empowerment Through Gender-Based Legal Development Outreach in the Eastern Democratic Republic of Congo, in Law & Society Review, Vol 50, No 3 (2016) pp 539-574.

 

Tshepo Madlingozi, On Transitional Justice Entrepreneurs and the Production of Victims, in Journal of Human Rights Practice Vol 2 No 2 (2010) pp 208–228.

 

Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press, 1996) – Chapters 2 and 4.

 

Mark Fathi Massoud, Islamic Law, Colonialism, and Mecca's Shadow in the Horn of Africa, in Journal of Africana Religions, Volume 7, No 1 (2019) pp 121-130.

 

Mark Fathi Massoud The Politics of Islamic Law and Human Rights: Sudan’s Rival Legal Systems, in Klug & Merry (eds) The New Legal Realism, Volume II: Studying Law Globally (Cambridge University Press, 2016) pp 96-112.

 

Mark Fathi Massoud, Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan, in Law & Society Review, Vol 45, No 1 (2011) pp 1-32.

 

Sally Engle Merry, Legal Pluralism, in Law & Society Review, Vol. 22 No. 5 (1988) pp 869-896.

 

Sindiso Mnisi Weeks, Chapter 1: Introduction, in Access to Justice and Human Security: Cultural Contradictions in Rural South Africa (Routledge, 2018) pp 1-36.

 

Joel M. Modiri, Race, history, irresolution: Reflections on City of Tshwane Metropolitan Municipality v Afriforum and the limits of “post”-apartheid constitutionalism, in De Jure Law Journal (2019) pp 27-46.

 

Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, in Harvard International Law Journal Vol 42 (2001) pp 201-245.

 

Makau Mutua, Africa and the Rule of Law, in SUR - International Journal on Human Rights 23 (2016) pp 159-173.

 

Lea Mwambene & Helen Kruuse, The thin edge of the wedge: Ukuthwala, Alienation and Consent, in South African Journal on Human Rights 33:1 (2017) pp 25-45.

 

Thandabantu Nhlapo, Homicide in traditional African societies: Customary law and the question of accountability, in 17 African Human Rights Law Journal (2017) pp 1-34.

 

Charles Ngwena, What is Africanness? Contesting Nativism in Race, Culture and Sexualities (Pretoria University Law Press, 2018) – Chapters 1-4.

 

Celestine Nyamu-Musembi, Towards an actor-oriented perspective on human rights, IDS Working Paper 169 (2002) pp 1-20.

 

Stella Nyanzi & Andrew Karamagi (2015): The social-political dynamics of the antihomosexuality

legislation in Uganda, in Agenda (2015) pp 1-15.

 

Joe Oloka-Onyango and Sylvia Tamale, "The Personal is Political," or Why Women's Rights are Indeed Human Rights: An African Perspective on International Feminism, in Human Rights Quarterly, Vol 17, Issue 4 (2005) pp 691-731.

 

Ada Ordor, Chapter 8: Associational Life and Women’s Constitutional Rights in Africa, in Rohrs and Smythe (eds) In search of equality: women, law and society in Africa (UCT Press, 2014).

 

Smith Ouma, Harrison O.Mbori & Cynthia A.M. Amutete, Engendering Rule Of Law in Health Care Delivery in Kenya, in Wisconsin International Law Journal Vol 35 (1) (2017) pp 82-137.

 

Nigel Patel, Violent cistems: Trans experiences of bathroom space, in Agenda, 31:1 (2017) pp 51-63.

 

João Pedroso, João Carlos Trindade, Maria Manuel Leitão Marques and André Cristiano José, Chapter 7: The Courts in Action: Functions, Resources, Case Flow and Characterization of Litigation, in de Sousa Santos, Trindade & Meneses (eds) Law and Justice in a Multicultural Society: The Case of Mozambique (CODESRIA, 2006) pp 145-172.

 

Amr A. Shalakany, The day the graffiti died, in London Review of International Law Vol 2, Issue 2 (2014) pp 357-378.

 

Sanele Sibanda, When Is the Past Not the Past? Reflections on Customary Law under South Africa’s Constitutional Dispensation, in Human Rights Brief 17, no.3 (2010) pp 31-35.

 

Justice Tankebe, Self-Help, Policing, and Procedural Justice: Ghanaian Vigilantism and the Rule of Law, in Law & Society Review, Vol. 43, No. 2 (Jun., 2009) pp 245-270.

 

Elizabeth Thornberry, Chapter 5: Navigating the Politics of Consent, in Colonizing Consent: Rape and Governance in South Africa's Eastern Cape (Cambridge University Press, 2018) pp. 248-299.

 

Janine Ubink and Sindiso Mnisi Weeks, Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi, in Law & Society Review, Vol. 51, No 4 (2017) pp 825-858.

 

Valeria Verdolini, Looking for the Revolution: Fighting for Socioeconomic Rights and Democracy in Tunisia. Oñati Socio-legal Series 5 (1) (2015) pp 318-340.