Methodological Paradigms in Representing African Law: The Stratigraphic Approach and the Notion of Legal Pluralism

Abstract

Abstract The contribution deals with the representation of African law in comparative legal literature. It aims at moving forward from an understanding of African legal systems as bounded entities, frequently dubbed “pluralistic” but too often described as derivative from western law, that is the law of the former colonial powers. The paper reacts to common representations of African law based on the “stratigraphic approach” and on the notion of legal pluralism. While remaining a valuable tool for the study of African legal systems in a structuralist fashion, the stratigraphic approach ultimately fails to capture the more dynamic dimension of legal relations and the agency of legal subjects better conveyed by the notion of legal pluralism. The notion of legal pluralism, in turn, points at the existence of plural normative orders in all legal systems, therefore it seems to have lost its specificity to post-colonial African societies. Moreover, research on legal pluralism has become progressively dominated by academic lawyers adopting a normative and theoretical approach with little regard for empirical observation of law in society.