Legal Pluralism and Customary Law: Marriage Concepts
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Published: Fri, 27 Apr 2018
What is legal pluralism?.Virtually every society is legally plural whether or not is has a colonial past including Cameroon. Legal pluralism has been existing in Cameroon for long with it numerous ethnic groups and diverse cultures. It is estimated that Cameroon has approximately 250 ethnic group and cultures with the Bangwa been one of the them, during colonization era, legal pluralism was intensified with the white man’s culture and law also having a role to play whether or not is has a colonial past. Legal pluralism is a central theme in the reconceptualization of the law/society (S.A Merry, “legal pluralism” (review article),). It is also generally defined as a situation in which two or more legal systems coexist in the same social field. (Pospil,1981 “Modern and Traditional Administration of Justice in New Guinea,”; Griffiths 1986a “What is Legal Pluralism?,”. Moore S.F (1986a), Social Facts and Fabrications: Customary law on Kilimanjaro, 1880-1980).
To Hookers, he define is from the social science version, he provide a masterful and comprehensive overview of legal pluralism in this sense, in surveying plural legal systems in Asia, Africa, and the Middle East (1975). He define legal pluralism as circumstances “in the contemporary world which have resulted from the transfer of whole legal systems cultural boundaries” (Hookers, M.B.(1975) legal pluralism: An Introduction to Colonial and Neo-colonial laws. Griffiths distinguishes between the “social science view of legal pluralism as an empirical state of affairs in society (the coexistence within a social group of legal order that do not belong to a single “system”) and what he calls as “juristic” view of legal pluralism as a particular problem, of dual legal systems created when European countries established colonies that superimposed their legal systems. To Moore (1986b), he tries to describe the new legal pluralism in which he says, the new legal pluralism moves away from questions about the effect of law on society or even the effect of society on law towards conceptualizing a more complex and interactive relationship between official and unofficial form of ordering. This brings us to point Masaji Chiba, “Three dichotomies of law. An analytical scheme of legal culture”, Tokai law Review,1987, he define what is official and unofficial law? Official law was defined as “the legal system sanctioned by the legitimate authority of the country,” typical of which was state law “directly sanctioned by the legitimate government of a state.” And he also defined unofficial law as all type of law other than state law are classified as unofficial law insofar as they are not officially authorized by state law.
On the other hand, customary law can be defined as a cultural construct with political implications, a set of ideas embedded in relationships that are historically shifting ( Moore, Social Facts and Fabrications: Customary Law on Kilimanjaro, 1880-1980). In Cameroon customary law is a source of law in the country it is legally recognized even though there are some customary law which are not in accordance to the repugnancy clause. The customary court ordinance cap 142 of 1948 applicable to Anglophone Cameroon defines customary law as “the native law and custom prevailing in the area of the jurisdiction of the court so far as it is not repugnant to natural justice, equity and good conscience, nor incompatible either direct or by natural implication with the written law for the time being in force”.
What actually is marriage? In Christendom, marriage is typically regarded as an institute and ordained by God for the lifelong relationship between one man as husband and one woman as wife. It can also be defined as a legalized social relationship between one man and one woman with the exclusion of all others (Monogamy) on the other hand marriage can be defined as union between one man with two or more wives (Polygamy). There is another form of marriage today mostly in the western world, a union between one man and another man or between one woman and another woman (Homosexual marriage). And this marriage today is of contemporary debate if actually it should be acceptable?
Customary marriage generally in Cameroon is another way of say it is polygamous marriage because the man can get married to as many women as he intern to with or without the consent of the wife. Marriage historically in Cameroon were arranged with varying degrees of veto power by the potential bride and groom, but individual chioce stressing companionship is becoming more common. Polygamy is a goal with many groups but it is not easily financially attainable. Some women prefer small-scale polygamy for the company and mutual aid a co-wife might provide.
My main point of concern to this Bangwa customary marriage is how it is not inconformity with the Cameroonian State law, Repugnancy Clause and also Human Right of the girl child. But before I actually explain the Bangwa marriage I will give brief explanation of the Cameroon legal system.
Cameroonian Legal System
The Cameroonian legal system is a relic of the colonial era, it is unique in the sense that, it consist of two distinct and often conflicting legal system, the English Common law in Anglophone Cameroon and the French Civil law in Francophone Cameroon. Cameroon is referred to as a bi-jural country ( Prof. P.Y Ntamack University Yaoundé-Cameroon). Cameroon’s legal system can be explain from; pre-colonial, colonial and the post independence era. There exist diverse unwritten indigenous laws and usages which apply to the numerous ethnic groups and cultures in Cameroon. Cameroon has been ruled by the following countries; Germany 1884, Britain and France 1916), and each of them had it own system of rule. The main sources of Cameroon have been shape due the two legal systems.
The main sources are:
- The Constitution: Cameroon has passed through three constitution, 1960, 1972 and 19960.
- The legislation: This is main the parliament.
- Judicial Precedent: It is treated differently by the Civil law and Common law. In the Frencophone courts,
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