A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial

Africa
Author(s): Martin Chanock
Source: The Journal of African History, Vol. 32, No. 1 (1991), pp. 65-88
Published by: Cambridge University Press
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Journal of African History, 32 (I99I) pp. 65-88 65
Printed in Great Britain

A PECULIAR SHARPNESS: AN ESSAY ON PROPERTY

IN THE HISTORY OF CUSTOMARY LAW IN
COLONIAL AFRICA

BY MARTIN CHANOCK
La Trobe University

I N studying 'legal history' our first questions should be about how to

constitute the field of study, and what we hope to derive from it.1 It is not
simply because it is there, a sort of epistemological Everest, and it is by no
means given what the subject is, nor what we want to know, nor why. A range
of choices exists as to whether to focus on state regulation or on conflicts
between people, on rules, or actions or ideas. My purpose in this essay is to
stimulate consideration, on the basis of a limited range of materials drawn
primarily from Southern, Central and East Africa, of ways in which thinking
about proprietary rights might give access to fundamental sets of conceptions
about social relations. How did African societies conceptualize relationships
between people concerning things? How were these conceptions changed
during the huge transformations of state and economy in the colonial
period ? What were the broader implications for the history of these societies
of the transforming of ideas about people and things? Legal history and
materials, through which we can gain access to one of the arenas in which
disputes about property were fought, can draw us towards the formation of
ideas in the process of conflicts between individuals, and can illuminate
important areas of ideology about the social order. Can we get, for example,
from thinking about this area, any insight into the nature of a 'moral
economy', or an 'economy of affection '2 and its adaptions ?
When I began to think about African legal change in the colonial period I
expected to begin with law and property. But it appeared that the es-
tablishment of the new state order, and changes in the general field of law
relating to kinship, had temporal priority. Sequencing is a fundamental
concern of an historian. This essay builds on the conception3 that the
changes in material relations which result from the new economy are

This paper was written initially in I987, for the University of Illinois symposium on
'New Perspectives in Colonial Africa', and I have had the advantage of comments from
members of that group, and from Professor Sally Falk Moore. Its title is derived from
doing contextual violence to Henry Maine, who wrote: 'The undivided state of property
in ancient societies is consistent with a peculiar sharpness of division, which shows itself
as soon as any single share is completely separated from the patrimony of the group'
(Ancient Law, Everyman edition, London, I9I7 [first edition, i86I], 28 I).
2 The misleading phrase is G. Hyden's. See Beyond Ujamaa in Tanzania (London,
I980). We must remember too that 'No objective analysis of property can omit the
subjective ... Peoples' feelings about property are an essential aspect of it.' P. Hollowell
(ed.), Property and Social Relations (London, I982), 2.
3 See M. L. Chanock, Law, Custom and Social Order: the Colonial Experience in
Malawi and Zambia (Cambridge, I985), I3-I6, 230-9.

AFH 32

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66 MARTIN CHANOCK

expressed in legal changes first in the realm of the 'law of persons', and
subsequently in changes in the 'law of property'.
These terms are, of course, constructs of western jurisprudence. It is a
feature of western legal systems in the post-slavery era, that rights in things
and rights related to persons are not negotiable in the same way. In dealing
with the question of property in African legal history, however, one is faced
with different conceptualizing. A number of questions in this regard need to
be posed. What did it mean when proprietary rights in people were asserted?
Is this a different question from questions about kinship relations generally?
Were the duties owed by the young to their elders property resources? Were
rights over the labour of others property? These became important questions
when African claims had to be dealt with by colonial courts. While I do not
consider these questions exhaustively in this paper, I want to make clear that
they are a necessary part of a comprehensive consideration of changing
conceptions of property in twentieth-century Africa.4 Beyond these rights,
there were the rights over land; over cattle; and over food. What can be said
about the shifting concepts of use and ownership in these 'traditional' areas?
Can these things be thought about separately from rights over persons? And
beyond these there is the, at first small, but eventually overwhelming, area
of 'non-traditional' property in money and other goods, from household
utensils and clothes, to urban land, licences and concessions, to workman's
compensation and pensions. What is the connection between conceptualizing
and behaviour in this field of new property, and that in the older property?
These things have obviously been thought about separately before, especially
slavery and land tenure. I will attempt here to see what can be derived from
considering them all together, as part of an interrelated process of change. In
this consideration we must remember the basic shift along the lines
suggested by Iliffe from a land rich economy in which rights in the labour of
others were the vital resource, to one in which land (and other material
assets) were fundamental to survival.5 We must also note not only that the
frontier between things which can be exchanged as commodities (property in
the western legal sense) and those which can not be is a moving one, but that
things can cross and re-cross this frontier, and that disputes can exist as to
which side they are on. Kopytoff writes:
Out of the total range of things available in a society, only some are considered
appropriate for marking as commodities. Moreover the same thing may be treated
as a commodity at one time, and not at another. And finally, the same thing may,
at the same timebe seenas a commodityby oneperson,and as somethingelse by another.
Such shifts and differences in whether and when a thing is a commodity reveal a
moral economy that stands behind the objective economy of visible transactions.'
The core of Snyder's analysis of property relations and legal change in
Senegal7 concerns the transformation of the pre-colonial systems of agri-
4 See Chanock, Law, Custom and Social Order, ch. 9; S. Miers and I. Kopytoff (eds.),
Slavery in Africa: Historical and Anthropological Perspectives (Madison, I977);
R. Hirshon (ed.), Women and Property- Women as Property (London, i984); and
C. Bledsoe, Women and Marriage in Kpelle Society (Stanford, I980).
5 J. Iliffe, The African Poor: a History (Cambridge, I987), ch. i.
6 I. Kopytoff, 'The cultural biography of things: commoditization as process', in
A. Appadurai (ed.), The Social Life of Things (Cambridge, I986), 64. My italics.
7 F. Snyder, Capitalism and Legal Change (London, 198I).

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 PROPERTY AND CUSTOMARY LAW 67
cultural production as they were subsumed within the world capitalist order
and the consequent changes in their legal forms to reflect the world of
commodity relations. The transformation of labour power into commodity
form eroded the basis of customary kinship. With the development of
migrant labour, both labour power and goods could be sold as commodities.
Household heads obtained cash through the transformation of their de-
pendants' labour power into commodity form, and gradually rural pro-
duction for cash sale also developed. Household heads therefore encouraged
dependent men and women to labour in various ways for money. As a result
rural households became increasingly dependent on commodity relations
and caught up in a struggle for control of labour power between generations.
The production of commodities, which enabled dependants to have access to
cash independently of elders, both accentuated the fragmentation of house-
holds and produced 'custom' as an ideological response to this frag-
mentation. 'Custom' was a weapon in the battle against the economic
independence of dependants. But, as the former dependants established their
own households, an accentuated and narrower version of 'custom' became a
new weapon in the hands of married men, one with which to control the
labour power of their immediate dependants. All these developments can
also be illustrated from the Central African material,8 and I think that the
core to the understanding of a property law must first lie in this process. In
this context I have two observations. Snyder quotes Marx to the effect that
'Commerce has a more or less dissolving influence everywhere on the
producing organization' but the extent of dissolution and where it will lead
depends '...on the character of the old mode of production itself'.9 First I
want to draw attention to the other factors on which extent and direction of
'dissolution' depend, among them the availability of new social and legal
discourses, institutions and powers, and consequently an effective means of
re-defining relationships. In the colonial context western law superimposed
definitions of what could and could not be commodities. Secondly, eventually
the kinship idiom and the new 'custom' could no longer cover all of the
potential and actual property relations, and they became first mixed with, and
then overwhelmed by, a new discourse about things. In disputes over the
nature of exchange relationships, in which the new discourses were em-
ployed, basic ideas about property and its exchange were expressed. The
importance for legal history of trying to get to these moralities of exchange
is that they are the bases of the developing ideas about contract.
Social sciences have in recent years been dominated by the analysis of class
and gender conflict. Efforts to subsume the latter into the former have been
vigorous but not successful. We have yet, however, to see the emergence of
generational conflict as a serious pre-occupation of Western social theory,
though demographic and political developments may be making this more
likely. But unless and until it does the study of generational conflict in Africa
will remain what it has so far been, something of an exotic sideline. Conflict
between generations has been far too obvious not to be noticed and written
about, but it has not played a significant part in the historian's view of Africa.
The study of the growth of a customary 'family law' has been a particularly

8 Chanock, Law, Custom and Social Order, especially chs. I, 2 and I2.
9 Snyder, Capitalism and Legal Change, I 39.

3-2

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68 MARTIN CHANOCK

fruitful way into the understanding of gender conflict in Africa. In this paper
I suggest that by grafting consideration of the realm of property onto that of
'family' we can develop our understanding of the contest between gen-
erations. 10
Here too the difficulties of conceptualizing separately resources in things
and resources in people is relevant. Rights claimed by elders over the labour
of the young, and by men over that of women, and control over the formation
of marriages, have been a crucial part of generational conflict. Yet 'rights in
people' had to give way in the colonial period to a different legality. Some
of the rights which were exercised over others, among them those which the
colonial power categorized as slavery, transmuted into customary marriage
law. But another part of the rights of elders drifted into a different part of the
new legal realm, that of the law of property. The rights claimed over the
labour of dependants transmuted in the new economy into rights over the
money and goods this labour could earn. While gender conflict continued to
be played out on the field of the continually developing customary law of
marriage, generational conflict might be seen to have developed a different
code. Increasingly this game was to be played with a differently shaped ball,
the laws of property. An understanding of the intensified inter-generational
struggle for resources could be advanced by a consideration of the growth of
a 'customary law' of property.11
Assuming that I have the basic sequencing correct, the foundations of the
study of the changing customary law of property must be the shifting and
uncertain structure of the law of marriage, succession, and family property
generally. It is perhaps worth reminding ourselves of the immense difficulties
which Western legal systems, with all their analytical power and complexity
and exactness, have had, and still have, with property in families and its
relationship to property law generally. The nature of rights in property in
families, and the conflicts between concepts of family property and the rights
of individuals to acquire, control and dispose are among the most complex
and controversial in Western family law."2They have never been resolved in
any logical sense by either civil or common law systems. Common law
jurisdictions passed, it seemed, from a single estate to an individualized
separateness a century ago, but now strong currents are running against
individualization, which has been no solution, particularly for women, to the
moral and practical questions which arise out of the accumulation of
property in a family. Civil law regimes, having maintained their base of a
common estate, have continually had to deal with the questions of individual
control created by the tensions between common property inside the family
and the individualized basis of property law beyond it. Similar cross-
currents have affected the law of succession in both regimes. There is much
correspondence between the ways in which property in 'family' is treated
and how property outside is dealt with, but property relations between kin

10 For an account which links generational conflict to property relations see D. Parkin,
Palms, Wine, and Witnesses (San Francisco, I972), especially chs. 3 and 8.
11 See also Bohannan's account of the subversion of the Tiv gerontocracy in the process
of the crumbling of divisions between the different spheres of exchange: P. and L.
Bohannan, Tiv Economy (Evanston, I968).
12 See M. A. Glendon, State, Law and Family: Family Law in Transition in the United
States and Western Europe (Amsterdam, New York, I977); and The New Family and the
New Property (Toronto, I98I).

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 PROPERTY AND CUSTOMARY LAW 69
are not treated in the same manner in the culture, practice or law of either
Western or African communities. My suggestion is that a consideration of
the changing relationship between these two realms of property is a fruitful
way into an understanding of African thought about dealing with things.
As every administrator (if not every schoolboy) knew, Henry Maine had
written that 'The movement of the progressive societies has hitherto been a
movement from Status to Contract'." Much attention has been focused on
this dictum, all of it given to the starting and terminal points. But for the
historian both these constructs are chimerical, and are part of a process of
mutual definition by antithesis, and of an inherent censure of colonized
societies. What should interest us is the movement which Maine mentions
twice. The moving circumstances, ideas and patterns of behaviour between
Status and Contract have innumerable variations. Gluckman wrote that
'The law of property is intricately intertwined with the law of status',14 but
this formulation cannot be left as sufficient. We need to look at the processes
by which they disengaged from each other and to understand peoples'
strategies as this took place. In this context again we must think about the
movement of commodities between categories, and the conflicts created by
competing conceptions of things. Not only was there a lack of congruence
between African and Western ideas of what were commodities, but an
increasing absence of agreement within African societies.

Land
Colonial administrators in Africa generally approached the law relating to
land tenure as fundamental to social and economic life, and the bulk of early
research and writings about property were aimed at comprehending tenurial
systems.15 There was a common framework of understanding in the early
literature which was summed up in these words of Lugard's:
In the earliest stage the land and its produce is shared by the community as a
whole; later the produce is the property of the family or individuals by whose toil
it is won, and the control of the land is vested in the head of the family. When the
tribal stage is reached, the control passes to the chief, who allots unoccupied lands
at will, but is not justified in dispossessing any family or person who is using the
land. Later still, especially when the pressure of population has given to the land
an exchange value, the conception of proprietary rights in it emerges, and sale,
mortgage and lease of the land, apart from its user, is recognized ... These processes
of natural evolution, leading up to individual ownership, may, I believe, be traced
in every civilization known to history."6
13 H. Maine, Ancient Law. This well-known saying concludes ch. 5, p. IO0. I quote
Maine's shorthand formulation of the basic thesis of evolutionary social theory not to
signify its verity but because it was used by so many legal administrators as the lens
through which African developments were seen.
14
Quoted by Bledsoe, Women and Marriage in Kpelle Society, 5I.
1" Bohannan wrote in I968: 'The literature on land tenure is one of the largest - and
one of the poorest - in all of social and legal science', Tiv Economy, 77. This is probably
still so. For a significant exception see E. Colson, 'The impact of the colonial period on
the definition of land rights', in V. Turner (ed.), Colonialism in Africa, vol. 3: Profiles of
Change (Cambridge, 197 O. I have discussed the question of land tenure extensively in
'Paradigms, policies and property: a review of the customary law of land tenure' in
K. Mann and R. Roberts (eds.), Law in Colonial Africa (London, forthcoming).
16 F. D. Lugard, The Dual Mandate in British Tropical Africa (London, I922), 28o-i.

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70 MARTIN CHANOCK

We need not, at first, be concerned with the epistemological status of this

framework, and need only note that it dominated the colonial period, fitting
like a grid over events. Through it events were understood and guided, and
because of this certain things could happen and others could not. But we
should, perhaps, also think about the question of the extent to which this is
a logical progression; logical, at least, once Africa had become a part of the
capitalist world. In life these are difficult questions to separate. For it is
partly the belief that there was a logical progression which created it. One
might note, as an example, the problem identified in Nyasaland by the 1955
Conference on Land Tenure in East and Central Africa. Customary tenure,
they said, had been 'immobilized at the extended family stage' despite heavy
population densities 'which elsewhere might have been expected to result in
a trend towards individual ownership'." Government policy should aim at
re-mobilizing it in the logical direction. The dominant story-line of the
colonial period was from communal tenure, to individual rights of use, to
proprietary rights.
But what really happened? Rights to land, Gluckman wrote, were an
incidence of political or social status and were determined by 'meeting
obligations inherent in that status ."8 Political allegiance was not commonly
consensual and the distribution of land which sprang from political arrange-
ments should not, therefore, be seen as the expression of consensual
arrangements. The use of land was also, of course, encumbered by the rights
of chiefs to tribute and labour. The early colonial discussions over African
rights to property, particularly land, were over the extent to which property
was communal, and the extent to which individuals had use rights, and much
is still obscured by the shadow of this debate. What can be said about the
notion of communality ?19 It is clear that it is not a descriptive concept only.
In a prime sense it was a criticism: communality implied lack of ad-
vancement; an 'early' state. In another sense it had clear uses or con-
sequences. The expropriation of communal lands was far more easily
politically and legally accomplished and justified than the expropriation of
individuals rights.20 In other contexts, it developed softer and more defensive
connotations: communality implied a form of egalitarianism and justice, an
access for all to the basic means of production. As more was learnt about how
people really dealt with their property, the 'criticism' of communalism was
answered by an emphasis on the relative permanence of use rights, and this
also served as an ideological defence against expropriation. But at the same
time an ideological framework of fairness and universal access was main-
tained. Looking back, it is often not easy to see what relationship all of this
discourse - administrative, anthropological, and African - bore to actual
patterns of landholding, exclusion from use of land, and the accumulation of

17 Report of the Conference on Land Tenure in East and Central Africa (H.M.S.O.,

London, I955). See also M. Chanock, 'Agricultural change and continuity in Malawi', in
R. Palmer and N. Parsons (eds.), The Roots of Rural Poverty (London, 1979).
18 M. Gluckman, The Ideas of Barotse Jurisprudence (New Haven, I965), 71.
19 Malinowski called communal tenure 'the undying fallacy of anthropological work'.
Quoted by Bohannan, Tiv Economy, 87. The fallacy has been kept alive by the image of
African socialism contrasted to imperialist capitalism.
20 See, for example, the judgement of the Privy Council in the Special Reference as to
the Ownership of the Unalienated Land in Southern Rhodesia: In re Southern Rhodesia
A.C. I918.

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 PROPERTY AND CUSTOMARY LAW 71

goods. Clearly primitive communalism was an illusion, but then so was

egalitarianism. Scott has observed of the Asian moral economy that 'Village
egalitarianism ... claims that all should have a place, a living, not that all
should be equal'.21 It is now generally accepted that African societies were
not egalitarian: we have become accustomed to the new analyses of the
hierarchies of chiefs and commoners; old and young; men and women;
owners and slaves. We are also comfortable with the discussions of the
exploitation of labour in pre-colonial communities. But perhaps it is fair to
say that, in spite of the discarding of the general image of equality in pre-
colonial societies, an aura of egalitarianism still remains around the property
question. Innumerable accounts have assured us that there were no great
differences in standards of living, no great opportunities to accumulate
goods, and that all had access to land.22 From the African point of view,
communalism has had a certain symbolic value in the depiction of pre-
capitalist societies, and has also proved a useful and effective device in the
struggle to prevent the alienation of land to strangers and colonists. With the
commercialization of agriculture, communalism became the rallying point of
the economically weak, and was assaulted by the powerful and development-
minded. The main obstacle to development, President Banda told the
Malawian Parliament in i967, was the absence of individual title. 'No-one is
responsible for the uneconomic and wasted use of land because no-one holds
land as an individual. Land is held in common... '23
In this case the attack on traditional tenure (ideologized) and its defence
reflect clearly definable interests too banal to spell out, but what other
questions can be asked about the circumstances under which some groups
will attack and others defend traditional ideologies and arrangements
regarding tenure in land? What conflicts about land tenure were contained
by the imposition of colonial government, and how were particular patterns
of distribution frozen? It seems reasonable to suppose that the distortions
introduced into 'customary law' by the colonial regimes' monopolizing of
criminal law and punishment, for example, had their counterparts when
colonialism froze particular procedures of land distribution and patterns of
land use which had arisen from the wars of the latter part of the nineteenth
century. The 'freeing' of large numbers of slaves and serfs in Central African
societies created new demands for land, but the potential conflicts had to be
fitted into a framework of frozen custom - of supposed equal access for those
defined as group members only, and the allocation by the chiefs and headmen
created by the colonial regime. This conflict was to some extent containable
because of the relative lack of pressure on land, but in many places people
had to trade a continuing subordinate status for access to land after the
'abolition' of slavery.24 One can also see in these conflicts the potential for a
serious challenge to the dominant 'customary' picture both before and at the
same time as the commercialization of agriculture produced its range of very

21 J. Scott, The Moral Economy of the Peasant: Rebellion and Subsistence in South East
Asia (New Haven, I976), 40.
22 This image may have been finally broken by Iliffe, The African Poor, 3 et seq and

ch. 4.
23 Malawi Parliamentary Debates, i967, cited in C. Ng'ong'ola, 'The design and
implementation of customary land reforms in Central Africa', 7ournal of African Law,
xxvi (I982), II5.
24 J. A. K. Kandawire, 'Village and class in Southern Malawi', Africa, L (I980).

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72 MARTIN CHANOCK

acute conflicts about 'customary' arrangements. Much of the writing about

Africa implies that colonialism had the overall effect of imposing upon
Africans more exclusive forms of land tenure. But we are not in a position to
know whether this was so, or whether the colonial property regime defended
and prolonged turn-of-the-century patterns of access and distribution
through its validation of 'custom'. And it is by no means clear in whose
interest it was, and when, to challenge customary tenure. Early in the
colonial period former slaves who could not acquire land by inserting
themselves into the system could have forced rulers into a posture of
defensive emphasis on the nature of traditional rights. Towards the end of
the colonial period it was the rulers who were in a position to take best
advantage of state encouragement of capitalist agriculture, and consequently
it was the poorer farmers who were thrown back on a defence of 'customary'
rights.
In a situation of growing class differentiation among rural producers,
whose resource was custom? How did different classes use this resource to
portray the customary world ? Consciousness of polarization of interests was
to be submerged in nationalist politics towards the end of the colonial period,
and subsequently by the ideology of development. When one looks at the
politics of land reform there are circumstances in which custom became an
ideological resource in resistance to development based land-tenure politics,
a resource of the dominated, not the dominators. In these cases there seems
to have been a distinction between the use of custom in the field of land
tenure and its use in that of marriage. Can one say that the emerging rulers
of rural society tended to cultivate a traditionalist view of social, in particular
gender, relations, while at the same time challenging traditional land tenure,
and that the poor defended traditional tenure while on the whole resisting the
emphasis on 'customary' 'family' law? It also seems reasonable to suppose
that there would have been different attitudes to the customary regime
depending on what use was made of the land. Migrant labourers, for whom
the land was essentially a 'reserve', appear to have had a more defensive
attitude towards 'customary' tenure than did agriculturalists, for whom the
land was a productive resource. Allan wrote:
In general the main principle holds good: where money income is obtained by
labour migration the hierarchical system or some remnant of it survives and the
sale of land is resisted; but where cash cropping provides an adequate income, the
intermediate rights in land are eliminated and sale of land has become, or is in the
process of becoming, common and generally accepted practice.25
How far was the feeling that there was a growing land shortage, as a result
of white encroachment, colonial regulation of land use, and population
growth, important in the development of attitudes towards 'customary'
tenure ? The general view seems to be that increased insecurity shored up
attachment to 'customary' tenure and that, as people clung to what they
had, the development of a market in land was inhibited. Wilson found that
in conditions of scarcity among the Nyakusa the lending of land was reduced
and that inheritance in the agnatic line was strengthened.26 But one of the
aspects of pressure on land, taking the area as a whole, was the growth of cash
25 W. Allan, The African Husbandman (Edinburgh, I968), 374.
26 G. Wilson, The Land Rights of Individuals Among the Nyakusa (Manchester, I938).

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 PROPERTY AND CUSTOMARY LAW 73
cropping. Those who were doing well wanted more land and were prepared
to innovate with forms of tenure. Their response to scarcity was far from
traditionalist. Commentators noted the growth of indebtedness and arrange-
ments by which land was taken over in all but 'title', and forms of lease and
pledging began to emerge.27 Others were able to increase their holdings
within the framework of 'customary' tenure. For those moving into
capitalist agriculture, polygamy was a way of acquiring more land in a system
in which it could not be bought or leased. And the growing value of cash
cropping land could also strengthen a traditionalist response: rights to land
being presented as adhering to members of a particular group, to whose
members alone allocation could be made, potential competitive newcomers
being excluded.
We might turn to Hailey for a look at the administrative paradigm of the
high colonial period. The fundamental feature of African societies, he wrote
in I938, was that the right to land was a privilege based on membership in
a community. 'It is usual to speak of the customary land system of Africa as
collective or communal', but 'Some distinction may legitimately be drawn
between the collective idea and its expression in a system of landholding'. 28
The basic feature of the system in practice was security of tenure. This was
to some extent relative, but what insecurity there was arose from political
disputes, not from the market. It was 'not of the nature of the insecurity of
a tenant subject to a landlord under conditions of competitive rental'.
Looking ahead Hailey thought that '... the need must ... be envisaged for the
definition and recording of title, for the regulation of lease or tenancy
conditions, and for limiting the right to raise credit on land'. This was far
from a policy of driving land tenure towards proprietary and individual
rights and the market. Indeed he thought that legislating to confer title was
a mistaken land policy, even though he observed the general trend towards
a more precise demarcation of family holdings and noted that the rights of
users were becoming more exclusive. Land was beginning also to be made
over to others, but the dealings in it, he observed, were not simply
contractual or commercial: '... leases are still often given in return for a gift
or service of the traditional type, and the transaction is still dominated by the
conception that land can only be pledged, or that a pledge is always
redeemable.' (As we will see, this combination of traditional and commercial
exchange is also to be found with chattels, and with the handling of debt.)
Hailey noted that 'All discussions on the subject agree as to the value of
giving security to the occupier, and the further advantage of what is generally
termed the individualization of tenure'. 29 But he questioned whether indi-
vidualization would improve security or be economically advantageous. He
referred to the possible over-capitalization of land values; the misuses of the
power of raising credit on land; the economic mischief of subdivision and
fragmentation; and the creation of a landlord regime. He observed that what
were, in effect, landlord-tenant relationships were already being created by
overcrowding, and could occur without proprietorship, but still feared that
readily transferable proprietary title would introduce '... new and less
desirable relations between owner and tenant'.3O What, he asked, was the

See generally, for example, Lord Halley, An African Survey (London 938), 820
et seq. 28 Ibid. 830, 833-5. 29Iid. 868. 30Iid. 874.

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74 MARTIN CHANOCK

type of rural economy most desired? Was it one in which the proprietor
predominated, or one in which the cultivator with occupancy rights, which
could be passed on by succession and not by transfer, was the predominant
figure? Hailey was writing for the rulers, but the question is even more
pointed if we consider it from the point of view of what was wanted by the
ruled. Would proprietary rights have emerged more quickly without the
hesitation of the colonial power? Clearly there was division among the ruled as
to what was desirable. Hailey expressed the growing suspicion of the colonial
governments of the emerging demands for individual ownership. It was, he
wrote '... important to avoid a disturbance of social conditions by too ready
acceptance of the desire of a certain section to acquire individual rights '31
The notable confidence in the benefits of individualization, which had
marked the British approach in the early colonial period, was in the process
of being replaced by a communalist caution, in response to a section of the
population embracing economic individualism. (The tension between the
two images of a desirable society continues to be at the core of the
development debate.) The moves which Hailey suggested were limited.
Security could be given by encouraging boundary demarcation and 'in-
fluencing native tribunals to penalize trespass ,,32 Most importantly, Hailey
knew that some form of survey was the essential pre-condition to the
definition of any form of title. Legal security against attack or disturbance,
he wrote, could only be guaranteed by 'registration' of title, which would
have to be preceded by survey.33 All this brings us round to the essential
point. One may observe moves in the economy, and in the way people think
about, use, and deal with land, but without the legal regime of the state, a
shift towards proprietary title could not take place.34 But even where the state
did not move unequivocally towards the establishment of proprietary title,
its bureaucratic logic tended to iron out local variations in conceptions of
title. Customary conceptions, according to which different types of rights
attached to different types of land, and to different genders, withered in the
bureaucratic winds.

Old property
With this in mind we can consider the question of ownership of food, to
which different considerations applied. It was not a core matter of ad-
ministrative interest like slaves or land. Audrey Richards, for example,
attempted to analyse the 'complex rules' governing its ownership among the
Bemba.35 The fundamental stress in her account is on scarcity, and on the
31 Ibid. 875. 32 Ibid. 876.

3 Ibid. 877. The administrative resources of the colonial regimes in Africa were
generally not up to the kind of survey required to give 'indefeasible' title. The model
which Hailey had in mind was the Indian system in which presumptive title, which could
be challenged in court, was recorded.
34 See Colson, 'The impact of the colonial period'; G. Kitching, Class and Economic
Change in Kenya (New Haven, I980) and Chanock, Law, Custom and Social Order, 230
et seq.
3 Audrey Richards, Land, Labour and Diet in Northern Rhodesia (London, I939), chs.
7-9. See, too, the account of the 'models and metaphors' of the Bemba economy in
S. Gudeman, Economics as Culture (London, I986), ch. 5, for a different affirmation of
' respect' as a basic metaphor of Bemba exchange relations.

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 PROPERTY AND CUSTOMARY LAW 75
immense jealousy and great secrecy between gender and generation within
the same family, let alone with regard to outsiders. 'Mutual suspicion'
between the husband's relatives and the wife's, and a 'good deal of tension'
about the sharing of food in everyday life, coloured the exchange, and
emerging sale, of food. To add to this context of tension and jealousy
regarding ownership and exchange, there were the rights exercised by elders
over the property of juniors, and by men over women. Much of the idea of
authority, she said, was associated with the right to levy dues on the property
and labour of others. In addition to the existing stresses, these obligations
were bearing the strain of possible substitution by money. The question of
ownership of food, for example, was acquiring a new importance as there
were now opportunities to make money by selling it. Where a husband may
not have exercised any 'rights' to property in the form of food before, and
had been obliged to leave control of its use to his wife, he now assumed that
money from the sale of food was his alone, and both husbands and their
relatives took food to sell. Here the possibility of an outside market was
creating a proprietary right which had not existed before. But the de-
velopment of 'rights' was not so clear-cut when we come to dealings between
kin. She writes,
... the transition to a sale from a gift from a kinsman or a subject is a very gradual
one. People buying from relatives pay less than the normal rate, and usually add
some service to the transaction. Chiefs buying from subjects ... pay nominal
sums ... against the background of the complicated interchange of services in which
the relationship of chief and commoner consists.36
Furthermore, buyers and sellers did not necessarily perceive each other as
notional equals in the market place. Colson observes the implications of
power involved in situations in which trade in food was a departure from the
norm. She writes,
In transactions between the Tonga, it is left to the buyer who desires a commodity
to take the initiative. He is the buyer and therefore the supplicant. The one who
meets his needs is the seller and is in a position to control the terms of the
exchange. If there is a permanent association between the two, the seller is
expected to be merciful. If there is none he may extract what he can.37
Exploitation of market position is by no means unique to African exchange,
but the perception of the buyer as supplicant has interesting implications for
contractual disputing, rules and equity. Other problems in this area involve
the shopkeeper's stock and the demands of kin, and of hospitality, and the
claims made on the earnings of migrants. This is all quintessentially Maine's
world of movement in which we must try to grasp the changes in ideas about
the relationship between people and property.
Maine thought that there was a steady progression towards several
property and a separation of the law of persons from the law of things. As I
have said, this is not a necessary progression, but it is one full of interest in
the African context of incorporation into the capitalist economy. Gluckman

36 Ibid. 220-I.

3 E. Colson, 'Trade and wealth among the Tonga', in P. Bohannan and G. Dalton
(eds.), Markets in Africa (Evanston, I962), 6I5.

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76 MARTIN CHANOCK

wrote that property in Lozi law 'does not consist of rights over things
themselves ... but of claims on persons in respect of things '.38 This is true in
any jurisprudence, but without a state, the duties owed by other persons are
the only 'remedy', and without remedies, as lawyers know, there can be no
rights. Elisabeth Colson suggests that the Tonga would formulate their
rights in cattle as follows:
I own cattle. I belong to a kinship group. Therefore my kinsmen have the right to
demand my assistance. My rights over my cattle are subject to the obligation which
I have to assist my kinsmen.39
Whatever rights there were depended on kin support and recognition.
Proprietary rights could not, therefore, be asserted against kin. Even where
an outside authority is established it takes time before people will use this
resource because its use would involve a reconceptualization of the re-
lationship between kin, and between 'owner' and cattle. Prior to the
establishment of the dominance of the legal regime of the colonial state,
ownership of cattle among the Ila was, it has been said: '... a variable mixture
of individual and corporate claims of control. Junior males, women and
children ... assert varying degrees of discretion in the distribution and
utilisation of cattle resources'.40 The new economy fostered increased sales
of cattle, and the laws of the new state meant that Ila definitions of rights
were increasingly '... tempered by the requirements of a superordinate
authority '.41 Obligations between persons were translated into rights in
things as the 'remedy' changed, as the state rather than the community
became the guarantor, and as the market gave a meaningful rationale for the
institutional framework of the new rights to be used. Increased inter-
generational disputing over property marked the shift towards the increased
exercise of 'rights' over cattle by the younger heads of household.
These predicaments were created by the emergence of a different sort of
'rights' in the kinds of property previously subject to the customary legal
regime, like food and cattle, which were now subject to dealings between
strangers as well as between kin. In addition there were the complex
problems caused by dealings between kin in new forms of property. I have
argued before that as the need for exactness regarding property transactions
grows, so does the need for explicitness and legalization in the field of
kinship, especially matrimonial transactions.4' But the (relative) flood of new
property cannot be easily incorporated into the framework of kin/property
transactions. Money, household goods, clothes, agricultural equipment,
furniture - all these were more easily separable from the claims of kin than
food or cattle. And with regard to these also bitter disputes took place, often
regarding succession. The absence, in many cases, of anything like a formal
'system' of succession, led to what has been nicely called 'competitive panic
situations', as claims to goods were disputed.43 In general, it is the rising tide
38 Gluckman, Ideas, I62-3-
3 E. Colson, The Plateau Tonga of Northern Rhodesia: Social and Religious Studies
(Manchester, I962), 125.
40 C. R. Cutshall, 'Culprits, culpability and crime: stocktheft among the Ila of
Zambia', African Studies Review, xxv (i982), 4. 41 Ibid. 6.
42 Chanock, Law, Custom and Social Order, chs. 7-9.
43 C. R. Cutshall, 'Culprits, culpability and crime', 13.

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 PROPERTY AND CUSTOMARY LAW 77
of new property, and its protection by the new courts, that makes it an
advantage to repudiate the claims of others, as there is a decreasing need to
make 'claims on persons in respect of things'.

Disputing and law

When the colonial state provided a machinery for the processing of property
claims, and incorporated the customary law into its own sphere, the result
was that people took advantage of the opportunity to litigate with kin about
property in the state's courts. I have chosen here as an illustrative source the
records of the Native High Court in Natal.44 There are basic contextual
features peculiar to Natal: a greater degree of white presence, and integration
into a white economy; a far more aggressive state, both administratively and
legally; and a written codification of the customary law. Yet many of the
cases concern situations which occur further north, and they are of great
interest as illustrations of engagements at the border of two legal systems. In
Central Africa the situation was regulated by 'custom' alone. There elders
asserted the right to control the earnings of younger men, and in return
young men were 'assisted' in the formation of their marriages. Precisely
what was involved was left vague, and disputes, though they were often
deeply divisive, and connected with charges of witchcraft, did not reach the
state's courts. Even if the framework of the formal law would have defended
the rights of the young men to cash, or goods acquired through their work
in the cash sector, the realities of life may have been different. Landeg White
gives an example of songs sung in Malawi:
My bicycle
My bicycle -e-e-
My bicycle is taken by my brother-in-law
When I ask for it he says I am a billy goat
Though I am a billy goat
My bicycle
I want it back.
The billy goat, White writes, is the husband, who is unwilling to see goods
bought with money earned by wage labour become his in-law's property.
Another song laments the fate of iron roofing bought with earnings and lost
to the wife's family:
I am crying for my iron sheets
My iron sheets hurt me
Father...
44 These reports, which were published along with the law reports of other South
African jurisdictions, give a better record of disputes than the law reports of superior
courts in the British colonies to the north, the judgements being long and discursive.
They reflect of course only those cases which were pursued through the state's system to
the appellate level. The series is cited in the text as N.A.C., together with the date of the
case report.
4 Landeg White, Magomero: Portrait of an African Village (Cambridge, 1987),
229-30, 245. Control of money was influenced by more than one set of precepts.
Bohannan wrote of the Tiv that money belonged to the person who earned it but that
'rules of giving and receiving...cut across this principle ... (A)s part of the reciprocal
rights and duties of compound life, the father or compound head sometimes has an

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78 MARTIN CHANOCK

In Natal cases arising from these circumstances did come before the
courts, and the reports give us an opportunity to see the attempts of young
men to control their earnings. Here the situation was the subject of
legislation, the Natal Code of Native Law, which purported to codify the
customary law of Natal.46 Section I38 of the Code provided that a kraal head
was entitled to receive the earnings of all the members, while section I39
provided for his corresponding responsibility for marriage payments. This
codification of custom was, in an increasingly monetized economy, po-
tentially a most powerful instrument for channelling new wealth into the
hands of kraal heads. But it did not prevent young men from attempting to
control and define their assets and entitlements. We might consider the case
of Mona v Mzanywa N.A.C. 12 June I9OI. In this dispute between two
step-brothers, one of whom was a kraal head, eight years of wages had been
handed over. The action was not for a return of the monies taken but arose
out of a dispute as to whether the responsibility for bridewealth had been
properly discharged. While the code obliged the Court to support the kraal
head's right to receive the money, early misgivings were expressed by
Boshoff J. 'It is a very serious thing,' he remarked 'to deprive a young man
of all his earnings.' Another example is to be found in the case of Mbumane
v Nkulunkundhilini N.A.C. 2 October 1902. This was a dispute between
two brothers, which had first been heard in the Chief's court, but appeals had
brought it to the State's courts, first to the magistrate and finally to the
Appeal Court. Payment of wages had been made by a younger brother to an
elder over a I4-year period, and assistance with bridewealth had been given.
Yet disputes had arisen over the ownership of the increase of cattle acquired
with the younger man's earnings, and also over the use to which these
earnings could legitimately be put. Could the elder brother acquire his own
wife through using the earnings of the younger? The judgement phil-
osophizes on the principles of African law supposedly embodied in the Code
along lines which would have commended the Court to many modern
anthropologists. The judges referred to the 'mutuality of interest' which
required that all members of a kraal should combine for the common good,
and the 'reciprocity of obligation' involved, and tried to turn away from
legalism, saying that the case was 'connected with the observance of a custom
rather than a rule of law'. Even though the customary law had been codified,
the judges hesitated to legalize custom. But it was the litigants whose actions
pressed for legal definition. As in the earlier case the Court supported the
rights of the elder brother under section 138, though once again Boshoff J.
was very uneasy. The Court, he said, 'cannot too jealously guard and protect
the interests of the inmate of a kraal', especially with regard to 'the right
which a kraal head has in depriving an inmate of his kraal of his own private
earnings'. The Code did not regard these earnings as 'private', but those
who earned them were beginning to do so and continued with attempts to
persuade the Native Court system to do so also.

overriding right to some of it. Tiv say that during the hungry months a compound head
should control the money; they equate this with the fact that he should control the food
in the compound when it is very short.' Tiv Economy, 223-4.
4 For a full discussion of the formation of the Code, see D. Welsh, The Roots of
Segregation: Native Policy in Natal I845-I9IO (Cape Town, 197I), especially ch. 9.

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 PROPERTY AND CUSTOMARY LAW 79
Courts dealt with other inter-generational conflicts over the control of
property. The basis of the customary system, as enshrined in the State's
Code, was that sons' rights to property were subordinate to their fathers'.
Before we can consider conflicts between them we must think about the
outside pressures on this system in an economy in which both sons and
fathers were increasingly engaged in property dealings with others. In the
customary law there was a notional single estate. Did this mean that the
assets of the father could be seized to pay the debts owed by the son to a third
party ? Could a court attach the son's assets or wages to meet the debts of the
father? If the father died insolvent could the assets of the son be taken by the
estate's creditors ? These questions, which originate 'outside' the system of
kin property, place on it pressures for distinctions to be made, in addition to
the pressures arising from 'inside' the system. Indeed it appears that
questions of judicial attachment, arising from debts owed to outsiders, often
white traders, were very important in the trend towards legal division of the
common estate. In these cases it is the courts which seek and impose an exact
separation which is not matched in the conceptions of the various possible
claimants to the goods.
Nonetheless it was not only 'outside' pressures which called the common
estate into question, and many claims were made by sons for control of their
share of the estate before the death of their father (e.g. Mgweba v Mgweba
N.A.C. i6 September 1903). In Notagaza v Teyisa N.A.C. io March 1904
one son attempted, during the lifetime of his father, to get a declaration of his
rights as an heir to certain cattle over and above another son. The Court
refused. In Ronana v Gqomu N.A.C. 4 July 1904 the dispute concerned the
gift of a heifer made from father to son and subsequently taken back. The
Court supported the father's right to revoke his gift. The issues of the
separation of the property of father and son were further canvassed in Bande
v Mtshwetshwe N.A.C. 21 December 1905. Here a son's cattle, bought with
his own earnings, were seized in payment of a father's debt. The law
appeared to be clear, that all property within a kraal was under the control
of the father and hence liable to be attached to meet his debts. But the son's
attorney pointed out that section 9I of the Code, reflecting the needs of the
' outside' economy, provided that married males and widowers were capable
of suing and being sued in respect of their own private transactions.
Logically, therefore, if a man could be sued for debt, he must have an estate
from which to pay. The alternative was that a married man's earnings could
all be taken by his father, while at the same time the son remained liable for
payment of debts from assets over which he could not exercise control. These
circumstances raised the crucial questions as to how long the colonial state's
legal order could continue to sanction the logic of a 'family estate' under the
control of an all-powerful paterfamilias.
I pointed out in Law, Custom and Social Order that the development of an
area of customary law depended on a correspondingly appropriate image
being available in the legal repertoire of the colonial rulers.47 With this in
mind something can be said in this context about women's rights to own
property. Colonial governments in this region generally accepted that
women, as perpetual minors, could not independently own property, and
" Chanock, Law, Custom and Social Order, ch. I2.

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8o MARTIN CHANOCK

there was no vigorous dissent on this point from African men. Thinking
about this point involves thinking both about property relations in African
societies and about the construction of law by the mutual actions of rulers
and ruled. Once again we might turn to the reports of the Natal Court and
consider the case of Macanbangwana v Nompola (duly assisted by her guardian
Gezehlale) N.A.C. 23 October 1902. In this case a son and heir claimed the
property of one of his father's widows, property which she had not received
from the dead man but had acquired entirely by her own exertions. The
Court upheld his claim. Much thought was given in the judgement to the
development of ancient systems of patriarchy and the stage in this de-
velopment which Africans could be said to have reached. The nature of the
position of women as minors in the customary system outlined by the Court
was not very different from that of a married white woman under the Roman-
Dutch law operative in Natal. The idea that women should not own property
in their own right did not seem bizarre to the judges. Married women in
Britain had not, until I882, and in South Africa still did not, if married in
community of property. So a system of male control of property was
perceived to be quite appropriate for Africans, corresponding, indeed, to a
perception of where they were on the developmental scale of things. Even so
the Court was unhappy about defining rights within a customary system,
again almost perceiving the nature of the changes it was fostering. Africans,
it said, were 'well aware of customs affecting and regulating their domestic
life... Harmony is presumed to exist ... It is usual and customary to consult
the female heads of houses...'. And once again concern was expressed about
not being able to support the 'private property' of the losing litigant against
the property regime enshrined in the codified 'Native Law'.
Other issues which arise elsewhere in Africa can be illustrated from the
Natal reports, even allowing for the formalism of the Natal system. The
difficulties of separating rights in people from other resources came up in
Silwane v Bobotshe N.A.C. ii February 1903. Here one party claimed
rights over a young girl in order to receive her bridewealth cattle, which had
been promised by her father to satisfy a debt owing. The court would not
sustain the claim of the appellant's attorney that, according to 'native law',
the girl could be transferred 'because there were cattle in that girl'. Boshoff
J. remarked 'You want to attach a servitude to a human being'. In Nsiwana
v Vovo N.A.C. 12 June 1903 a girl had been pledged, in satisfaction of a
debt, for her bridewealth potential. The transaction had been entered in the
Magistrate's register as '22 head (io being a girl)'. The Appeal Court would
not sanction this either.
What was ultimately allowed to develop as 'custom' and what was not
depended on what the State would accommodate. The colonial state would
not allow rights in people to be treated as negotiable in the same way as other
forms of proprietary right. Pledging fell away. So did the so-called 'in-
heritance' of widows, which the British colonial courts in Central Africa
refused to countenance.48 The indivisible estate of elders and their dependent
sons was perceived to be inappropriate, and individualization was allowed to
develop. But the total control of the property of women by men was not
perceived to be inappropriate, and it developed strength as a recognized part
of 'customary law'. The notion of women as minors and consequent male

48 Ibid. chs. io and ii.

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 PROPERTY AND CUSTOMARY LAW 8i
control of a common estate could fit into the Western view of commodity
relations and could be given legal effect. We might think about the effect that
this had on the continued development of so-called sex-linked property
regimes.49 The colonial state's endorsement of a male-dominated property
regime created the need to retain and strengthen the notion of special
categories of property which did not fall into male hands.
But these special categories, when confronted by the logic of the new
economy with its increasingly undifferentiated attitude towards commodi-
ties, could only shrink in importance in relation to available property as a
whole. Whatever new 'customary' rights women could evolve could not
match those rights appropriated by men, particularly husbands. Women did
not share in the ownership of the property which accumulated (in those
classes above the level of survival) in the new economy. They did not
(legally) control it; nor necessarily benefit from it during the life of a
marriage; nor did they succeed to it when a marriage ended. Marriage was
not conceived of as creating a joint estate. Widows (and, less importantly,
widowers) found themselves stripped of property by their deceased spouses'
relatives. A common estate remained less evident in African marital property
regimes than in Western ones, reversing the images of individualist West and
communalist Africa. The development of testamentary succession, which
might in a small way have addressed this problem, was very slow, though
legally provided for. But a law of succession, as has been pointed out,50 does
not simply concern the devolution of property on death. It can also limit the
ways in which property can be dealt with while the owners are living. Not
only did the husband's relatives strip his widow on his death, but a most
important part of the property disputes which took place during the colonial
period in Central Africa were bitter quarrels concerning the objections of
lineages to the sharing of property and the giving of gifts between spouses.51
The nucleation of family, even without overt female proprietary rights, had
proprietary consequences which were angrily resented.

New property
One of the areas about which relatively little is known is the development of
customary law covering the growing number of commercial transactions
between strangers, especially in the towns and cities, and between kin.
Perhaps if we are looking for ways of understanding ideas, and consequently
law, about property, we need to add to our account of the combination of
kin/market exchanges in the rural world an attempt to comprehend the
urban situation where people dealt with each other in a money economy.
How did people behave as they engaged actively with the substance and legal
conceptions of modern commerce, like contract, ownership, and debt, when
they were unencumbered by the obligations of kinship? The focus of our
question changes. It no longer starts with the ways in which people related
to each other and, belonging to small communities, dealt with the possibilities
of impersonal exchange but begins instead with stranger/players in an
emerging capitalist order, juggling new rules and old concepts in 'contract'
4 See J. Guyer, 'Household and community in African studies', African Studies
Review, XXIV (I98I), I14.
50 See
F. von Benda-Beckman, Property in Social Continuity (The Hague, 1979), 50.
5
See Chanock, Law, Custom and Social Order.

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82 MARTIN CHANOCK

situations. Their behaviour might indeed throw considerable light on the

nature of traditional concepts of equity, and on the moral economy. Are there
indigenous concepts of what is fair which soften what Thurman Arnold
called the 'drab cruelties' of business practice, or should we remember
instead the Kikuyu proverb 'In business one has no mother and father' ?52
This proverb itself appears to underline a contrast between the worlds of
commercial dealings and kinship and to endorse different behaviours as
appropriate to each. Writing about money, Bloch has correctly urged caution
about the notion that it is always an acid eroding the moral world of kin-
based societies and the automatic contrasting of a moral pre-monetary state
with a 'nightmarish view of commerce'. As he points out '...the image of
commerce and its opposite are mutually self-defining and therefore con-
temporary'.53 We must ask just when and how these contrasting images were
formulated and found their way into the proverbs. How far are they the
images which run through African disputes about things, and how far are
they imposed afterwards by outsiders with a solidarity/dissolution di-
chotomy in mind? The spirits of sociability and of calculation existed in
both pre-colonial and colonial economies. How do new contexts affect their
balance, and the ways in which they can be invoked in disputes about
property ?
The colonial governments in East and Central Africa treated Africans as
children in the ways of commerce. Governments applied themselves to what
they saw to be the main problems: protecting Africans from Asian ex-
ploitation, and controlling African access to credit.54 Market behaviour was
thought of as unnatural and inappropriate for Africans, and consequently
there was no image of a usable commercial customary law. Customary ideas
were thought of as consisting of a collection of childish and unworkable
irrationalities such as collective responsibility for debt; inheritability of
liabilities; and the absence of a notion of prescription. Promises, it was said,
were typically not kept; disputes never finalized. As markets developed in the
colonial period they were often tightly controlled and policed. Trading in
basic rural products was often illegal; while regulation of stalls and licences
created a situation in which the worlds of trading and policing were a part of

52 Quoted by J. Iliffe, The Emergence of African Capitalism (London, I983), 70, from
T. Arnold, The Symbols of Government (New Haven, 1935), 34.
53 M. Bloch, 'The symbolism of money in Imerina', in J. Parry and M. Bloch (eds.),
Money and the Morality of Exchange (Cambridge, I989), 170. Appadurai writes 'Gifts,
and the spirit of reciprocity, sociability, and spontaneity in which they are typically
exchanged, usually are starkly opposed to the profit-oriented, self-centered, and calculated
spirit that fires the circulation of commodities. Further, where gifts link things to persons
and embed the flow of things in the flow of social relations, commodities are held to
represent the drive - largely free of moral or cultural constraints - of goods for one
another, a drive mediated by money and not by sociality', The Social Life of Things,
11-12.
5' This did not limit African debt. It meant that it had to be found on less favourable

terms, and under conditions in which it was not necessarily legally recoverable, becoming
part, instead, of a network of continuing obligations. The extension of credit may have
been frequently tied to existing obligations and kin networks. See for example E. W.
Nafziger, African Capitalism: A Case Study in Nigerian Entrepreneurship (Stanford,
1977), 209, where he notes the extension of credit to respectable Ibo families on the basis
of familial guarantees against default. Socially backed credit relations were slow to give
way to credit based on property; Status remained a part of Contract.

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 PROPERTY AND CUSTOMARY LAW 83
the same experience.55 Governments were often hostile to African traders:
marginal rural migrants, struggling to make a living, were characterized
typically as being there because of 'the attraction of a leisurely way of life',
and engaged in '...paid loafing ... at the expense of the consumer'.56
In these circumstances what sorts of ideas did develop in the market place?
How, for example, were the differences in rank and the ever-present question
of respect dealt with in the market place? Respect, that vital ingredient in
family disputes, was one of the primary metaphors of property disputing.
African rural societies were built upon an absence of civil or juristic equality.
Status hierarchies involved proprietary rights, the rights to demand labour
and goods, and reverse rights to gifts and subsistence. Access to material
goods depended on patronage within hierarchies - political, generational and
gender. Respect as an ideology underpinned not only ideas about status but
the material order itself. Money need not dissolve this transactional order but
could reinforce its values. Audrey Richards noted changes in the rural areas
once the service of others, claimed through respect, could be bought by
money. 'Money is respect' she was told. Access to property other than
,57

through existing hierarchies, and the existence of 'rights' not dependent on

hierarchies, had potentially revolutionary implications.58 How, we must ask,
is respect affected by the far more active urban market places, and how do the
changes affect the way that people dealt with monetary obligations? Property
which does not depend upon social resources and which has been in-
dependently acquired need not be dealt with according to obligations to
hierarchies and kin. Parkin noted a cleavage over time between those who
relied on acquiring property through kin (for example by inheritance), and
those who increasingly accumulated property through contracts with
strangers.59 Different types of property could, therefore, be subject to
different norms. But when, and how far, does 'traditionally' acquired
property come to be dealt with by the same standards as things contractually
acquired ?
These questions cannot be dealt with outside of the framework of the
emergence of new classes, and of class conflict, in twentieth-century Africa,
and we might need, in the urban context especially, to explore the developing
class perceptions of property rights. But we also need to remind ourselves
that the ideology of emerging classes in colonial Africa did not correspond to
that of classes similarly categorized in Europe. In regard to the general
'culture' of property, an African proletarian does not think like an English
one, nor African petit-bourgeoisies like their French counterparts. Along
with their differences, the emerging classes of Africa had a common set of
5 For a fuller account see M. L. Chanock, 'The political economy of independent
agriculture in colonial Malawi: the Great War to the Great Depression ', J7ournal of Social
Science, 1(I972), and B. Jules-Rosette, Symbols of Change: Urban Transition in a Zambian
Community (Norwood, New Jersey, I98I), ch. 4. On the general problems facing traders
in towns in relation to licensing, credit, and the host of regulations governing trade see R.
Sandbrook, The Politics of Basic Needs (London, I982).
56 The phrases are from a Northern Rhodesian Government Report of 1947. Quoted
in M. Miracle, 'African markets and trade on the copperbelt', in Bohannan and Dalton
(eds.), Markets in Africa, 714. 5 Richards, Land, Labour and Diet, 220.
58 A woman acquiring property in an urban area was a most revolutionary figure. Janet
Bujra quotes an ex-prostitute: 'My home is my husband.' 'Women " Entrepreneurs " of
Early Nairobi', Canadian Journal of African Studies, Ix (197S), 224.
5 Parkin, Palms, Wine and Witnesses, 29.

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84 MARTIN CHANOCK

problems in formulating ideological responses to the new capitalist realities:

the basic problem being that of separating proper dealings with kin and the
'freedom' of the market. In the experience of all the market was not 'free'.
Virtually all were poor. Wage labour emerged under forced and oppressive
conditions. Money was scarce. The prices of goods bought rose rapidly while
the prices of goods produced tended mysteriously to fall. Non-African
communities dominated the markets in towns and cities and controlled
access to licences and to credit. We know from the way in which responses
to these circumstances were articulated politically that people linked the
power to rule with the nature of the market. My purpose here is to enquire
what the effect of this general experience of the 'market economy' was on the
way people thought about rights and duties in relation to property. People
may well have been inhibited in their readiness to move from Status to
Contract under such conditions. It made far more sense to extend Status into
the new world than to abandon it for a different set of rights and freedoms.
The extent of market relations was not a measure of the atrophy of a 'moral
economy'. Buyers and sellers could still be constrained by obligations.
Hyden suggests that '...the family is the basic work unit and commerce is
undertaken in the context of familial principles of organization and ori-
entation'.fo One should, perhaps, see that those individuals who were able to
make good economically under these circumstances operated within a
cultural system in which they strove both to 'honour' and to exploit the
obligations of Status, as well as to use the tie-cutting logic of Contract. The
first was often the more workable strategy. Scott's concept of 'forced
generosity' is most suggestive in this context.6" This is relevant not just
because it is the framework in which ideas about property develop, but
because it is vital in explaining people's behaviour in the legal sphere. When
is action taken over debts due, over wages owing, over goods not paid for?
What circle of relationships inhibits the assertion of rights? Is it shrinking or
growing ?
'Management of debt', Jane Guyer writes, 'is a particularly neglected
aspect of the influence of law. '62 Disputes about debt which build up over
very long periods are a feature of the social relations of this period. The Natal
cases show that, where opportunity permitted, people were prepared to take
these longstanding disputes over property matters with close kin to the
State's courts. Many of the 'debts' were a combination of social, political,
and economic obligations. Some were created and preserved in order to
cement 'relationships of obligation and dependency', the recipients of
'loans' being thereafter primarily clients rather than debtors.63 These
relationships were bound to come under considerable strain in an in-
creasingly monetized economy. Iliffe reminds us of the context in which
'money itself, the need to pay tax, and economic fluctuations emanating from
the world market all bred new types of rural poverty'. 'Cash hunger' and the
search for money permeated rural life and created the structure of borrowing
60 Hyden, Beyond Ujamaa, 17. 61 Scott, The Moral Economy, 3.
62 Guyer, 'Household and community', 107.
6 See the analysis in Bledsoe, Women and Marriage, 55-7. Hyden notes that cash is
invested in maintaining position in a kinship community to create potential claims, and
that economic actions were embedded in a dispersion of favours and in patron-client
relations. Beyond Ujamaa, I8-I9.

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 PROPERTY AND CUSTOMARY LAW 85
and debt.64 Under what circumstances could debts of this sort be recalled, or
discharged? Resort was sometimes had to pawnship, but colonial legal
systems refused to recognize this blurring of boundaries between personal
and proprietal rights.65 How was the 'dissolving influence' experienced?
And what of the largest debt? A Tonga evangelist told Junod: 'These lobola
debts are ropes which start from the neck of one, and go to the neck of the
other. Though your father dies this rope still ties you, you are kept tied to
your father's bones by this accursed rope. Others will get drawn into its coils
and the strands become entangled round you. Cut it and be free. '66 Kuper
prefers to see the binding debts as signifying a durable series of social
relationships, but it is as well to appreciate the power of the impulse to be
free.67
We do not know the extent to which people managed their debt re-
lationships with strangers differently from those with kin. Crucial questions
are whether different considerations regarding debt applied in a social arena
which is not life term and the extent to which these considerations affected
the life term arena. Ghai noted in the early I96os in Kenya that 'Debts
constitute the most important contractual transactions to come before the
Courts', about one quarter of all civil cases.68 Yet he found distinct problems
with the customary law in this regard. Damages for breach of contract were
not awarded, or, indeed, asked for. There was thus 'no great deterrent'
against breach, and African commerce was being ruined by unpaid debts and
broken partnerships. Overall there was a 'certain lack of finality about
transactions'. 69 It seems that part of what is being described is the general
problem of adjusting notions applicable to dealing with ongoing relationships
to dealings with strangers. This did create difficulties, yet I would suggest
that the more difficult problems were those in the reverse situations, where
ideas appropriate to dealing with strangers were increasingly being applied
to kin. Parkin notes that when there was an increase in economic transactions
between non-kin the claims of kinship were required less as sanction for
contracts, and there was a 'shift in contractual idiom and ideal'. There were,
indeed, disadvantages in dealing with agnates and affines because 'the idiom
of kinship and affinity blunts the negotiable edge in contractual relations'. In
their development of the 'idioms of exchange relations' people were aware of
the 'capitalist spirit' and its threat to the redistributional ethos. They
'... veer to the defence of one principle over the other, according to their
circumstantial interests'. 70 Yet while there are many ideological disputing
65
64 Iliffe, The African Poor, 154. Ibid.
66
Quoted in A. Kuper, Wives for Cattle: Bridewealth and Marriage in Southern Africa
(London, I982), II2.
67
An essay about property relations which does not consider that major property
transaction, the payment of bridewealth, runs the risk of distorting its account of change
in the realm of property. The huge inflation in payments had important effects on
property relations. Bohannan described how general purpose money had been a factor in
destroying the separate spheres of exchange. 'Rights in women', he wrote 'have entered
the market and since the supply is finite and the demand infinite, the price of women has
become inflated'; Tiv Economy, 228, 249. But a consideration of bridewealth needs a
separate paper.
68 Y. Ghai, 'Customary contracts and transactions in Kenya', in M. Gluckman (ed.),
Ideas and Procedures in African Customary Law (London, I969), 338. 69 Ibid. 343-4.
70 Parkin, Palms, Wine and Witnesses,
57-9, 62. Italics in original.

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86 MARTIN CHANOCK

resources to draw upon, and significant variations depending on cir-

cumstances and on types of property, I suggest that there is a dominant
direction of change. Von Benda-Beckman notes in his Indonesian study 'a
process of ever increasing individual autonomy in property affairs and of
concentrating property and inheritance within the conjugal family'. 71 This
process involves a narrowing of the circles of obligation, and a limiting of the
acknowledgement of the legitimacy of claims on family property. It is of
great importance for understanding changing ideas about the social order.
The processes in Africa can be characterized in terms of Benda-Beckman's
Indonesian formula, and this is where we must start our understanding of the
experience of changing property relations. It is the cause of the 'peculiar
sharpness' of property disputation. A wide range of ideological formulations
contributed to the conceptualizing. They ranged from the new Christian
ethic with its concepts of individual autonomy, rights, and duties, through to
a developing neo-traditionalism emphasizing the generosities of the village
'moral economy', as well as its fears and jealousies, expressed in the
intensifying witchcraft accusations. Megan Vaughan has written of how, in
the worst of crises, famine, units of consumption shrank, and there was a
'narrowing of obligations '.72 If we reflect on this response as one not simply
to famine, but to economic change as a whole, we can get closer to under-
standing the idioms which interpreted the experiences of enrichment and
impoverishment.
These experiences were sharpened further by the lack of coherence about
what was a commodity and what was not, what could be legitimately
exchanged and with whom. Many of the things that were the subjects of
dispute were moving in and out of commodity status: 'such moves may be
slow or fast, reversible or terminal, normative or deviant'. in disputes over
the status of things ... 'the degree of value coherence may be highly variable
from situation to situation, from commodity to commodity'. 7 Dealings with
strangers could provide the opportunity for the commoditization, and
Appadurai notes 'the special sharp case' of things 'placed into a commodity
state though originally specifically protected from it'. Property disputes dealt
not simply with conflicts about ownership and value but with contention
about the commodity status of things in particular circumstances. This
coloured the nature of many of the disputes and brought them back into the
'moral' field. Again to use Appadurai's observation: '...the diversion of
commodities from their customary paths always carries a risky and morally
ambiguous aura ... the spirit of entrepreneurship and that of moral taint enter
the picture simultaneously.' 74 Bohannan, who dealt with the question of
commoditization in his observations of the Tiv's separate spheres of
exchange,75 noted that they were 'arranged in a hierarchy on the basis of
moral values' and that conversions between spheres 'have a strong moral
quality in their rationalization '76 Disputes moved along the frontiers
between commodity and non-commodity status and between spheres of

71 Von Benda-Beckman, Property in Social Continuity, 6.

72 M. Vaughan, The Story of an African Famine (Cambridge, i987), ch. 5, especially
124, 147. 7 Appadurai, The Social Life of Things, 13, I5. 74 Ibid. I6, 27.
" He categorized three: one of ordinary commodities; one of prestige goods (slaves,
offices, cattle); and one of rights in persons (wives, children). Tiv Economy, 227 et seq.
76
Ibid. 233-4.

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 PROPERTY AND CUSTOMARY LAW 87
exchange. And while African economic cultures were affected by the
'explosion of commoditization',77 it was the shifting frontiers which appear
to have dragged property disputes back into the moralities of relationships.
We must conclude, therefore, with thinking not about rights in things but
about relations between persons. (It was clear to the people involved, at least,
that commodity relations were social relations.) I have written about the
legalization of discourse and behaviour in the area of marriage, and how the
complex and fluctuating obligations in marriage systems were shaped for
conflictual purposes into 'rights .7' This shaping also takes place in respect
of things. Colonial legal processes endorsed the logic of Contract rather than
that of Status, courts and governments increasingly spoke the language of
Contract and offered increasing legal protection to proprietary claims in
defiance of the expectations of kin.79 But the effects were not unequivocal.
Hailey urged that the development of law in this area could not be allowed
to proceed without guidance, and the State was most influential in developing
ways of dealing with property disputes. In constructing ways of dealing with
property relationships in the new economy Africans were confined by the
existence of the common law of property of the colonising power and had to
proceed in dialogue with it.80 Most importantly, a transition from Status to
Contract could not be accomplished as long as the material basis of life,
access to land, depended on Status. It is this contradiction that remains the
basis of the continuing importance of the customary law. Vital disputes about
rights in land remained dependent on establishing the relationships on which
these rights were based. Status questions dominated land law. It may be, to
raise again the original question of sequencing, that land is the last of the
categories of property to become subject to the regime of Contract. The
persistence of the idiom of Status in disputes about land also adds to the
' peculiar sharpness ', a sharpness honed by the development of circumstances
in which there was no further land to be distributed, in which. Status
remained the idiom of legitimate claims, but for some an ineffective one. Its
continuing importance ties people to what Moore calls 'the life term social
arena ... unforgiving and unforgetting', with its 'submerged system of
accounting. '81
SUMMARY

This essay outlines a general framework for thinking about African ideas about
proprietary rights and considers how this might produce insights into ideas about
social relations.
Drawing largely on examples from East and Central Africa, and on an analysis
of property disputes pursued to the Natal Native High Court, it is suggested that

7 Kopytoff, 'The cultural biography of things', 72.

78 Chanock, Law, Custom and Social Order, chs. Io and II.
7 See, for example, Parkin, Palms, Wine and Witnesses, 87-9I.
80 The market based on self interest is, Bohannan wrote, a pervasive institution, and
only definite mechanisms 'can keep the market principle from sweeping the whole
culture'. Tiv Economy, 24 I. These mechanisms had to be developed in a context in which
the market frontier was moving and contested, and in which African rules of exchange
were ultimately subjected to British ones, and in which disputes developed in areas for
which the dominant British rules were not wholly appropriate.
81 Sally Falk Moore, Social Facts and Fabrication: the Customary Law and Kilimanjaro
I880-I980 (Cambridge, I986), 298. Note too the importance of the 'witnesses' in
Parkin's Palms, Wine and Witnesses.

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88 MARTIN CHANOCK

the development of a customary law came first to the 'law of persons' and then to
the 'law of property'. Ideas and disputes relating to land and to other forms of
'old' and 'new' property are all examined. Ideas about what were and were not
commodities, and about different ways of dealing with kin and with strangers, are
shown to be fundamental to the understanding of disputing behaviours and the
meaning of customary norms. Disputes were not simply about ownership and
value but about the changing boundaries of commodity status. Ideas about
appropriate behaviour regarding the transactional order between kin concerning
'old' property (food and cattle) extended into the dealings between strangers about
(new' property (acquired with money through the market), whilst the ideas and
practices of the market economy had a significant effect on the way 'old' property
was dealt with among kin. The development of the customary law related to
property also has a particular relevance in understanding generational conflict in
Africa.
It is argued that customary law was formed in the process of a dialogue between
rulers and ruled during the colonial period. The colonial state impeded the
development of individual tenure by the 'invention' of communal tenure but was
ambivalent in response to attempts by younger men, and by women, to separate
estates from the control of older males.

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