ABSTRACT
Part One of this study discusses the important but ambiguous role of customary law in the legal system of Southern Sudan. It provides background on the legal system of Sudan as a whole, explains the cultural and social context in which the customary law system operates, analyzes the current status of customary law in light of Northern Islamization efforts and the devastating civil war, and explores current needs and approaches to reform of the customary law as the South builds its own legal system pursuant to the Comprehensive Peace Agreement. Part Two presents an illustrative selection of substantive customary laws, to provide further depth regarding the intrinsic logic of the traditional system and thereby lay a foundation for the critical evaluation needed for modernizing reform. To provide a selective and focused purview of customary law, this paper
draws heavily on, and follows the framework that was followed in the study titled Tradition and Modernization: A Challenge for Law Among the Dinka of the Sudan. That study built on the jurisprudential theory developed by professors Harold Lasswell and Myres McDougall at Yale Law School, which sees law as regulating processes involving people seeking values through institutions and using resources, with certain outcomes and effects. Apart from overriding postulates that guide the process, eight value categories were identified. These included four deference values – power, affection, respect, and rectitude – and four welfare values – wealth, well-being, skills, and enlightenment. Under each of these values, the social processes around the value were first discussed and then the pertinent areas of the law relevant to the value concerned were presented. Power and the law covered the nature of Dinka law, appointment and dis-
missal of decision-makers, jurisdiction and powers, and the functions of decision, which covered the law of procedure. Affection and the law covered family law – including marriage, dissolution of marriage, legitimacy of children, sexual offenses, vicarious liability, and intrafamily liability. Respect and the law focused on defamation, including an overview of defamation in general, modes of defamation, objects of defamation, the necessity of publication to a third party, justification, privilege, and redress. The section on rectitude dealt with freedom of religion – or lack of – focusing on indigenous values of
individual and family or group autonomy in religious practice as contrasted with the policies of the Sudanese state in favor of Islam and the restriction of the Christian missionary work in the South. The law relating to wealth included bride wealth, inheritance, barter and sale, custody of livestock, gifts, theft, acquisition and rights of ownership, labor and produce. Well-being concerns physical health and the relevant areas of law were presented under homicide, bodily injuries, liability for animals, employment of curers, and “health insurance.” Skills and the law discussed such things as payment for experts in the settlement of feuds connected with homicide, divination, and song composition, some of which are more symbolic than of significant material value. Under enlightenment and the law, matters relating to responsibility for the guardianship and education of children were discussed in broad terms. Above the value-processes and their legal expression, Lasswell and
McDougall postulated the overriding goal of human dignity, defined as the broadest shaping and sharing of all values. Put in other words, this is essentially a principle of equity and inclusivity, in a free and democratic society.1
This also implies a holistic observance of all human rights and fundamental freedoms and liberties. In this context, human dignity as defined provides a normative basis for evaluating the roles of the various participants in the traditional system, the changes the society has undergone or is undergoing, and the consequential need for reform. The areas from which the following selections are made cover four value
categories and their legal expression, two from the deference values – affection and respect – and two from the welfare values – wealth and well-being. In more conventional legal categories these include: family law, law of defamation, law of property, and homicide and bodily injuries.2
