ABSTRACT
Francis Deng (FD): First of all, let me express my deep appreciation for your receiving me and particularly for taking time off on Sunday when you would be either in church or with your families. I just want you to know that I appreciate it very much. I wanted us to have a conversation around the future of customary law in our country, and in a number of interrelated areas. One is with respect to the administration of justice, the other relates to the role of culture in governance, in the broader sense, and the third is the relevancy of our cultural values to constitutional democracy. Let me begin by a brief anthropological overview. I believe every society
has a system in which justice, administration, and the principles of constitutionalism are governed by fundamental principles, major goals, that society aims at promoting, and which determine the system. In my own work on the Dinka, I premised the system on three main principles. One was the continuity of the ancestral line, which really aims at immortalizing every individual, so much so that even when a person dies without marrying, a woman is married to beget children in his name. Another is unity and harmony. We know that in African law, as contrasted with European law, the notion of restoring the unity and harmony of the community is the principal element of dispute settlement. The aim is not simply to apply the law so that you win or lose, but to bring people together, to have consensus behind decisions, so that people can go back and live together. That was a major principle which I think influenced much of the judicial or legal process. A third principle was respect for every individual. I always give the example of how in English law it is said that a dead person has no reputation and cannot be defamed. With us, the opposite is the case; it is a more severe offense to insult a dead person than it is to insult a living person. Today, it seems to me that we are confronting a situation in which the
relevancy of custom or tradition can no longer be seen as just contributing to the status quo, or looking back in a reactionary way. To the extent that every society is not only organized around fundamental values and institutions, but evolves on those bases; you don’t just leap from nowhere to somewhere, into the so-called modernity. In Tradition and Modernization, I go into details to see how one can build on tradition to promote development or progress.
