Customary Law in its Cultural Context

Law is not an abstract concept neutrally poised above political, social, and cultural realities of a given community but is, to the contrary, a normative framework that regulates the society’s constitutive processes. These processes themselves are guided by overriding postulates that determine the distribution of power, wealth, and other values, both substantively and procedurally. Law is thus an instrument of power for regulating relations between people, promoting values, and managing resources. This is why the study of customary law must go beyond legalistic principles to probe into the complexities of the social order and its determinants. This section seeks to identify and elucidate the cultural concepts that are

most necessary to forming an understanding of customary law in the South: procreational immortality, the ideals of unity and harmony, the interrelated dignity of the individual and the group, and the attributes required of leadership. It further discusses how these concepts are translated into a system of conflict resolution, involving law, decision-makers, and the process of decision-making. Understanding these overriding goals of the society’s culture is necessary to understand their law, and also what reforms will be required to adapt the law to today’s changing conditions – the subject of the final Section 6 in Part One: “The Challenges of Reform.” A methodological note is necessary here: there are many ethnic groups in

the South with varying degrees of diversity in their cultures and customary laws, and it will be impossible to do justice to them all. The author’s particular expertise is on the Ngok Dinka of Abyei – the Dinka, in their various groupings, are the majority in the Sudan – among whom he conducted extensive field research in the 1950s and 1960s. What should be emphasized, however, is that despite significant differences among the various ethnic groups, there is much in common in the customary laws of the South. Furthermore, this being a study not of, but about, customary law, the conceptual issues it raises are much more generic than would be the case with a discussion of the laws of a specific group.1