This essay is an attempt to investigate, assess and compare the role of the “people” as makers of law in a variety of customary societies in black Africa on the one hand, and in England on the other. The studies that may have been made of this sort of question by lawyers, constitutional experts, sociologists, political scientists and the like have rarely, if ever, contrasted the law-making function of the people in the two types of society. Where such a contrast has been made, it has tended to be limited to the proposition that things are quite different in the two types of society. It will be one of the arguments of this essay that, although the procedures and mechanisms of the law may fundamentally differ if one compares a highly developed, industrialised, literate society such as England with a simpler subsistence pre-literate society such as anciently those of the Ashanti and the Sotho, yet in each society, whatever the forms in which power is exercised or however absolute the authority possessed by those in power, yet the people participate constantly and in a variety of ways in a continuing process of law-making. It will be the task of this paper to isolate, describe and compare those ways.

There is a familiar stereotype overrunning much of the anthropological literature on political and economic development in new nations. Brokers and big men have captured the stage, and their chains and alliances, their manipulations and calculations, their political games as men in the middle of centre-periphery relations have loomed larger than life in the literature. Indeed, it has come to be almost a matter of faith in certain studies of new African nations, especially studies influenced by work on India, to regard political questions within the frame of a patronage model, since it has been taken for granted that transactions between patrons and clients or “friends of friends” control the stuff of politics, the decisions about who gets what, when and how. How and why the rule of law is upheld during those periods of major change in government that come immediately before and after Independence remains a largely neglected question. Yet in a new nation citizens may also take political action through appeals to ministers, courts, tribunals, or commissions of enquiry and thus subject decisions by the local government to review and sometimes revision by the central government. The outcome need not be a foregone conclusion, because the hearings may pit the interests of the central and the local government against each other. The central government may then have to defend the aggrieved citizen against the local elected officials or civil servants. The point is not that a citizenship model has to be put in the place of the old patronage model. Rather the power of citizens in a new nation qua citizens has to be taken as problematic, and their powerlessness without middlemen or brokers cannot be assumed, especially in centre-periphery relations.

Schapera’s accounts of the Tswana provide one of the few instances of contract to be found in the “customary” law of African societies in colonial times. Not only were contracts a means used, even between closely related people, for making certain kinds of transactions, but also the Tswana courts were prepared to enforce executory contracts. In this paper I intend to discuss the significance of contracts among the Birwa of independent Botswana, in particular the way in which contracts are used to regulate certain kinds of productive exchanges between co-operating neighbours.

This paper seeks to explore some of the cardinal principles of Sesotho law in relation to marriage, divorce and the legitimacy of children and to consider how far these have been subjected to change during the course of the present century. The method chosen to illustrate this process is a detailed examination of a single unreported case which came before the Lesotho courts during 1971–4, but in which the crucial events which required legal interpretation had occurred some sixty years earlier.

This essay is an attempt to explain the persistence of high bridewealth in Lesotho. I argue that the structural conditions of its persistence have changed over time and I develop a macro-economic perspective in which to apprehend its contemporary significance. This approach exposes the weakness of the anthropologist's traditional paradigm of discovering functional consistencies between variables of kinship structure within a relatively homogeneous “society”. For an understanding of social systems on the rural periphery of southern Africa critically depends on assumptions about the way in which these are articulated with the larger political and economic system of the region as a whole. From a methodological point of view the essay may be seen as an attempt to work out systematically the implications of a view that Isaac Schapera has argued in essence throughout his professional life: that piece-meal ethnography can only make sense within its full political, economic and social context.

In paying tribute to the pioneering work of Isaac Schapera on Tswana law we return to one of his earliest and possibly least quoted studies, “Premarital Pregnancy and Native Opinion: A Note on Social Change-”, and explore the recent transformations which have characterised the perception and management of extra-marital sexuality among the Kgatla. We shall suggest that these transformations are the product of a wider process: namely, the spread of monogamy within a society organised in terms of the assumption of polygyny. In doing so we shall seek to demonstrate that the analysis of one substantive problem in the field of legal anthropology may illuminate a number of fundamental social principles.