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

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 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.