Customary law: the limits of its validity in colonial law

SYNOPSIS

This essay aims to delimit the scope of the operation of customary law in English colonial law. Customary law has in varying degrees been recognized as forming part of the local law of almost every British territory : the one touchstone of the validity of any alleged rule of customary law is that it must neither infringe an established statutory or common law principle nor must it be contrary to the principles of “natural justice, equity and good conscience”. In practice, however, this apparently simple provision not infrequently gives rise to controversy, especially when applied to unusual circumstances by English or English‐trained colonial judges whose conception of public policy is sometimes at variance with indigenous ideas. Clearly barbarous customs, such as witchcraft practices and trial by ordeal, are easily ruled out of court but not so borderline cases that neither pique the judges' enlightened sense of morality and fairness nor affront the indigenous code of ethics. It is with the delicate and often nice questions of establishing acceptable criteria of legal validity for particular rules of customary lam in the very diverse conditions of British colonial territories that the analysis that follows attempts to deal. Customary law is still an integral part of modern colonial law and a close examination of the limits of its operation within the latter is certainly overdue.