Mahmood Mamdani observed that, “The political project of the [colonial] regime of ‘customary’ laws was to fracture a racialized native population into different ethnicized groups. The basis of group distinction under indirect rule was both race and ethinicity.” This observation highlights the necessity to contextualize the historical perspective of customary law.
Empirical history tells us that the colonial administration transformed indigenous people’s basic informal general ethical code of conduct for life and worldviews into a more formal institution of what is now referred to as 'customary law.' The conduct of life was basically founded on the ethical philosophies that guided an indigenous political community on a day to day basis. The ethical framework was founded on the values of egalitarianism, restorative justice, and collective interdependence and survival that provided the reference for general conduct – in effect 'customary law.'
As the state system became dominant, 'customary law' became compressed, more institutionalized and legalized under a state legal system. As a result, the essence of 'customary law' ceased to reflect the indigenous communities’ ethical philosophies and values in its praxis. With the onset of institutionalization and legalization, 'customary law' was frozen in time. Rather than promoting the societal values and principles, it has come to effectively limit and fracture its ethical framework.
The current institutions of 'customary law' of many indigenous peoples and communities have ceased to be dynamic in nature. This static character raises questions about its relevance as it fails to respond to present day issues. Rather than being a facilitator of a dynamic ethical framework, the institution of today's 'customary law' has come to represent a static parochial view of reality. It is manipulated by people in power to pursue their own interests and needs. Above all, its ability to facilitate restorative justice as in the past now alienates women, younger people and persons of 'lesser privilege.'
In effect 'customary law' has come to represent the interests and power of a 'selected few' that seek to impose their will on the community. As a result, today’s 'customary law' contradicts the very values and democratic principles that nurtured its existence.
So where does one go from here? Luigi Guissani says that traditions are not handed over to the next generation so that they become fossilized. Like their ancestors, the present generation should be able to develop tradition, 'even to the point of profoundly changing it.'
However, in order to develop the capacity to transform traditions one needs to 'act with' what their ancestors passed on to the present. This means using tradition critically, filtering it through their own praxis. Yet, using tradition critically does not mean doubting its value. Ironically, the more one turns away from traditions to modernize with the precepts of other people's cultures, the more they become fossilized. As a result, this 'cultural dislocation’ has led to despair, and no longer having a sense of personal and communal responsibility.
There is a need to rethink and transform the concept of 'customary law' within the ethical framework of democracy, restorative justice and equality, and, at the same time infuse it with the needs and aspirations of today's indigenous community.
Indigenous peoples must engage in critical dialogue on how to transform social institutions into a more participatory process where all generations – our elders, men, women and youth, are equally engaged within an ethical framework of democracy, restorative justice, equality, respect and dignity. As Thomas Sankara once said, 'we must be able to take from our past from our traditions – all that is good, as well as all that is positive in foreign cultures, so as to give a new dimension to our culture.'