This blog piece is part of our ongoing “Rethinking Legal Research in and with Africa” symposium. To access the introduction explaining the framework, click here (ALS / LDC), to access the overview of the symposium click here (ALS / LDC).
Decolonising legal methods begins with questioning what legal scholarship allows itself to see as law. The challenge extends beyond simply diversifying legal objects or recognising legal pluralism. It ultimately requires asking a more fundamental question: what legal experiences count as law, and which methods are considered legitimate to study them?
In France and across parts of Africa shaped by the French colonial legal tradition, legal scholarship remains strongly attached to a positivist and Western-centric conception of law. This approach privileges written norms produced by State institutions while leaving limited space for non-state normative orders. This raises an important question: can Francophone legal scholarship genuinely engage with African realities while relying on methodologies that historically contributed to marginalising non-Western forms of law? And what would it mean to rethink legal methodology in light of contemporary demands for epistemic rebalancing?
What Counts as Law?
In Western legal academia, the definition of law is not a marginal issue but a central object of legal scholarship: a jurist’s preoccupation in its own right, according to Hart’s classic The concept of law[1]. This central concern for the definition of law is not neutral. Law is not only a science but also, as a body of norms implemented in society. It is widely perceived -especially by jurists- as capable of influencing behaviours and shaping social order.[2] This perceived capacity gives law a distinctly political dimension. Critical approaches have long emphasised that law is embedded in power relations, while Marxist legal thought has analysed it as an instrument serving the interests of dominant classes.[3] This political character is particularly visible in colonial contexts. In colonial Africa, law was not merely imported but deployed as an instrument of domination. Colonial legal systems were used to control populations, impose behavioural norms, dismantle competing authorities, and domesticate local institutions.[4]
The Dominance of Positivist Approaches in Francophone Academia
In Africa, colonial powers established hybrid legal systems with a hierarchical cohabitation between Western law and non-state normative orders. In Mubiala’s words: “this legal pluralism enabled the imposition of imported law as the common law, while [African] traditional law was treated as an auxiliary law”.[5] After independence, most former French colonies adopted constitutions inspired by the Constitution of the French Fifth Republic and maintained private law systems largely derived from the 1804 Napoleonic Civil Code.
Continuities in legal systems also produced continuities in legal education and scholarship. According to Diouf[6], Mudimbe’s concept of gnosis prompted reflexive inquiries into African epistemologies across disciplines such as anthropology, history, and philosophy. However, these inquiries have remained limited within the legal field. In fact, African legal scholars largely embraced Kelsenian positivist approaches to law according to which the role of the jurist is to “observe and explain the ‘mechanics of law,’ regardless of the outcomes it produces”[7]. From a methodological perspective, that meant centering the analysis of legal texts, judicial decisions, and doctrinal interpretation, with limited space for empirical enquiry.[8]
As a consequence, in accordance with the French legal tradition, legal academia in Francophone African countries gives primacy to doctrinal analyses of written law, even when those texts are removed from the realities of African peoples and subject to limited implementation. African non-state normative orders often operate through procedures and forms of authority that differ significantly from those privileged in Western legal traditions. Written rules and file-based documentation may play a less central role, while oral procedures or relational forms of regulation occupy a greater place. Yet dominant legal methodologies often struggle to recognise these practices as forms of juridicity in their own right, and therefore, their study is marginalised in the legal field.
However, research on non-Western legal traditions certainly exists, particularly within legal anthropology and sociology, including works on land regulation and local governance[9], as well as the work of the former Laboratoire d’anthropologie juridique de Paris. These initiatives have nonetheless remained largely confined to the social sciences and have had only limited influence on legal scholarship itself, leading to a persistent invisibility -or denegation- of African forms of justice within legal scholarship and education.
The Role of Legal Pluralism and Its Limits
Legal pluralism initially appeared as a direct challenge to positivist conceptions of law. Broadly defined, this body of scholarship recognises the coexistence of multiple normative orders within the same social space.[10] In African contexts, this framework has been particularly influential in making visible non-state forms of justice, such as customary, community-based, or religious mechanisms. However, this visibility did not necessarily translate into equal interest for non-Western forms of law. More recent critiques point out that even pluralist frameworks often retain the Westphalian state, typically modelled on European legal forms, as the main reference point. As a result, other traditional forms of states and non-state normativities are recognised only in relation to, or in deviation from, this standard. In that sense, legal pluralism fails to escape the colonial logic of hierarchies of legal orders. Rather than abandoning legal pluralism, these critiques invite its decolonisation. If legal pluralism is to fulfil its emancipatory potential, it must move beyond merely recognising the coexistence of normative orders and critically examine the epistemic hierarchies through which some forms of legality continue to define, classify, and legitimise others.[11]
The Way Forward: Exploring Critical Thinking and Decolonial Approaches
The realisation of the need to expand the perspectives and methodologies applied to law has led to a growing interest in decolonial approaches and empirical methods in French academia. On the African continent, recent calls for a refoundation of legal theory are questioning the very way law and democracy are conceptualised.[12]
These initiatives open the door to new ways of thinking about law. The challenge of decolonising legal methodologies should not, however, be framed as an African issue alone: it concerns the entire Francophone academic community. Academic networks across France, Belgium, Switzerland, Canada, and Francophone Africa remain deeply influenced by historical colonial connections. In legal studies, where public funding continues to play a dominant role and private funding remains limited, access to academic opportunities still frequently passes through European institutions and development-related funding schemes. While these circulations create opportunities, they also reproduce asymmetries of power and legitimacy. Decolonising legal scholarship cannot be an African project alone. As academia operates through interconnected transnational networks, Western institutions must also be part of this transformation.
The transformation of legal methodologies should not remain confined to fields such as legal anthropology or legal history. Across Africa, it is commonly estimated that more than 85% of disputes are handled outside state courts.[13] If most legal practices unfold beyond the state judiciary, scholarship on non-state forms of justice should become a central rather than peripheral concern of legal research. Research in this direction already exists, including recent work by African scholars such as Diouf on the epistemology of civil law in Francophone Africa[14] and Fofana on the reconfiguration of disputes as they move between customary and state dispute resolution systems.[15] Despite their significance, these works remain marginal within mainstream legal curricula and legal education.
Pluralising Legal Research and Education in Francophone Academia
Responding to this challenge requires more than adding new objects of study. It requires expanding the methodological repertoire of legal scholarship itself, especially legal pluralism. As Araújo argues, the decolonisation of legal pluralism itself requires a much deeper commitment to interdisciplinarity, which Araújo describes as a “cross-disciplinary” approach to legal pluralism.[16] This poses a particular challenge for Francophone legal academia, where law has traditionally been taught and researched as a relatively autonomous discipline, with only limited engagement with the other social sciences. Critical approaches and empirical methods offer concrete pathways for pluralising legal education. Lawyers cannot undertake this shift alone. Understanding legal phenomena beyond state institutions requires dialogue with anthropology, linguistics, geography, psychology, history, philosophy, and other disciplines. The case of language is particularly revealing. Socio-linguistic research on African languages and on the translation of legal concepts between official languages of law (particularly French and English) and national or local languages remains extremely limited, despite recent pioneering contributions. Duda and Loliwe (2026) show that translating legal concepts into isiXhosa is not merely a linguistic exercise: it reveals how categories such as “informal land tenure” fail to capture the coherence of local normative orders.[17] These initiatives remain rare but are gradually gaining visibility. A recent special issue of the International Journal for the Semiotics of Law will also explicitly engage with questions of language, translation, and epistemic plurality.[18]
These contributions illustrate that pluralising legal knowledge requires transforming not only what lawyers study, but also who participates in producing legal knowledge and which methods are considered legitimate within legal education. The law faculty of tomorrow should be able to produce not only legal technicians but also legal thinkers capable of challenging, de-centering and deconstructing the colonial canons that shape law.[19]
[1] Herbert Lionel Adolphus Hart, The Concept of Law (OUP Oxford 2012).
[2] John Griffiths, ‘Is Law Important?’ (1979) 54 NYUL Rev. 339.
[3] Evgeny Pashukanis, Law and Marxism: A General Theory (Pluto Books 1987).
[4] Alfousseyni Diawara, Autorités Traditionnelles. A La Recherche Des Causes de Leur Survivance Dans Les Labyrinthes Juridique et Judiciaire de l’Afrique Précoloniale à Nos Jours. (Editions Tombouctou 2023); Florence Renucci, Les Coutumes Dans La Fabrique Des Droits Africains (Dalloz 2021); Étienne Le Roy, ‘Sur Le Chemin de Kahnawake. Décolonisations Du Droit et Mondialisations’ (2010) 15 Lex Electronica 493.
[5] Mutoy Mubiala, ‘L’héritage du droit africain authentique à l’Afrique’ (2022) 74(1) Revue internationale de droit comparé 241. <https://doi.org/10.3917/ridc.741.0240>
[6] Abdoul Aziz Diouf, ‘Repenser le droit civil en Afrique noire francophone’ (2022) 74 Revue internationale de droit comparé 369.
[7] Boris Barraud, ‘La méthodologie juridique’ in La recherche juridique (L’Harmattan 2016) <https://hal.science/hal-01367751>
[8] Tom R Tyler, ‘Methodology in Legal Research’ (2017) 13 Utrecht Law Review 130 <https://doi.org/10.1177/0963721410397271>
[9] Hubert MG Ouedraogo, ‘De la connaissance à la reconnaissance des droits fonciers africains endogènes’ [2011] Études rurales 79 <https://doi.org/10.4000/etudesrurales.9388>; Jean-Philippe Colin, Philippe Lavigne Delville and Éric Léonard (eds), Le foncier rural dans les pays du Sud (IRD Editions 2022).
[10] Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’ (1981) 13 The Journal of Legal Pluralism and Unofficial Law 1.
[11]Oñati Socio-Legal Series vol 15, no 5 (2025) ‘Decolonising Plural Legal Orders, Decentring Epistemological Paradigms’ (special issue, eds Martin Ramstedt and Katrin Seidel)
[12] ‘Démocratie et réinvention de la théorie du droit en Afrique’ (Call for Papers, Droit et Politique en Afrique, 29 March 2024) <https://droit-et-politique-en-afrique.info/democratie-et-reinvention-de-la-theorie-du-droit-en-afrique-appel-a-communication> accessed 12 April 2026.
[13] Lisa Denney and Pilar Domingo, ‘Taking People-Centred Justice to Scale: The Role of Customary and Informal Justice in Advancing People-Centred Justice’ (Overseas Development Institute (ODI) 2023) <https://odi.cdn.ngo/media/documents/CIJ_Taking_People_centred_Justice_to_Scale_paper_FINAL.pdf>.
[14] Diouf (n 6).
[15] Habibou Fofana, ‘Rapprocher La Justice Des Justiciables. Une Ethnographie de La “Distance Judiciaire” Au Burkina Faso’ (2018) 99 Droit et Société 393 <https://doi.org/10.3917/drs1.099.0393>.
[16] Her proposal extends well beyond the traditional socio-legal disciplines to engage with fields including political economy, geography, ecology, feminist studies and critical race theory. Sara Araújo, ‘Legal Pluralism as Co-Presence: Disobeying the Hierarchies of the Western Canon’ (2025) 15(5) Oñati Socio-Legal Series 1.
[17] Thiyane Duda and Bonani Loliwe, ‘Umhlaba Wethu: Iinkqubo, iingcamango, nengqiqo yesiXhosa ngomhlaba. Our land: isiXhosa processes, concepts and logic of land’ (2026) South African Journal on Human Rights 1.
[18] International Journal for the Semiotics of Law, ‘Human Rights, Recognition and Decoloniality’ <https://link.springer.com/collections/fjhajhgcjj> accessed 17 June 2026
[19] Kathy Luckett, ‘Curriculum Contestation in a Post-Colonial Context: A View from the South’ (2016) 21(4) Teaching in Higher Education 415.
