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).
Introduction
Emerging from the workshop Rethinking Legal Research in and with Africa: Legal Methods, Critical Perspectives, and Decolonial Approaches in the Context of Human Rights and Sustainable Development, this jointly developed contribution is authored by four workshop participants. We are all in our doctoral or postdoctoral phase, trained in law across different geographical contexts and engaging with anthropological approaches to varying degrees in our respective research. Building on the exchanges during the workshop, our discussions gradually shifted to the relationship between law and anthropology.
To start with, the workshop was grounded in the observation that international human rights and development scholarship. Despite persistent and well-articulated critiques of its legitimacy from scholars and practitioners in the Global South, it remains predominantly shaped by Global North paradigms. As a result, it often risks overlooking local lived realities and the plurality of legal orders. This is where a critical reflection on how (socio-)legal research in the African context is and should be conducted emerges. Recognising that this endeavour goes far beyond the mere choice of methods and engages with broader questions of legitimacy and the persistent gaps it entails. In this regard, the workshop brought together scholars conducting socio-legal research on human rights and sustainable development across different African contexts.
Against this backdrop, our contribution to the blog symposium explores the theoretical relationship between law and anthropology, particularly in the context of legal research in and with Africa. Much of the existing scholarship is produced by African scholars in African contexts, yet it receives limited recognition. We argue that this gap in recognition of scholarship in law and anthropology can be narrowed in two ways: geographically, by abandoning the regions from which most developments in the fields stem; and conceptually, by marginalising the frameworks and questions that African scholarship brings to law and anthropology as a whole.
African perspectives in law and anthropology
Although still a niche field, an increasing number of (especially early-career) scholars draw on so-called socio-legal research methods, which have in turn generated more conceptual reflections on the relationship between law and anthropology as it is used and understood. For example, Vetters and Margaria point out in the introduction to their 2025 edited volume Leading Works in Law and Anthropology that they approach law and anthropology as an interdisciplinary encounter with the aim of “better understanding the transformative processes of legal and social orders in our globalised and increasingly intertwined societies.”[1] They further express the “conscious aim of providing a more geographically diverse picture of ‘law and anthropology”.[2] In operational terms, this involved engaging with various regional research traditions and making significant efforts to include authors who contribute to the desired geographical diversity through their chosen leading works and/or analytical perspectives. Nevertheless, a notable blind spot remains contributions (going beyond this volume) considered as shaping and reshaping the law and anthropology encounter, largely continuing to fail to incorporate African perspectives – at least from within.
This observation requires us first to define what an “African perspective” should truly mean in contemporary law and anthropology. Rather than a mere reactive stance that simply counters Eurocentric biases, Mkandawire’s identification of three generations of African scholarship trends, though articulated in the context of development studies, suggests it must be an exercise in absolute intellectual sovereignty.[3] While the first generation focused on decolonisation of the intellectual terrain and the second wrestled with state-building via borrowed models, he argues that the third generation must avoid defensive posturing. Crucially, true African perspectives must avoid the trap of essentialism; Africa is not a monolith, and its legal and social realities are highly diverse, often changing dramatically even within a single country’s borders. In law and anthropology scholarship, an authentic attempt to centre African perspectives cannot simply mean treating the continent as uniform, nor can it mean applying static, generalised notions of “tradition”. Instead, drawing from the decolonial vision, African perspectives must mean scholarship that is proactive and builds original theory directly from the continent’s pluralistic, multi-layered, and complex realities.
African perspectives considered as data instead of conceptual contributions
While this contribution highlights the invisibility of African contributions and perspectives in modern scholarly literature in law and anthropology, this deficit can be traced back to colonial-era anthropological studies of non-European societies. These foundational theoretical contributions continue to shape interpretations of African legal traditions today. For example, in Schapera’s Handbook of Tswana Law and Custom, a European scholar’s anthropological contribution produced what we know today as a legitimate reference text for the conceptualisation of Tswana Law for colonial and contemporary scholars, with little to no engagement with traditional Tswana scholars.[4] Moreover, Malinowski’s Crime and Custom in Savage Society, his anthropological fieldwork among the Trobriand Islanders of Melanesia, set the methodological blueprint for interpreting the ‘primitive legal order’ and was later applied to the study of African societies. These mechanisms laid the groundwork for early conceptions of European scholars writing on behalf of European scholars in the field of legal anthropology, while rarely crediting the intellectual labour of African (and other non-European) scholars who have done early and ongoing work to challenge the Western framings on which anthropology was built.
Okoth-Ogendo’s writing on land tenure in Kenya demonstrated that outside (European) observers misinterpreted and wrongly categorised complex, interlocking land relationships and ownerships as ‘informal’ or ‘communal’, and as matters that foreign English or Roman-Dutch common law or non-African legal methods could not grasp.[5] In his essay, ‘The Tragic African Commons’, he sharpens the complexities of African legal traditions and relations in African societies against entrenched misconceptions rooted in European academic underpinnings. Yet, like many other African works, it only features marginally in law and anthropology scholarship.[6] Building on African feminist perspectives, Tamale’s Decolonisation and Afro-feminism does similar work to Okoth-Ogendo by examining the intersection of gender, customary norms, and constitutional rights, explicitly rejecting European/colonial framings of African traditions as directly antithetical to rights. She posits that African feminist legal jurisprudence is already pluralist and methodologically competent in nature, without the aid of European/common-law repugnant methods.[7] In chapter 4, ‘Customary Law: The Theory of Decentralised Despotism’, Mamdani explains this resort to homogeneous epistemic injustice in the law and anthropology canon. In this chapter, in reframing the colonial-customary debate, he explained that statutory law was not applied merely alongside customary law, but intended to create a dichotomous nature of the legal systems of African societies that inherited it.[8] The nature of his argument, which engages with the interpretation of legal texts and the understanding of African societies, in itself rejects the notion of a disciplinary boundary that most European scholars tend to enforce.
African scholarship as theory, not data
The fact that these African scholarly contributions remain on the periphery reflects the broader problem of African scholarship in law and anthropology, where African knowledge contributions are treated as data rather than as theory. This marginalisation is sustained in two ways. Structurally, journal publications and university presses, which are considered vanguard or leading in this terrain, are largely concentrated in Europe and North America. The peer reviews, citations, and writing networks are weighted according to this hierarchy. African legal-anthropological contributions are not treated as theoretical contributions. Disciplinarily, most African work on law and society developed by lawyers, jurists, scholars, and researchers with deep ethnographic and anthropological instincts does not necessarily call itself legal anthropology. A good example is Himonga and Nhlapo’s extensive work on South Africa’s customary law, conducted through doctrinal and ethnographic methods of observation, which is easily missed by legal anthropologists looking for similar experts in the field, due to the strictly applied boundary between law and anthropology.[9]
Concluding remarks
Overall, we argue for a critical reflection on developments in law and anthropology, and on their intersection when seen as distinct disciplines, as they continue to maintain their theoretical and conceptual centre largely in Europe or North America. Following Mkandawire, to make African perspectives understood as pluralistic, multi-layered, and complex realities of the continent, it would be more visible to question the source of mainstream academic conceptualisations in law and anthropology. Also, as of African societies within these fields, and why, for so long, such positions have been accepted without contestation.
[1] Larissa Vetters and Alice Margaria, ‘“Law and Anthropology” as Interdisciplinary Encounter: Towards Multi-sited, Situated Knowledge Production’ in Alice Margaria and Larissa Vetters (eds), Leading Works in Law and Anthropology (Taylor & Francis 2025), 1.
[2] Larissa Vetters and Alice Margaria, (n 1) 11.
[3] Thandika Mkandawire, ‘Three generations of African academics: a note’ (1995) 28, Transformation: Critical Perspectives on Southern Africa, 75.
[4] Isaac Schapera, A Handbook of Tswana Law and Custom: Compiled for the Bechuanaland Protectorate Administration (Oxford University Press for the International African Institute 1938) 35.
[5] HWO Okoth-Ogendo, ‘Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya’ (ACTS Press 1991) 5, 10.
[6] HWO Okoth-Ogendo, ‘The Tragic African Commons: A Century of Expropriation, Suppression and Subversion‘ (University of Nairobi Law Journal 2003) 107.
[7] Sylvia Tamale, ‘Decolonization and Afro-Feminism’ (Daraja Press 2020) 187-190.
[8] Mahmood Mamdani, ‘Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism’ (Princeton University Press 1996) 109 -137.
[9]Chuma Himonga and Thandabantu Nhlapo, ‘The Nature and Concept of Customary Law’ in Chuma Himonga and Thandabantu Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (Oxford University Press Southern Africa 2014) 23-29.
