SOAS Research Online

Abstract

Judicial customary law, based initially on the works of indigenous scholars, has developed extensively in Ghana to provide the premise on which the country bases its laws of family, property and succession. Social enquiry, however, discloses a growing dichotomy between judicial customary law and the customary law that is actually practised by the people. This is due largely to the flexible nature of customary law and the continual development of new rules to meet changing conditions. Guided by the English doctrines of precedent and stare decisis the state courts have generally not recognised the new rules which regulate the day to day activities of ordinary people. As a result, a considerable gap exists between judicial customary law and social reality. In recent years, the state has sought to ameliorate the social injustices caused by the untrammelled operation of the rules of judicial customary law through the enactment of legislation. The present thesis argues that the mere enactment of legislation is no guarantee of the reform of customary law. It is contended that the key to successful reform of customary law lies in the implementation of programmes aimed at ensuring that norm-addressees actually benefit from legislative enactments. While the main aim of the present work is to assess the impact of recent Ghanaian legislation upon customary law in an urban environment, it also analyses the extent to which the modern law has been able to strengthen the claims of the nuclear family. The thesis concludes by making suggestions for further law reform.