How we use cookies

We use Google Analytics cookies to help give you the best experience on our website. By continuing without changing your cookie settings, we assume you agree to this. Please read the Law faculty's cookie statement to find out more.

Skip down to main content
Colourful buildings rise in the Dar es Salaam (Tanzania) cityscape
Dar es Salaam, Tanzania. Photo by Rohan Reddy on Unsplash.

Legal Syncretism: A New Frontier of Constitutional Studies

Colourful buildings rise in the Dar es Salaam (Tanzania) cityscape
Dar es Salaam, Tanzania. Photo by Rohan Reddy on Unsplash.

The major scholarly discussions on constitutionalism in Africa revolve around two main theoretical frameworks: legal centralism and legal pluralism. Legal centralists explain the idea and practice of constitutionalism through the prism of liberal constitutionalism, focusing primarily on written constitutions. From the perspective of the legal centralists, the performance of constitutionalism in the region has been a tragic failure, at worst, and very disappointing, at best.

In contrast, legal pluralists understand and explain constitutionalism in Africa from two distinct vantage points: the first is through the lens of the State and the second is through the lens of society. Inherent in this view is the bifurcation of the public sphere into the civic public, which operates—or claims to operate—under the structures of the State created during colonialism, and the primordial public, which has functioned in accordance with indigenous custom since precolonial times. Legal pluralists hold that these two publics operate under different senses of morality, rationality, and justice. As a result, they posit that there are dual and parallel constitutional systems in African States.

While legal centralists turn to the universe of liberal constitutionalism to find a cure for what they consider to be the perennial ills of African constitutionalism, legal pluralists believe the solution lies within the historical and cultural milieu of Africans.

There is an impasse between the legal centralist and legal pluralist accounts of constitutionalism in Africa. As these theoretical frameworks stand on different epistemological, historical, and legal accounts, it is difficult to fully understand African constitutionalism in its normative and empirical manifestations without choosing one over the other. As such, the legal centralist and legal pluralist impasse limits the range of theoretically cogent and practically sound constitutional solutions to the problems of constitutional government on the continent. The solution to such an impasse is not to be found in the emphatic support of one against the other, but rather in subjecting them both to proper critical exposition and analysis.

In my book, A Theory of African Constitutionalism, I address this impasse through what I call legal syncretism, which I define as ‘the process and the result of adoption, rejection, invention, and transformation of diverse and seemingly opposite legal rules, principles, and practices into a constitutional state with imperial or colonial legacies.’ As is evident from its definition, legal syncretism has two facets: a process and a result facet.

Legal syncretism as a process helps us understand how we got here, namely (i) how a particular synergy of international law and European colonial laws ended the precolonial constitutional systems of African societies; (ii) how colonial constitutionalism took root on the continent via the accommodation, rejection, and invention of some variants of custom and traditional authority; and (iii) how and why postcolonial constitutionalism accepts the colonially-constituted state, but struggles to devise a theory of government that legitimates these states and addresses their pressing challenges within an international legal order that takes democracy, the rule of law, and human rights as a ‘constitutionalist trinity’.

Legal syncretism as a result helps us better capture and explain the attendant constitutional designs and practices in Africa including the (i) nature of the state; (ii) its government structures; and (iii) its Bill of Rights.

First, in a departure from classic theories of state, the state in Africa, first came into being and took root in society through the technology of law. It is the product of the syncretic configuration of international law from above and African indigenous laws from below. While international law gives the state (both colonial and postcolonial) internal autonomy and external protection through the doctrine of sovereignty, indigenous laws provide the state with the necessary infrastructure and resources for internal operation.

Second, the traditional and modern conceptions of political power and authority animate the structure and operation of the government. Consider, for example, the legislature. In many African States, the legislature is a dual house of representation based on both the liberal notion of popular sovereignty (one person one vote) and the traditional form of sovereignty (as symbolised in the law-making powers of traditional leaders or authorities either as part of the legislature and/or authors of customary laws).

Third, because the constitutional system in Africa has a dual commitment to cultural diversity and liberal constitutional values, the singularity of the constitutional order lies not in having a singular conception of justice, rights, and values, but in its ability to provide a framework within which various pluralities can exist and operate within the State. Precisely because of this, what is constitutionally permissible and what is not cannot be simply determined by an attachment to either liberal constitutional values or non-liberal values; it is the interaction of these plural constitutional values in time and place that dictates what the constitutional practice or outcome should look like.

By now it may be clear that legal syncretism, more than legal centralism and legal pluralism, first locates constitutional studies in Africa within the experiences, interactions, and contestations of power and governance beginning in precolonial times, and second – by doing so – better captures and explains the development and transformation of African constitutional systems across time and place, along with the attendant constitutional designs and practices. Furthermore, legal syncretism not only clearly captures and explains the nature, identity, and structure of African constitutionalism in epistemologically conscious, theoretically defensible, and contextually informed ways, but it also offers key theoretical tools and practical insights for evaluating and improving the performance of African constitutionalism on its own terms.

I believe the theoretical framework of legal syncretism is relevant to constitutional studies beyond Africa. This is because the general drivers of constitutional histories, politics, laws, and practices; the local, national, and international dynamics that shape constitutional experience; and the legacies of colonialism and imperialism I discuss in A Theory of African Constitutionalism are also relevant to much of Asia, Latin America, the Middle East, and Central and Eastern Europe.

If my thesis and analysis are correct, legal syncretism then is a new frontier of constitutional studies in much of the contemporary world.

About the Author

Headshot of the author Dr Berihun Gebeye

Dr Berihun Adugna Gebeye

Lecturer in Law, Faculty of Laws, University College London

Dr Berihun Adugna Gebeye is a Lecturer in Law in the Faculty of Laws, University College London. He is the author of A Theory of African Constitutionalism (Oxford University Press 2021). With Professor Richard Albert, he is editing The Oxford Handbook of African Constitutions (under contract with Oxford University Press).

Share via
Copy link
Powered by Social Snap