A Manual of Nuer Law

Being an Account of Customary Law, its Evolution and Development in the Courts Established by the Sudan Government

P. P. Howell

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429013393
• Edition: 1
• Topic: Social Sciences
• Subtopic: Anthropology
• Index: Social Sciences

Originally published in 1954 this book was originally designed for administrators but has become a key title for anthropologists. It includes a summary account of the history and social organisation of the Nuer and provides a descriptive analysis of their customary practices concerning homicide, blood-feuds, marriage and divorce and the settlement of disputes by arbitration and the award of compensation. It shows how in the first half of the twentieth century, as a result of administrative action and in particular the establishment of 'Chiefs' Courts' a system of law developed, which although based on customary procedures, introduced many concepts which were quite unknown to the Nuer in the past.

CHAPTER I

INTRODUCTION

1. INTRODUCTORY

Sources, Methods, and Objectives

THE Nuer are a Nilotic people who live in the savannah and swamps of the Upper Nile Province in the Anglo-Egyptian Sudan. My acquaintance with them began in 1942 when I was appointed Assistant District Commissioner of the then Zeraf District which included three of their tribes. In 1943 a special body known as the Nuer District Commissioners’ Meeting, and now called the ‘Nuer Chiefs’ Council’, was set up by the Governor of the Province. The object was to enable administrators and chiefs, chosen from all Nuer Districts to represent their people, to discuss common interests, and ensure some consistency in administrative policy. One of the main subjects for discussion was the growing body of ‘customary law’ administered in Nuer tribunals established by the Government, and the obvious need for standardization of the general principles, although it was agreed that any form of rigid codification should be avoided. One of the first resolutions passed at this first meeting was that an investigation should be made of the principles of Nuer customary law and a record kept. This Manual of Nuer Law springs from that resolution. I was able to study and record the cases which appeared before the courts throughout my service in the Zeraf District, and later, when the Lou Nuer tribe was incorporated to form what is now called Central Nuer District, to extend my enquiries further afield. Subsequently I had occasional opportunities of visiting other Nuer Districts and, although I was not then dealing with administrative affairs, I was able to check some of the information previously recorded. This Manual is, however, largely based on information from the Lak, Thiang, Gawaar and Lou tribes, and it must be appreciated that I have not been able to cover all the detailed variations of customary law which are to be found in so large an area. It would be a mistake to believe that every Nuer court would give judgement always and exactly according to the law I have described, even though there is great consistency in general principles—a consistency which is fortified by decisions made subsequently at meetings of the Nuer Council.

By ‘customary law’ I mean the body of ‘native law and custom’ which is administered in Nuer courts under the Chiefs’ Courts Ordinance of 1931.¹ Such terms appear frequently in the official records of Colonial Governments and in the Anglo-Egyptian Sudan, but they are something of an anomaly if any strict definition of the word ‘law’ is applied. I shall turn to this question of definition and the nature of Nuer law later. Here such terms are sufficient to indicate generally those customary rules governing human relationships which, among the Nuer, were in the past subject to sanctions too indeterminate to be called legal, but which are now applied with a consistency and organized force sufficient to justify the use of the word ‘law’ in a more exact sense.

Nuer courts are an innovation. Though there may have been irregular meetings of elders and ritual functionaries to decide matters of local concern, there was no organized political body which could enforce its decisions, even though other sanctions were sometimes strong enough to ensure conformity. Since public security was the primary aim of Government in the early years of the administration of Nuerland and breaches of security usually arose from disputes over matters which to us may appear comparatively trivial, the establishment of such tribunals was the first and perhaps most important move in the development of the Nuer towards management of their own affairs. It was certainly one which brought about the most profound changes, as will be seen later. In those early years most of the decisions were made by the District Commissioner himself, often with curious subsequent results, even though consultation with Nuer representatives was always an important feature of the procedure.

Now that these courts are rapidly developing in most Nuer areas and there are already the beginnings of a proper separation of the judiciary from the executive, the District Commissioner is called upon less frequently for personal arbitration in matters which should be settled with full reference to traditional rules and established precedents. From the time when I first visited Nuerland it was the agreed policy of the Government to interfere less and less in such matters, for not only was it the ultimate object of such courts to provide an indigenous mechanism whereby civil disputes might be settled amicably, but it was realized that the alien administrator can never achieve sufficient knowledge of the complexities of Nuer law to settle such disputes himself. Even if he succeeds in abandoning the conventions which spring from his own environment, he cannot see such cases from the same viewpoint as the Nuer. His only advantage is impartiality which alone is insufficient to justify interference. Criminal law is a different matter, for the concept of punishment was previously unknown to the Nuer, but even in this they must be made to settle their own affairs and the success with which their courts now deal with matters of criminal responsibility is a tribute to their growing appreciation of the need for internal security. I mention this with some feeling because in those early days it was a real struggle to resist the endless demands of individual Nuer for assistance over civil claims, a most trying experience which every District Commissioner who has served in the area knows. Nevertheless, at the present stage of development and perhaps for some years to come, the appeal from these courts is to the District Commissioner and the Governor of the Province. This being so, a knowledge of the basic principles of Nuer law is essential. It is necessary not only in connexion with specific cases, but also for the direction of policy in the development of the courts themselves. This need will continue even in the changing circumstances of the Sudan as a country whatever the nature of its constitution, and this book is written to meet it, as well as to record the evolution of a system of law.

It is sometimes argued that a government official, especially one with the executive powers of a District Commissioner in an undeveloped area, is an unsuitable person to carry out an investigation of this sort. His position may discourage sincere and truthful answers to his questions. I am aware of this argument and am prepared to accept the criticisms which may follow. Anyone who knows the close and positively wearing relationship of intimacy which exists between Nuer and their District Commissioners will, however, realize that the latter have many advantages. Having heard the details of a Nuer dispute over rights in cattle, and the same sort of dispute over and over again, he can get a pretty shrewd appreciation of the merits of the case and of the principles of law involved. Moreover, though the Nuer have a proper respect for the authority of their District Commissioner, no one could argue that this in any way curbs their blunt methods of expressing approval of his decisions, or more often disapproval. The relationship between the District Commissioner and the Nuer is peculiar and perhaps unique. He becomes a tribal institution adapted by the Nuer themselves to meet their own needs in rapidly changing conditions. He is addressed by his ‘bull-name’, greeted as an intimate by men and women of all ages, praised, but often severely criticized, by the chiefs. A Nuer ‘bull-name’ is a passport to the most intimate circles in any Nuer cattle camp or village. I often felt that it was I who had to struggle to maintain at least a vestige of the culture from which I had come.

In cases where my opinion was sought it is true that both sides would try to mislead me both on the principles of law and on the facts. I was fully aware of this. This approach did not apply to me alone; in nearly all legal disputes it takes a most exhausting process of interrogation amid a battery of lies before the truth is reached, for such is the technique of litigation in Nuerland. This is a necessary opening and not considered reprehensible in the circumstances; in other ways the Nuer are a surprisingly truthful people. It is thought fair tactics for the defendant in a civil case to throw out a screen of fabrications before giving way to the force of public opinion vested in the court, or, as is often the case, reaching some satisfactory compromise. A man must abandon the struggle only when a sufficient flow of ingenious argument has satisfied his honour. This procedure is not even confined to actions in the courts. The negotiations which take place over the payment of bridewealth, for example, are a battle of wits. The Nuer speak of it as a battle (kur) and regard it as one of the most exhausting trials of their lives. The idea of a battle is carried into the courts with vigour and in some respects the Nuer regard litigation as a stimulating pastime. The number of cases instituted without any hope of success is enormous, and even the deterrents applied by the Administration have not achieved any substantial reduction.

The sources of my information are therefore from the courts themselves; a close analysis of several thousands of actual cases. These were recorded when I acted as clerk to the appeal courts, or taken from court records. I had the benefit of Professor Evans-Pritchard’s account of the social structure and political institutions of the Nuer¹ and more recently his writings on kinship and marriage.² In fact he has mentioned, though not always in detail or in the same context, nearly all the subjects recorded in this Manual and since I have rarely had occasion to disagree with the facts or his interpretation, much may appear merely repetitive. My work in the field, however, was carried out independently and largely among different Nuer tribes. Moreover his observations were made of the Nuer as they were some twenty years ago, and since then there have been many profound changes as the result of administrative action. This is especially true in the sphere of customary law. Further, it has been my object to describe only those aspects of Nuer life which are more or less concerned with disputes heard by Nuer courts, though it is obviously difficult to isolate specific aspects from the general background.

This Manual of Nuer Law is not a code or a text-book in which the precise answer to any legal situation may be found. The fine and now rapidly changing distinction between law, custom, convention, and usage will not allow any such precise description. It is rather a study of basic principles as they are now, exemplified by actual examples, as well as a study of a most complex system of law in the process of development. It is, however, primarily intended for the administrator. It is also intended to provide further material for those whose interests lie in a more general and theoretical study of ‘primitive law’, although I have myself rarely attempted to interpret that material in terms of comparative jurisprudence.

These two objectives are not entirely compatible and involve difficulties of presentation. I must therefore seek indulgence in advance for those passages which may appear abstruse and far removed from the practical problems which face the administrator and for those passages which may appear self-evident or over-simplified to the jurist and the anthropologist. Whether the book will be of value in the administration of Nuerland in the near future or in the self-governing Sudan must be judged by posterity. It is dedicated with affection to the Nuer people themselves in the hope that they may find security and fulfilment in the direction of their own affairs with due regard for their traditions.

Presentation and Orthography

Since it is not easy to isolate one aspect of the social and political affairs of the Nuer from another, the system of classification is arbitrary and not based on any conventional legal form. There are also obvious repetitions when a particular institution or concept is examined in different contexts. I begin with a summary account of the social and political structure of the Nuer for the benefit of those who have not studied previous literature on the subject, and this inevitably leads to generalizations which are not equally valid throughout the whole area. The Nuer are, however, sufficiently homogeneous to make generalizations at least possible. For further information the reader may turn to the publications listed in the Bibliography. Chapter II concerns homicide and bodily injuries which are not at all uncommon in Nuerland even today. Chapter III concerns marriage, the means by which it is achieved, the rights and duties which arise and which are often in dispute before the courts. Part II of the same Chapter concerns the dissolution of marriage, a process which is unfortunately more common nowadays than it was in the past. Chapter IV concerns the violation of rights in women, also a common cause for litigation. In Chapter V I have attempted to outline some of the main features of Nuer concepts of ownership and corporeal property which are at present no real problem, but which may well need a more complex and precise system of law in the future. In Chapter VI I have attempted, very briefly, to describe the part played by religion as a sanction for social conformity, and the functions of the various religious and magical experts, some of which are recognized in the administration of tribal law and custom. In Chapter VII I have attempted to analyse in very simple terms the nature of Nuer customary law as it was in the past, and the way in which it is developing under modern conditions. A general index is included, but for easy reference a detailed list of contents is given at the beginning.

For the sake of consistency I have, with few exceptions, followed the orthography adopted by Professor Evans-Pritchard. The full range of phonetic symbols has not been used, but the Nilotic ch or sh sound is rendered as c—a common convention even in administrative documents—and gh stands for the phonetic γ. Other forms of spelling are taken from A Nuer-English Dictionary, by Fr. J. Kiggen. After initial explanation, I have often had to employ Nuer terms in later passages without further definition simply because such terms have a complicated meaning for which there is no succinct English translation. To assist the reader a glossary of these terms is included among the appendixes.

Note on Cattle Terminology

Nuer law is principally concerned with rights and claims in cattle, and it will be as well, even at this early stage, to give some description of Nuer cattle terms. Cattle are referred to generally as ghok. The ghok thunge—the indemnity paid to a dead man’s kin by his slayer— simply means the ‘cattle of compensation’, the ghok gwande are the ‘father’s ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword by Professor E. E. Evans-Pritchard
• Acknowledgements
• Illustrations
• Chapter I. Introduction
• Chapter II. Homicide and Bodily Injuries
• Chapter III. Marriage and Divorce
• Chapter IV. The Violation of Rights in Women
• Chapter V. Property Rights
• Chapter VI. Religious Concepts in Relation to Law
• Chapter VII. The Nature of Nuer Law
• Appendix I. Nuerland: Populations and Area
• Appendix II. Chiefs’ Courts Ordinance, 1931
• Glossary
• Bibliography
• Index