CEU Electronic Theses and Dissertations, 2019
| Author | Gebeye, Berihun Adugna |
|---|---|
| Title | Legal Syncretism: A Theoretical Framework for Understanding African Constitutionalism |
| Summary | This dissertation provides a theoretical framework to better understand and explain African constitutionalism in its normative configurations and empirical manifestations. Prior studies mainly approach African constitutionalism through either legal centralism or legal pluralism. While the former understands and explains African constitutionalism from the perspective of the state, the latter sees it from the lens of the state and society. On the one side of the spectrum, the legal centralist approach fails to account to the empirical realities of the state and ignores the role and function of indigenous laws in the constitution and operation of the African state. On the other side of the spectrum, the legal pluralist approach misinterprets the nature of the African state and its configuration with the society. By situating the phenomenology of African constitutionalism in the experiences, interactions, and contestations of power and governance in precolonial, colonial, and postcolonial times, and by building on religious studies and anthropology, this dissertation introduces legal syncretism as a theoretical framework for a better understanding of African constitutionalism. Legal syncretism captures and explains the transformation of African constitutionalism from precolonial times to the present, and the consequent constitutional designs and practices in theoretically defensible and practically sound ways. On the one hand, legal syncretism explains how precolonial constitutionalism in Africa came to an end with the entry of international law and colonial laws in the late nineteenth century, how colonial constitutionalism reconfigured and transformed precolonial constitutional rules and practices, and how postcolonial constitutionalism grapples with the continuous affirmation and, at the same time, negation of liberal constitutionalism. On the other hand, legal syncretism offers a novel theoretical framework to look at the nature of the African state, its vertical and horizontal government organizations, and its conception of constitutional rights. Along with these constitutional developments and practices, legal syncretism presents the nature, travails, pathologies, and incremental successes of African constitutionalism in time and space more clearly. By taking federalism, the executive, and women’s rights as themes of analysis and Nigeria, Ethiopia, and South Africa as comparative case studies, this dissertation tests and demonstrates how legal syncretism animates and permeates African constitutional designs and practices. By doing so, it shows the convergences and divergences between African constitutionalism and liberal constitutionalism. By transcending the impasse between legal centralism and legal pluralism, legal syncretism not only offers a better theoretical framework to understand the nature, identity, and manifestations of African constitutionalism, but it also provides some useful theoretical and practical insights for its assessment and improvement. |
| Supervisor | Möschel, Mathias |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2019/gebeye_berihun.pdf |
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