Changing Law in Developing Countries

293 Pages·2021·15.399 MB·English

by  J. N. D. Anderson (editor)

STUDIES ON MODERN ASIA
AND AFRICA
Volume 1
CHANGING LAW IN
DEVELOPING COUNTRIES

CHANGING LAW IN
DEVELOPING COUNTRIES
Edited by
J. N. D. ANDERSON
Firstpublishedin1963byGeorgeAllen&UnwinLtd
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DOI:10.4324/9781003245674
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CHANGING LAW IN
DEVELOPING COUNTRIES
EDITED BY
J. N. D. ANDERSON
Professor of Oriental Laws, Head of the
Department af Law at the School of
Oriental and African Studies and Director
of the Institute of Advanced Legal Studies
in the University of London
LONDON
GEORGE ALLEN & UNWIN LTD
RUSKIN HOUSE MUSEUM STREET
FIRST PUBLISHED IN 1963
This book is copyright under the Berne Convention.
Apart from any fair dealing for the purposes of
private study, research, criticism or review, as per"
mitted under the Copyright Act 1956, no portion
may be reproduced by any process without written
permission. Enquiry should be made to the publishers.
© George Allen & Unwin Ltd, 1963
PRINTED IN GREAT BRITAIN
in II on 12 point Fournier type
BY UNWIN BROTHERS LTD
WOKING AND LONDON
FOREWORD
The present volume finds its genesis in a series of lectures under the
same general title given during the academic year This series,
in its turn, was initially built up round the three University Lectures
which Sir Kenneth Roberts-Wray was invited to give, under the
auspices of the Board of Studies in Laws of the University of
London, at the School of Oriental and African Studies; for it seemed
appropriate to make these University Lectures the nucleus of a series
of fortnightly lectures, extending throughout the session, in which
members of the Department of Law at the School joined with distin-
guished guests in providing what might be regarded as somewhat
analogous, within the field of their own particular interests, to the
series on Current Legal Problems which University College has
sponsored for so many years. This series seems to have met a distinct
need, and to have aroused a sustained interest. Such, moreover, is the
current importance of this subject that the decision has been taken to
reproduce the papers in printed form—together with two further
papers on the same subject—so that they may reach a wider audience.
In the present volume chapters one, three and four represent Sir
Kenneth Roberts-Wray's three lectures, on 'The Authority of the
United Kingdom in Dependent Territories', 'The Legal Machinery
for the Transition from Dependence to Independence', and 'The
Independence of the Judiciary in Commonwealth Countries', respec-
tively. Sir Kenneth's experience as Legal Adviser to both the Colonial
Office and the Commonwealth Relations Office during many years of
unprecedented development gives him unique qualifications to provide
an authoritative treatment of these subjects. It is particularly fitting,
therefore, that his successor at the Colonial Office, Mr J. C. McPetrie,
should contribute a 'Survey of Constitutions Drafted at the Colonial
Office since 1944' as chapter two.
An outstanding characteristic of many of these constitutions is the
inclusion, and often the entrenchment, of fundamental rights, so
chapter five represents a study of this subject by Professor A, Gledhill,
whose work in Constitutional Law has frequently centred round
this topic, particularly in its context in the Indian Subcontinent. It
was appropriate, therefore, to follow up this more general treatment
of such rights by Sir Orby Mootham's University Lecture on 'Consti-
tutional Writs in India'—a subject for which his previous appointment
as Chief Justice of the Allahabad High Court gave him an abundance
7
CHANGING LAW IN DEVELOPING COUNTRIES
of personal experience. And the more general part of this volume is
fittingly concluded by a historical examination of the phrase ' Justice,
Equity and Good Conscience* provided by Dr J. D. M. Derrett, whose
legal interests cover a very wide field.
Next the volume turns more particularly to Africa. Sir Sydney
Littlewood, previously President of the Law Society, provides a
chapter on 'The Legal Profession in African Territories'—a subject
which he has very much at heart; for my own contribution I chose
the subject 'Islamic Law in Africa: Problems of Today and Tomorrow';
Dr R. Y. Hedges, formerly Chief Justice of the Western Region of
Nigeria, has provided a study of 'Liability under the Nigerian Criminal
Code'; Dr A. N. Allott, a pioneer in many aspects of research in
African law, has tackled the subject of 'Legal Development and
Economic Growth in Africa'; and Mr J. S. Read, another specialist in
African law, has contributed a paper on 'Women's Status and Law
Reform'.
Finally, our attention is directed again to Asia. Mr N. J. Coulson,
whose speciality is Islamic Law, discusses the recent legislation on
Family Law in Pakistan, while Mr H. McAleavy, whose particular
interest is Chinese Law, has contributed a paper on 'Chinese Law in
Hong Kong: The Choice of Sources'.
No attempt has been made radically to change the style of these
lectures as they were given, since it was felt that any resulting gain
would be more than matched by a corresponding loss.
J. N. D. ANDERSON
8
CONTENTS
FOREWORD page 7
The Authority of the United Kingdom
in Dependent Territories
SIR KENNETH ROBERTS-WRAY II
Survey of Constitutions Drafted at the
Colonial Office since 1944
J. C. MCPETRIE 29
The Legal Machinery for the Transition
from Dependence to Independence
SIR KENNETH ROBERTS-WRAY 43
The Independence of the Judiciary in
Commonwealth Countries
SIR KENNETH ROBERTS-WRAY 63
Fundamental Rights
PROFESSOR A. GLEDHILL 8l
Constitutional Writs in India
SIR ORBY MOOTHAM 97
Justice, Equity and Good Conscience
DR J. DUNCAN M. DERRETT 114
The Legal Profession in African
Territories
SIR SYDNEY LITTLEWOOD 154
Islamic Law in Africa: Problems of
Today and Tomorrow
PROFESSOR J. N. D. ANDERSON 164
9