2. The interpreter – mediating urbanity

To enter Elias's urban, transcontinental world, I should like to turn to those great Nigerian novels of the 1950s and 1960s by the likes of Achebe, Ekwensi, and Soyinka – whether granted the special status of inclusion in the Heinemann African Writers Series or notFootnote ⁸ – whose protagonists were so often educated young men and women just a step from their original homes in the hinterland but whose urban ways had removed them entirely from their pasts. Amusa Sango of Cyprian Ekwensi's People of the City, the trumpet-playing, struggling journalist writing for a fictionalized West African Sensation, experiences sharp disappointment visiting the young woman of his village he expected to marry and ‘cursed himself for his city background which had taught him to appreciate the voluptuous, the sensual, the sophisticated in woman’.Footnote ⁹ The young urban set of Soyinka's The Interpreters is full of tensions with their home; Dehinwa's mother bursts into her apartment at midnight and explodes, ‘I haven't worked and slaved to send you to England and pulled strings to get you a really good post nearly in the Senior Service only to have you give me a Hausa grandson.’Footnote ¹⁰ And the protagonist of Achebe's No Longer at Ease returns from England with his ‘philosopher's stone’ of a university degree to occupy a ‘European post’ and a world of ‘been-tos’, that is, Nigerians having been to England – and yet they have all sorts of incursions into their lives by their home villages and have to live up to the expectations of their home villages' associations in the city. It is a telling reversal when Achebe's protagonist thinks of his English boss and ‘[w]ith a flash of insight remembered his Conrad which he had read for his degree. “By the simple exercise of our will we can exert a power for good practically unbounded”. That was Mr Kurtz before the heart of darkness got him.’Footnote ¹¹ If magnified by the personal desperation of their characters, Ekwensi, Soyinka, and Achebe are clearly tapping into a similar environmental experience as interpreters unable fully to translate.

T. O. Elias was, of course, a generation older than these urban protagonists of the Nigerian novelists, but he too lived in a complicated ‘translation zone’.Footnote ¹² To contextualize Elias within the experience of the educated West African elite, I would like to dwell on the oscillating identity of that elite during both the colonial period and the years following independence. And I would like to begin with Philip Zachernuk's subtle narrative of the various twists and turns in the fate of the members of that elite as they shifted in the focus of their identity.

Zachernuk begins his story in the period ending in the 1880s with the so-called ‘black Englishmen’, products of the mission schools and the increase of clerical jobs with the expansion of trade. They represented ‘a new breed drawing on diverse sources but aspiring to be neither wholly black nor wholly English. In certain contexts they saw themselves as outsiders, like the British, bringing illumination to Africa and Africa to illumination’.Footnote ¹³ Their identity was ‘always anchored in a clear sense of the medial position and mediating role of the intelligentsia’.Footnote ¹⁴ In the period prior to the First World War, Zachernuk describes members of the elite as increasingly immersed in a ‘formal colonial order’ that institutionalized the ‘economic, political, and ideological subordination of Africans’.Footnote ¹⁵ Indeed, with the growth of scientific racism, ‘they sought inspiration and endorsement from certain British colonial critics and African-American intellectuals’.Footnote ¹⁶ After this move to an Atlantic discourse, Zachernuk describes numerous twists and turns, a Nigerian move inward in the 1930s, and further inward to Yoruba and Ibo identities, as well as various pan-African turns. Ultimately, this is an uncomfortable tale with a sense of never being at home – the strenuous attempts at mediation result in alienation and ‘a sense of unease’ or ‘enduring unease’.Footnote ¹⁷ Since they are always mediators of one sort or another, their various acts of translation are finally always just that – translation.

This is a story of unease, and that unease is increased by the tensions within the elite. Indeed, the brief summary is necessarily a shorthand for a story with many more turns, each suggesting new rifts within the class. Perhaps an extreme example, E. A. Ayandele delivered a scathing attack in 1974 on the educated class in his The Educated Elite in the Nigerian Society.Footnote ¹⁸ He chose to title his opening historical chapter ‘Deluded Hybrids’ and left no generation unscathed, so that of the mid-twentieth-century elite he asserted, ‘The essence of the matter is that, even in those moments when they were employing the vocabulary of nationalists, the educated elite were, inescapably, quintessentially collaborators in the establishment of British imperialism and colonial rule in Nigeria.’Footnote ¹⁹ After independence he blamed the educated elite largely for regional confrontation – it had ‘sown the wind of tribalism, of secession, of personal rivalries, of greed, of exploitation of the masses for their personal ends’.Footnote ²⁰ Ayandele may be an extreme example, but the rifts within the elite were multiple. Robert July tells of the conference held in the Amphithéâtre Descartes of the Sorbonne in 1956, sponsored by the journal La Présence africaine, when the Martinique poet Aimé Césaire delivered one of the signature blasts of mid-twentieth-century négritude and managed to upset the contingent from the United States, including the novelist Richard Wright, who was quite open in his response.Footnote ²¹ The fracture July so vividly captures occurred in a mostly francophone setting in Paris and was fought out mostly with a smattering of US representatives, but the explosions at the Sorbonne reverberated in British West Africa.

If there were significant rifts within the Nigerian educated elite, a standing source of tension was with traditional African leadership, cast as a contest between modernity and tradition. And, typically, the British turn to ‘indirect rule’, making use of traditional leaders as surrogates to administer colonial societies, was identified as a source of frustration for an educated elite overlooked in the use of the ‘natural leaders’. Significantly, Elias himself noted that an ‘important feature of the Indirect Rule system has been that the chief's council had everywhere in the British African dependencies no place for non-traditional elements such as the intellectuals and others who did not belong to any of the traditional families from among whom the traditional councillors were chosen’.Footnote ²² As numerous scholars have suggested in recent years, both ‘modern’ and ‘traditional’ were highly constructed realities. Terence Ranger, in the volume he edited with Eric Hobsbawm, The Invention of Tradition, observed that ‘[t]he colonial administration [in the 1930s] now favoured a policy of indirect rule and this gave an opening for the élite inventors of tradition.’Footnote ²³ Invention aside, the move to indirect rule created enormous tension between an urban elite and the ‘natural rulers’, and it is part of the story of the rifts experienced by the educated elite that clearly touched Taslim O. Elias.

After his name, ‘T. Olawale Elias, Q.C.’, on the title page of Government and Politics in Africa, his affiliations read, ‘Of the Inner Temple, Barrister-at-law; Federal Attorney-General and Minister of Justice for Nigeria; Formerly a Governor of the School of Oriental and African Studies, University of London; Visiting Professor of Political Science in the University of Delhi (1956)’, and after his name on the title page of Nigerian Land Law, ‘Q.C., B.A., LL.M., Ph.D., LL.D. (Lond.), HON. D. LITT. (Ibadan), LL.D. (Dakar), Federal Attorney-General and Commissioner for Justice in Nigeria; Dean, Faculty of Law, University of Lagos’. The ‘Biography’ in the front matter of the book of essays published in his honour in 1992 provides a long list of Elias's various posts, research fellowships, honorary degrees, international activities, government and public offices, and conferences in which he served as ‘Rapporteur’ or ‘Chairman’, or ‘led the Nigerian Delegation’, but it is already clear just on those two title pages that Elias was at the pinnacle of the Nigerian educated elite for decades. A friend of mine who grew up in Nigeria and currently teaches in a US law school told me a story of Elias, as an ‘old boy’ of King's College, Lagos, presenting him an award as a student. Elias was actually an ‘old boy’ of another elite Nigerian secondary school, Igbobi College, but the impression he made at the oldest of such elite secondary schools was a sort of laying on of hands. In his essay on the invention of tradition in colonial Africa, Terence Ranger pointed out that the core invented traditions for the colonizers of Africa, which had an immense impact on the African population, were those of the gentry and the professions, and he lists particularly the traditions of ‘the public school, the regiment, the university’.Footnote ²⁴ The ‘neo-traditions’ of the educational institutions and of governance were of great importance to Nigeria's educated elite, and it is clear that Elias had a great deal invested in them.

One can discern part of that investment in the gentility, indeed the tameness, of Elias's intellectual style. In writing The Groundwork of Nigerian Law in the 1950s, it was, of course, not inconvenient for this London-trained Nigerian lawyer during the waning years of colonial rule to flatter the wisdom of ‘British State practice’ for ‘respect[ing] the indigenous system of observed customary rules or, at least, as many of these as are not “repugnant to equity, justice and good conscience”’,Footnote ²⁵ while at the same time advocating the legitimacy of Nigerian customary law. Basically, the system in place worked, with some minor proposals for reform set at the end of the book. Three decades later, when Elias was the sitting president of the World Court, he wrote a chapter on ‘Judicial Process and Legal Development in Africa’ for a volume entitled Africa and the West: The Legacies of Empire.Footnote ²⁶ Granted, the title of the original conference that took place in 1982 did not yet include the subtitle of the book, ‘The Legacies of Empire’.Footnote ²⁷ Nevertheless, it is fascinating that Elias took as his subject matter primarily a very technical analysis of how the common law of former British colonies in Africa worked and the interplay with English case law, including, for example, the extent to which English decisions made after the ‘reception date’ of English law in African states were binding on African courts. This was an exercise in Commonwealth jurisprudence that barely differentiated Africa from Australia, except that, as he observed, the African judge faced a more complex challenge. This, then, is Elias's contribution to the volume on ‘Africa and the West’ with no hint of a problematic relationship. Just as the Elias of Groundwork advocates the legal status quo, this is a very tame Elias.

Elias's language is typically also tame, such as his genteel adoption of the passive voice, ‘it is submitted’, to reflect his views.Footnote ²⁸ Although we know that he was present at various acts of creation, such as various watershed pan-African conferences, he is nowhere in sight as he describes those developments. When Elias tells us in a footnote that ‘[t]he author was appointed one of the draftsmen of the Conference decisions and resolutions’,Footnote ²⁹ it serves as a reminder that he probably had prominent roles in many of the other pan-African and UN conferences he describes. And in venturing his opinions, he was apt to adopt formulations along the lines of ‘one would have liked to see the subject accorded greater prominence’, ‘[i]t can be said in all candour’, ‘one makes bold to suggest’ and the like.Footnote ³⁰ But as we have already seen, with his swipe at ‘those who now proudly don the traditional costumes in and outside Nigeria’, Elias was quite capable of wandering from the overly polite. Nevertheless, we should understand Elias as an establishment figure. He was the consummate insider, but as an insider of his generation who had been called to the bar at the Inner Temple in 1947 he occupied a liminal position at the intersection of multiple binary oppositions, between colony and metropole, modern and traditional, nation and ethnic, nation and pan-Africa, and nation and race.

Elias is himself quite clear about the significance of the educated elite for the national development of Nigeria. In sketching the history of the independence movement in Africa, he wrote, ‘The leaders of the National Congress of British West Africa were the first conscious nationalists who, whilst being conversant with some of the best that Western Europe then had to offer in education and culture, were also imbued with a sense of mission for the resuscitation of the best in the past of West Africa’.Footnote ³¹ Also in Elias's 1956 University of Delhi lectures, the London-based West African Students Union is given prominence:

Nkrumah studied law at London just as Elias had, with his string of law degrees, and theory was the entry into practice.

For Elias, it might be better to describe theory and practice as being in constant symbiosis. That was true of both his biography – the overlapping of his numerous academic and government posts – and his writing. Indeed, his writing is characterized by a pragmatic instrumentalism and by a form of scientism. He was convinced of the importance of ‘scientific study’, so that he would insist about the ideal legal educational programme that

For him, ‘Only a systematic course of training in the intricacies of legal science and in comparative jurisprudence, over and above the usual run of subject courses, would equip the African lawyer for the novel task confronting him in his society.’Footnote ³⁴

For Elias, this was not only a matter of legal education but also of legal and political investigation, and for this he would often turn to the work of anthropologists. Today's anthropologists are very conscious of the imperial aspect of the discipline's history – the anti-racism of a Franz Boas aside – and often assert, along the lines of Duke University's Charles Piot, that ‘Anthropology's complicity with imperial culture, I would argue, lay more in its ties to an epistemology of the Enlightenment, and thus in its colonizing theoretical gaze.’Footnote ³⁵ The colonizing theoretical gaze did not, of course, prevent generations of Nigerians from gazing themselves. The early Nigerian nationalist, Nnamdi Azikiwe – after whom the ‘Zikist’ movement would be named – was stymied in his attempt to launch an anthropological career in the 1930s. After being invited by Bronislaw Malinowski to join the British Royal Anthropological Society, Azikiwe's plans to do Nigerian fieldwork for the London-based International African Institute were blocked because of racist concerns about an African working unsupervised.Footnote ³⁶ But by the time Sam Epelle published his optimistic The Promise of Nigeria in 1960 on the eve of independence, he could talk of the numerous members of provincial or village ‘unions’ going into anthropological work.Footnote ³⁷ And Elias himself in the early 1950s had a post at Manchester University in law and social anthropology. For Elias, African Political Systems, the collection edited by two eminent anthropologists, M. Fortes and E. E. Evans-Pritchard, in 1940,Footnote ³⁸ was an important textbook, so that in Africa and the Development of International Law, he would start a sentence with ‘As Fortes and Evans-Pritchard have observed’, and another with ‘As Fortes and Evans-Pritchard have put it’.Footnote ³⁹ And in Government and Politics in Africa, he bemoans the fact that, ‘[u]nfortunately, African Political Systems has little to say, apart from the chapter on the Tallensi by Fortes, about the political organisations of West African societies.’Footnote ⁴⁰

In comparison with his admiration for the Fortes and Evans-Pritchard book, Elias showed very little patience for Henry Sumner Maine and his epigones, with their banalities about ‘village communities’. ‘The unit of land-holding in Nigeria, as indeed throughout West Africa’, Elias asserted in Nigerian Land Law,

Bad anthropology was just bad anthropology.

But perhaps Elias's most interesting discussion of anthropological and sociological studies appears in his University of Delhi lecture on ‘The Participation of the Institutes of Social, Cultural and Legal Studies in the Development of Africa’, which he opened by observing,

Only after the First World War, Elias observed, did an interest in African society and culture arise. Elias was clear about the administrative instrumentality of this endeavour: ‘Anthropology was in the 1920's and 30's soon called to the service of the administration, and the gain was great for the deeper knowledge and appreciation of African mores and ethos.’Footnote ⁴³ Quite pointedly, ‘Government anthropologists were appointed to study selected peoples and areas, especially those in which policy mistakes had been made or the people had failed to react normally to the administration.’Footnote ⁴⁴ Make no mistake, for Elias the result of these studies is ‘serious knowledge about Africa’.Footnote ⁴⁵ But here Elias begins to distance himself from the disciplines in their present state:

Elias is quite clear about the specialness of Africa. ‘The problems of Africa’, he asserts, ‘are in many ways sui juris, if not unique.’ Then, as the political scientist talking to a predictably appreciative Indian audience, he observes that

In the run-up to decolonization and independence, Elias placed a good deal of practical emphasis on a sound understanding of African society. On the final page of the lecture, he warned that

If the imprimatur of the English educational institutions was so important to the Nigerian educational elite, the English content had got a bit much. Sam Epelle was quite clear in The Promise of Nigeria about his country's ‘salaried class’: ‘its members have adopted European ways: their houses are furnished in the European style, most times they eat European food, they listen to the radio and watch television, read newspapers avidly, hold membership cards in sports, social and church clubs, organise literary societies and old boys' associations’.Footnote ⁴⁹ He describes this class without criticizing its attraction to the European, but he hopes deeply for a change in Nigerian education – to ‘reduce the quantity of snow, the Battle of Hastings, the leg o' lamb and autumn leaves that clog the textbooks’.Footnote ⁵⁰ Chinua Achebe looked back at his own education with all that ‘Shakespeare, Milton, Defoe, Swift, Wordsworth, Coleridge, Keats, Tennyson, Housman, Eliot, Frost, Joyce, Hemingway, Conrad’.Footnote ⁵¹ But particularly striking in Achebe's account was his encounter with Joyce Cary's Mister Johnson and Cary's description of a party given by Mr Johnson, ‘the demonic appearance of the naked dancers, grinning, shrieking, scowling, or with faces which seemed entirely dislocated, senseless, and unhuman, like twisted bags of lard, or burst bladders’. Achebe asked, ‘Haven't I encountered this crowd before? Perhaps, in Heart of Darkness, in the Congo. But Cary is writing about my home, Nigeria, isn't he?’Footnote ⁵² Achebe's shock finds reverberation in Dorothy Hammond and Alta Jablow's The Africa that Never Was, which ‘shows how a body of fantasy and myth about Africa developed into a tradition with a vast storehouse of lurid images to which writers went again and again through the centuries to draw “material” for their books’.Footnote ⁵³ As mentioned above, Elias warns of the Africa missed by Western social science, for neither Marx nor Mill would prove very helpful in understanding African society and culture. Nor would Maine, with his drivel about ‘village communities’. Nevertheless, Elias bemoans the fact that there is just not more of the type of serious work done by the scholars of Fortes and Evans-Pritchard's book to understand more fully the political and legal systems of Nigeria. He is clearly engaged in their form of science.

3. From Timbuktu to here – Elias and the African past

‘There was’, Philip Zachernuk has observed, ‘a mad rush after World War II both to create African nation-states and to invent national histories.’Footnote ⁵⁴ Indeed, Africans seemed to be starting from a void. As Robert July has pointed out in the context of K. O. Dike's attempt to use oral evidence to write his dissertation for the University of London, ‘It was widely felt among British academics that there was no substantial, credible history to be had from the preliterate societies of Africa, which, in any case, were far from the mainstream of important developments in the world.’Footnote ⁵⁵ There was, in fact, a notion of a great unchanging, static past. Such views were widespread, so that Basil Davidson quips about a Hugh Trevor-Roper BBC lecture, ‘How odd that the Regius Professor of History at Oxford University. . . should have told us that Africa's history was only a tale of barbarous tribal gyrations.’Footnote ⁵⁶ Various fantasized African pasts filled the void. Most dramatic was the wave of Egyptianism led by the Senegalese Egyptologist Cheikh Anta Diop, who came out in 1954 with Nations nègres et culture, with its argument that much of Europe's culture derived form an Africanized Egypt. In a role reversal, Egypt had effected a civilizing mission among the nomadic tribal Greeks, and much that was understood as Greek innovations – from Platonic idealism to the beginnings of Western science – all derived from Egyptian sources.Footnote ⁵⁷

Elias was engaged in his own constructions. Indeed, he articulated a particularly fantastical history when he ventured in his University of Delhi talks that observable similarities between inhabitants of southern areas of the Indian subcontinent and

He alternatively ventures that

but he has left us with the impression that massive continental movements may have been merely prehistorical, that is, after the appearance of Homo sapiens.Footnote ⁵⁸ Elias was using this particular fantasy to launch into his lecture on ‘Afro-Indian Relations both in Africa and in India’, in which he would talk on subjects such as Gandhi's Indian National Congress in South Africa remaining ‘separate and isolated from the African National Congress’ and the prejudice faced by African students in India in the 1950s.Footnote ⁵⁹

The deployment of the Gregorian geographic theory was an odd departure for Elias, who mostly looked to more reliable historical narratives to identify a usable African past. In his opening essay for Africa and the Development of International Law, ‘The Contribution of Africa to International Law’, Elias marshals the history of the great medieval African kingdoms, such as Songhai and Timbuktu, to show significant past African participation in international commerce and, consequently, in international law. He opens his essay by announcing, ‘If we are to grasp something of the significance of Africa in current international affairs, we must begin with a brief account of the role which different parts of the so-called Dark Continent played since recorded history in their internal as well as their external relations.’Footnote ⁶⁰

To tell this story Elias relied heavily on E. W. Bovill's The Golden Trade of the Moors and tells us, ‘It is convenient to begin with the great city of Carthage.’Footnote ⁶¹ To lend credibility to his narrative about the trans-Saharan trade, Elias is quick to summon reliably classical sources: ‘To Herodotus we owe this account of the so-called “silent trade” between the West Africans and their customers.’Footnote ⁶² And he will tell us that when the Romans razed Carthage, ‘they destroyed a Punic inscription in the temple of Chronos which commemorated the famous Hanno expedition to West Africa, but which had been copied by Greeks and Romans and thus preserved for posterity, albeit in a mutilated and corrupt form’.Footnote ⁶³ Having established the early history of the trans-Saharan trade, Elias is ready for his main story:

The central narrative is about ‘the political, the commercial and the diplomatic history of the more significant of African States and kingdoms during the Middle Ages’, for it is ‘only against this background that Africa's place in international law and relations can be understood’.Footnote ⁶⁵

Elias will dwell on the splendours of these kingdoms. He will, for example, tell us of Kumbi, the capital of Ghana:

And Elias repeats the tale of Mansa Musa of the Mali empire, whose fame in the early fourteenth century ‘spread to Europe and the Middle East, largely through his pilgrimage to Mecca’. He tells us that the ‘conspicuous display of wealth caused such a sensation in Cairo and other places that it resulted in a lowering of the local market value of gold’.Footnote ⁶⁷ It is, however, significant that Elias has decided not to indulge in quite as much sensational detail as Bovill, who tells us not only about the hounds with silver and gold bells in the Kumbi court but also about ‘ten horses in gold trappings’, the pages behind the throne ‘holding shields and gold-hilted swords’, and the ‘sons of vassal princes, magnificently attired and with ornaments plaited into their hair’,Footnote ⁶⁸ and relates that ‘Mansa Musa, mounted on horseback, was preceded by 500 slaves, each carrying a staff of gold weighing 500 mithqal’.Footnote ⁶⁹ In part, Elias has chosen to depopulate Bovill's story of the slaves and courtiers not to distract from his central commercial and political narrative with the ornamental use of humanity.

Elias's charge here is to establish the parallel of African and European kingdoms and to that effect quotes Basil Davidson: ‘It is probably fair to say that the history of kingship in the tropical regions, as distinct from the Nile Valley, Ethiopia and the Maghreb, begins little or no later than that of Anglo-Saxon and Frankish Europe’.Footnote ⁷⁰ This brings Elias to the international relations attached to the commerce of the great African kingdoms so that, for example, ‘[a]t the same time that the Portuguese sent embassies to the King of Timbuktu they also sent an embassy to Mossi’.Footnote ⁷¹ He tells us also of the fourteenth-century diplomat at the court of Delhi as well as other exchanges of diplomats, and ventures that ‘[s]ince their civilization knew the art of writing, almost entirely in Arabic characters, there must have been some interesting treaties now lost to us’.Footnote ⁷² This venture aside, Elias can conclude that his ‘random selection of medieval African empires and kingdoms, together with the almost incidental references to their interrelations between them is some evidence of the high degree of knowledge and the practice of diplomatic law as then known in Europe and Asia’.Footnote ⁷³

In summoning up his image of the great African kingdoms, it is understandable that he did not repeat Bovill's characterization of the spiritual groves of Ghana's Al-Ghaba: ‘Here dwelt the fetish priests who tended the national gods and doubtless practiced the gruesome rites which have always characterized West African fetishism.’Footnote ⁷⁴ Nor would it be touched by the brutal violence of these early kingdoms depicted in Yambo Ouologuem's novel of 1968, Bound to Violence.Footnote ⁷⁵ Of particular interest is Elias's characterization of the ‘modest seats of learning’ of the African states as opposed to the statement found in C. R. Niven's A Short History of Nigeria – a small textbook of multiple editions over decades that Elias referenced – that ‘[a] university was established in Timbuktu to which men of the highest learning and culture were attracted’.Footnote ⁷⁶ Perhaps it was the Islamic basis of that scholarship that made it less attractive for Elias in telling his narrative. In essence, it is part of Elias's emphasis on the commercial, political, and legal and their interrelationship – and one that seems throughout (except Elias's need to relate Mansa Musa's hadj) to be mostly devoid of religion and ritual. It is significant that this commerce and travel were so important a part of Elias's past African world. In essence, Elias anticipated anthropologist James Clifford's extended cogitations about the supposedly immobile ‘native’ as in constant commerce and transit, the ‘traditional, rural village as airline transit lounge’.Footnote ⁷⁷

4. The invention of customary law – translating the rural

Africanists in recent decades have increasingly recognized the ‘traditional’, ‘customary’, and ‘tribal’ as essentially modern constructions. Terence Ranger asserted in his 1983 essay that ‘British administrators set about inventing African traditions for Africans. Their own respect for “tradition” disposed them to look with favour upon what they took to be traditional in Africa. They set about to codify and promulgate these traditions, thereby transforming flexible custom into hard prescription.’Footnote ⁷⁸ Ranger identified the view from the metropole that ‘African society was profoundly conservative – living within age-old rules which did not change; living within an ideology based on the absence of change; living within a framework of clearly defined hierarchical status’.Footnote ⁷⁹ As an example of the static African past, Robert July quotes William Fagg, the curator of African art at the British Museum, who bemoaned the fact that the past was on its way out: ‘We are in at the death of all that is best in African art.’Footnote ⁸⁰ This same view could equally come from the modern African state, so Andrew Apter tells of the claims about the Nigerian festival, ‘FESTAC '77’, ‘of resurrecting a precolonial tradition through its “staged creation of a mythic, detemporalized past”’.Footnote ⁸¹ And Charles Piot, in his study of the Kabre society of Togo, has instructed us that ‘apparently traditional features of Kabre society are in fact “modernities”. . . forged during the long encounter with Europe over the last three hundred years and thus owe their meaning and shape to that encounter as much as to anything “indigenous”’. Indeed, he tells us, the ‘elements of “tradition” – the ritual system, the domain of gift exchange – have flourished and intensified over the last thirty years’.Footnote ⁸²

As for the ‘tribal’, Ranger has observed that

Appiah, if perhaps somewhat exaggeratedly, insists that the tribal identifications are modern constructions. ‘The Nigerian civil war’, he argues, ‘defined an Igbo identity: it did so in complex ways, which grew out of the development of a common Igbo identity in colonial Nigeria. . .’.Footnote ⁸⁴ Finally, customary law, the core concern of my discussion in this section, has been similarly viewed as a modern construction. According to Ranger, in fact, ‘The most far-reaching inventions of tradition in colonial Africa took place when the Europeans believed themselves to be respecting age-old African custom. What were called customary law, customary land-rights, customary political structure and so on, were in fact all invented by colonial codification’.Footnote ⁸⁵

By comparison, Elias, as I have mentioned, is in large part an advocate for the integrity and importance of customary law. When he wrote his Groundwork of Nigerian Law in 1954, he felt that he needed – just as many international lawyers have needed with regard to international law – to counter the Austinian challenge that a custom-based legal system is not law:

And here, in the last decade of the colonial regime, Elias turns first to the Privy Council pronouncement from In Re Southern Rhodesia of 1919: ‘there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law’.Footnote ⁸⁷

But Elias is after much more than establishing Nigerian customary law as law. And even though he might use a formulation like ‘in olden days’,Footnote ⁸⁸ he is very clear that we are not in the frozen, unchanging past of Ranger's inventors of tradition. Rather, Elias insists on the flexibility of customary law as one of its key characteristics. In fact, he turns to an opinion by Chief Justice William A. Osborne, who observed in a case, ‘one of the most striking features of West African native custom, to my mind, is its flexibility; it appears to have been always subject to motives of expediency; and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics’.Footnote ⁸⁹ Customary law, for Elias, was meant to slowly evolve, and he worried about the right adjustment, its moving too fast or not moving at all:

Indeed, this is the Elias with a strong sense that law must trace the evolution of society. As Zachernuk observed of Elias, he believed in the similarity of various legal systems and that, ultimately, Nigerian customary law shared the evolutionary character of the common law of England.Footnote ⁹¹ Indeed, Elias will argue that ‘We have briefly explained that the African mechanism for the assurance of orderly social existence has been firmly based upon the concept of the maintenance of the social equilibrium, and that this concept is synonymous with the British constitutional principle of the Rule of Law.’Footnote ⁹²

In this spirit, Elias can write an essay on ‘Government under Law in Africa’ as one of the chapters of his Africa and the Development of International Law using the commonplace ‘government under law’ formulation. In the essay he would even try to establish ties to Locke and Rousseau: ‘In African law, although theories about a social contract have not been formulated in this way, yet the indigenous ideas of government are not essentially dissimilar to that of Locke and Rousseau and, at least in its presuppositions, that of Grotius as well’.Footnote ⁹³ And here Elias speaks of the checks and balances of traditional African governance. Indeed, he observes, ‘[m]ost of the stories of corruption or misgovernment of chiefs have been due, not so much to the absence of these checks and balances, as to the transformation which the office has been undergoing in recent years under European rule in all parts of the Continent’.Footnote ⁹⁴ This seems to be an isolated reference to the adverse impact of European rule. Overall, Elias is convinced that ‘the marriage of the imported European form of parliamentary rule to the indigenous African systems is in many respects a happy one’, and here he turns to Martin Wight's assertion, if cautiously phrased in a double negative, that there ‘is no intrinsic disharmony between the indigenous institutions of the Gold Coast and the imported Western representative system’.Footnote ⁹⁵ If this is true of the system of government, it is also true of the legal system more broadly, so that Elias can assert that

In his various books Elias demonstrates his immense command of a wide range of English and African customary law as well as their interaction. His analysis can be quite subtle as he corrects miscomprehensions about African customary law, carefully disaggregating Western and African law. In his study of Nigerian land law, for example, he is quick to point out that the ‘right of an occupier to his land under the customary tenure of land is usually described as “usufructuary” but this term, though convenient and highly suggestive, is not very accurate’.Footnote ⁹⁷ With citations of Paul Vinogradoff's Historical Jurisprudence, he carefully distinguishes the African concept from the Roman. And as Elias continues later in the book, he explains that the Nigerian occupier of family land ‘holds a kind of fee conditional or even fee determinable, which, however, is peculiarly indigenous’.Footnote ⁹⁸

In numerous places Elias sets out the basic English principle of recognizing customary laws to the extent that they are ‘not repugnant to natural justice, equity or good conscience, or which are not in any way incompatible with any enacted law for the time being in force in a particular territory’.Footnote ⁹⁹ By legislation, Elias tells us, the principles of ‘natural justice’ have been applied in the eradication of ‘such obnoxious practices as witchcraft, slave-dealing and slavery, trial by ordeal, destruction of twins, and the like’.Footnote ¹⁰⁰ ‘It seems, however’, Elias asserts here, ‘easier by legislation to abolish witchcraft than to define it’. Turning to the ‘ubiquitous African institution of polygamy’, Elias asserts that it ‘seems to afford a good illustration of some of the problems with which the recognition of certain traditional practices have been faced [in] the courts. In this respect the conflict between statute law and customary law can be very perplexing, in view especially of the fact that it strikes at the root of family life – the vital basis of African society’.Footnote ¹⁰¹ What is interesting here – after his poignant reference to the ‘root of family life’ – is that Elias turns to a technical analysis regarding the anomalies in how the law treats different forms of marriage and whether a customary marriage follows a marriage under the Marriage Ordinance or vice versa. And he talks of the ‘tidier result’, meaning a more consistent result, in Nigeria than in the Gold Coast, but he does not address himself to the human values at stake. We have technical law and the practical problems of an inconsistent construction, but little sense of the true human impact.

I have mentioned how much Elias turned over the years to the anthropological studies of Fortes and Evans-Pritchard's African Political Systems, but the rite and magic that flow through the various essays in the Fortes and Evans-Pritchard book are almost entirely absent from Elias's writing. When he discusses the customary system of land tenure, he mentions that ‘[i]t is said by some that the notion of inalienability derives from a religious or magico-religious attitude towards the land regarded as a sacred trust of the living undertaken in memory of the dead’. He then cites a second explanation based on ‘a myth of the original ancestor’. But, finally, he sets out a ‘third, and more plausible, hypothesis. . . that community and family land has been held inalienable from a desire to preserve it for the requirements of the owning group, past, present and future. This is a simple socio-economic device to protect the interests of present and future generations of the group’, and, he concludes, ‘it is not based on any religious or mythical theory’.Footnote ¹⁰²

In Custom and Conflict in Africa, the anthropologist Max Gluckman repeatedly tries to compare various African political principles with those of early England, making references to Pollock and Maitland's History of English Law in the context of vengeance groups, citing the Wars of the Roses, and finally, in the context of the ‘rebellion principle’, remarking, ‘When I go to a Shakespearean historical play I feel that I am back in Africa, sitting at my camp fire, discussing the politics of rebellion with Zulu or Barotse’.Footnote ¹⁰³ Gluckman is interested in tying the African present to an earlier evolutionary moment in the English past. He also spends time on James Frazer's ‘divine kingship’ and provides a full chapter on the ‘Logic of Witchcraft’. If he repeats Evans-Pritchard's concept of ‘secondary elaboration of belief’ in a way that ties witchcraft closer to empirical experience, Gluckman's book is still rather distant from Elias's effort to write his legal and political analysis with myth and religion clearly set offstage. Elias worked hard to legitimize African customary law as very much like English common law, responding to social reality rather than to religious or mythological imperative.

5. Pan-Africanism and the Pan Am flight bag

In 1965 Elias published an article entitled ‘The Charter of the Organization of African Unity’ in the American Journal of International Law, which was reprinted as a chapter of Africa and the Development of International Law. Footnote ¹⁰⁴ Considering Elias's work on the committee that drafted the charter,Footnote ¹⁰⁵ the article in the AJIL can be read as a semi-official document of the union written by an authorized spokesman. Indeed, Elias's overview of the charter was just that, and it makes for tedious reading. This is a future Africa as explication de texte.

Essentially, Elias, the drafting committee member, is reporting out, explaining the structure and functioning of the Organization of African Unity (OAU). And he does so by working his way through the provisions of the charter, starting with its preamble and the language on the purposes of the organization before discussing the members' rights and obligations, the OAU's principal institutions, the Assembly of Heads of State and Government, the Council of Ministers, the organization's rules of procedure, the General Secretariat, the Commission of Mediation, Conciliation and Arbitration, the Specialized Commissions, the mechanics of member states' execution of the charter, and the mechanics of amending the charter. It is almost as if Elias were registering the OAU charter with the international legal professionals of the West by publishing his overview in the organ of the American Society of International Law.

Indeed, much of the OAU charter looks familiar, drawn from other multinational organizations, whether the United Nations or the Organization of American States. Elias even has to explain that organization's name was revised from the original formulation because one of the founding conferences ‘took the view that the resulting title of Organisation of African States (OAS) could easily be confused with Organisation of American States (OAS)’.Footnote ¹⁰⁶ Here and there in the text of Elias's articles are comparisons to sections of the UN Charter or the Charter of the OAS. These are, of course, still heady, post-independence days for most of the African states, so the mere act of creating a regional organization is significant. In 1990, Richard Fredland in his introduction to A Guide to African International Organizations – with its cataloguing of over 500 current and former international organizations – felt it important to address directly the fact that ‘African international organizations have not approached the success of the European Community for several reasons’.Footnote ¹⁰⁷ That, however, was not the case in 1965. In the 1960s the mere creation of the OAU was of moment. Indeed, Elias wants us to know that the words chosen for the preamble were more than simple pabulum: ‘All this may seem mere pious sentiment, but only those who participated in or were present at the establishment of the Charter could testify to the sincerity and earnestness of purpose that prompted the particular formulation of these objectives’.Footnote ¹⁰⁸ Moreover, Elias insisted, ‘Almost half the time spent on considering the Charter as a whole had been devoted to this preamble alone, so much store had been set by the African leaders on the postulates enunciated in the preamble of the Charter.’Footnote ¹⁰⁹

As I have suggested, Elias understood his responsibility to the organization in his AJIL article. But that did not dissuade him from allowing something of his personal views or the political context to creep into the article – if mostly in the first few pages. Indeed, Elias is quite clear in his introduction about the split between the more radical states of the ‘Casablanca bloc’ (the United Arab Republic, Ghana, Guinea, Mali, and Morocco) and the much larger group of 22 states that met in Monrovia.Footnote ¹¹⁰ The Casablanca states, he tells us, absented themselves from the early drafting meetings, such as the Lagos meeting of January 1962: ‘The excuse for their absence from the January meeting was that an invitation had not been sent out to the Provisional Government of Algeria in exile to attend and take part as a full member of an organization consisting only of independent African states.’ Elias then tells us, ‘In vain was it explained that, as the Algerians were still struggling for their independence from French rule, it would be impolitic to invite Algeria to such conferences until its achievement of full independent status.’Footnote ¹¹¹ Here Elias did not seek refuge in the established recognition-of-state doctrine of the international lawyer but rather chose a polite suggestion of political realism, ‘impolitic’. So we have in this sentence only a glimmer of just how momentous the Algerian war was from the perspective of newly independent Africa. And Elias wants to assure the AJIL readers that the Casablanca bloc won very little in the end, ‘a concession, albeit in greatly attenuated form, to the Casablanca bloc and their idea of an African High Command’.Footnote ¹¹²

There are a few charged passages in this article, such as his discussion of the fourth principle of the organization, the commitment to the peaceful settlement of disputes. There he describes the member states as ‘impatient in their desire for national progress and African advancement. And yet, somehow, the Member States feel that the peace which they so sorely need is in danger of being threatened by frontier and border disputes between some of their number’.Footnote ¹¹³ In essence, a suggestion of desperation informs what looks like a standard-fare provision of any regional organization. And Elias is clear in his advocacy of the ‘policy of non-alignment’ articulated as the seventh principle. After an aside about Nehru's experience of being attacked by the Chinese, suggesting that non-alignment does not always work, Elias asserts, ‘It is nevertheless a policy which, if carefully thought out and executed with discretion, appears in the long run to be the only possible one for the developing states.’Footnote ¹¹⁴ We know that Nigeria, despite its participation with the non-aligned states, was, for the most part, in the Western camp in the 1960s.Footnote ¹¹⁵ But the caution in Elias's sentence – ‘if carefully thought out and executed with discretion’ – is remarkable. It was clear that he did not want any of the AJIL readers to get the wrong impression. There is little fervour here.

Of course, some of Elias's positioning comes from his brief for his own country. This is clear in the following chapter in Elias's description of the resolution of the OAU's Council of Ministers in December 1965 requiring member states to sever their relations with the United Kingdom if it did not ‘crush the rebellion [of Ian Smith] and restore law and order, and thereby prepare the way for majority rule in Southern Rhodesia’.Footnote ¹¹⁶ Elias engages in a legal analysis about the Council of Ministers' having gone beyond its powers, for it as a body could only ‘recommend’ action. But he is quite forthright about the economic stakes of the Commonwealth countries and how little some of the non-Commonwealth countries had at stake.Footnote ¹¹⁷ On the final page of this chapter, Elias is quite clear in this judgement:

Nigerian interests, political reality, and adherence to the powers granted in the charter converge.

To return to the chapter devoted to the OAU charter, Elias is not making claims about the special attributes of the African situation as he did in his various treatments of customary law in Nigeria. Rather, he saw his charge as making it seem very familiar. Africa is essentially just another region, although he was at pains, as I have mentioned, to underscore that words adopted from the OAS or the UN charters were intensely considered in the African context – the charter was not simply a cut-and-paste job, and the resulting document is of great importance. Elias would even slip in a reference to ‘founding fathers’, knowing its impact on the US readers of the AJIL. But despite his heavy role in the drafting of the charter and his shuttling to each of the cities where the charter discussions took place, he keeps this almost entirely in the background, allowing himself to appear as witness only in reference to the intensity with which the preamble was discussed. Ultimately, he allows his own modesty and care and that of the document he is describing to merge.

6. Africa and the future of international law

If Elias deployed strict legal arguments about the constitutional capacity of the OAU Council of Ministers in its resolution regarding sanctioning the United Kingdom, when he came to write about the powers of the UN General Assembly in his essays of the early 1970s he asserted approvingly,

For Elias, that is just as it should be – in two essays republished as back-to-back chapters in Africa and the Development of International Law, ‘The New States and the United Nations’ and ‘Modern International Law’, he makes a strong argument that the world has bypassed the original structure of the United Nations, that international law has moved from its traditional focus on consent to consensus, and that lawmaking is being performed by various UN institutions, primarily the General Assembly.

In ‘The New States and the United Nations’, originally published in 1970, Elias argues that ‘[s]ince the enlargement of its membership began in 1955, the UN has never been the same again. It has influenced and in turn been influenced by the New States which have often impelled a new sense of direction for the Organisation's programme of work.’Footnote ¹²⁰ Elias can point to a ‘broadening’ of the institution's ‘mental horizon’ on several fronts. He asks, for example, ‘who can doubt that policy-making within the Secretariat has shown a marked shift away from Big Power politics and towards greater sensitiveness to the needs and aspirations of contemporary international society?’ Indeed, he argues, the ‘appointment of the Secretary-General and of some Under Secretaries from [the] Third World as well as the recruitment of Secretariat staff from a wider circle than America and Western Europe has meant that the area as well as the level of participation in decision-making is more democratic if because it is based on a wider consensus’.Footnote ¹²¹ The General Assembly has essentially been making new international law, and ‘[a] large measure of this accretion of power and influence to the General Assembly must surely be attributed to the greatly increased representative character which it derives from the membership of the New States.’Footnote ¹²²

There was obviously much still to be done. Elias, for example, takes the ICJ to task for its ‘often literal application’ of the source-of-law provisions in Article 38 of the Court's Statute:

Elias goes on to state that this ‘resentment of traditional international law is also shared by the Eastern European States who often emphasize the need for a contemporary international law which is shorn of certain aspects of customary international law based upon premises which are no longer valid in the context of present-day international life’.Footnote ¹²³ Here Elias has deployed a number of bipolar oppositions, including New State/Old State and traditional/contemporary, and he has created a clear sense of the past versus the future – although, as I shall suggest, with African states only as members of a larger population of ‘New States’.

The pitched battle between rearguard and avant-garde in international legal doctrine is played out more fully in his essay ‘Modern International Law’, in the commemorative volume for Philip Jessup. For the Jessup essay, Elias periodizes the history of international law into three stages, an ‘old age’ that stretched from classical Greece to the Thirty Years War, followed by ‘the medieval era. . . falling between Grotius and the demise of the League of Nations’, and, finally, a modern era stemming mainly from the end of the Second World War.Footnote ¹²⁴ His so-called medieval period was marked by a ‘cult of political sovereignty adumbrated by Jean Bodin and others’; only with ‘modern’ international law do we get a law that has ‘three-dimensional character’. With it came an ‘expansion of the frontiers of customary international law’, so that Elias can state,

Elias's metaphors are piling up in these passages and in others just in the first two pages of his essay, where there is a move to three dimensions, an expansion of frontiers, new ground broken, explosion, dynamism, growing networks, and, of course, the off-shoots. Everything is in great convulsion and movement.

Elias spends several pages on the International Law Commission (ILC), asserting that ‘[p]robably the most significant developments in public international law have been due to the work of the International Law Commission’.Footnote ¹²⁶ After a long list of the projects and drafts produced by the ILC, Elias ventures that when they and subjects currently under study are complete, ‘international law will have been re-written and re-stated to an extent that it will have ceased to be a European-oriented law and become a modern world law’.Footnote ¹²⁷ This is followed by a recital of the General Assembly as a source of law and a discussion of the ICJ and of custom as evidence of law, but most instructive in viewing Elias as international law publicist is his treatment of ‘The Contribution of Text-Writers and Publicists’.

Elias splits his publicists into three camps; the third is made up of publicists who open up new substantial areas of investigation, such as space law, so that, in essence, the first two camps provide the anticipated polar opposition that characterizes the structure of Elias's two essays. He identifies the first camp as composed of writers ‘who may be described as positivists in the sense that they base their approach to international law on State practice, conventions and decisions of international tribunals’. There is little surprise in his depicting them as ‘largely orthodox, and cautious about innovations’, and as ‘traditionalists because their writings, for the most part, reflect the customary mode of dealing with sovereignty, rights and duties of States, diplomacy, balance of power, war and peace and neutrality as the main pre-occupations of international law’.Footnote ¹²⁸ So when he gets to name Oppenheim–Lauterpacht (combining them because of Lauterpacht's editions of Oppenheim), Guggenheim, and Schwarzenberger as his examples, he has already deployed standard-fare adjectives about a rearguard, ‘orthodox’, ‘cautious’, and ‘traditional’.

Then Elias turns his attention to the second category, which ‘embraces such various writers as Philip Jessup, Jenks, Friedmann, and Falk, whose contribution lies in re-shaping and remoulding customary law as well as recognizing the need for wider horizons in our approach to both customary and conventional international law’. He will quote Jessup's ‘seminal book’ of 1948; talk about Jenks's ‘br[eaking] out in a new direction’, the ‘epoch-making’ work of Wolfgang Friedmann, and Falk's ‘sound[ing] a liberal note at a time when men were once more tending to lose their heads over internecine strife’; and even mention Myres and McDougal.Footnote ¹²⁹ It is, of course, convenient that Elias is writing all of this for a volume commemorating Jessup edited by Friedmann and including an essay by Wilfred Jenks. It is useful, however, to compare Elias's list with the list of names Antony Anghie provides of the post-war scholars who tried to address questions about whether international law was universal, how a European-based system could incorporate other cultures, and what it could do to adapt to Third World needs: ‘These questions were addressed by prominent Western and non-Western jurists of the period, including Friedmann and Elias, Jenks, Roling and Anand, Fatouros, Abi-Saab and Castaneda, McDougal and Falk.’Footnote ¹³⁰ Anghie's and Elias's lists overlap, but Elias's choice of only prominent figures in the Anglo-American international legal establishment is striking in the light of his goal of moving international law conceptually from the purely Western.

Stepping back from the publicists at the end of his essay, I would like to bring these two essays into the context of the rest of Africa and the Development of International Law and Elias's general views about law. Certainly, Elias's concerns about the structural and institutional lopsidedness of international law moved him to an energized binary style of thinking far from the overly cautious voice of his AJIL article, where in 1965 he was representing the OAU to the West. And without question, the politics of Elias's writing changed dramatically over the course of his career, from a need to legitimize African customary law as law very much like English common law to his need to legitimize a new regional organization, and further, to a drive to address inequities in the international legal system.

More interesting, I think, is what happens to Africa in these two essays on the United Nations and modern international law. In a book entitled Africa and the Development of International Law, Africa becomes lost in these two essays or, to put it differently, African states merely have sizable representation among the ‘New States’ of his essays. What, then, has happened to his statement from Government and Politics of Africa that ‘The problems of Africa are in many ways sui juris, if not unique’? Do the uniqueness and particularity of Africa matter little in the context of the development of international law?

What does remain a constant in Elias's writing is his commitment to the view that law is embedded in social reality. Law is a form of social control – in Government and Politics of Africa he asserted, ‘Roscoe Pound, an American, who is probably the leading jurist in the world today, has likened administration of justice to “social engineering”. For him, law is “social control through the systematic application of the forces of politically organised society”.’Footnote ¹³¹ And law, as I have discussed at length, follows social reality for Elias. In numerous ways, Elias speaks to the need for international law to address ‘the needs and aspirations of contemporary international society’ and to ‘meet the constantly changing needs of the world today’. And just as Elias depicted African customary law as evolving to meet changing social requirements, comparing it to the evolving nature of the English common law, so too did he conceive of international law as needing to evolve along with international society. Elias's imagination was that of the broad tradition of sociological jurisprudence, whose scientism sees social and commercial society simultaneously driving and being driven by the legal order both domestically and internationally. Elias may have evolved from his need to legitimize Nigerian traditional law in English eyes to become a proponent of essential change in the international system, but his notion of how law works and develops and its relation to society changed very little – whether in reference to past or future Africas.