In an especially ambitious study of the legal changes taking place in post-Socialist Mozambique, Juan Obarrio has employed a broad multidisciplinary perspective to contextualize his concentrated focus on “the entwined praxis of customary and state laws enforced by a community court” (186). Ensuring that his meticulous exploration of the turmoil of this moment overlooks no relevant influence, he has adopted the perspective of the longue durée which reveals similarities between current dynamics and colonial formations and also documents features of the Socialist era that have been retained in contemporary forms of local justice.
In a chapter on the history of law, he identifies the laws and judicial schemes the Portuguese colonialists utilized to control the population and the approach the Socialist government established after independence in 1975. It engaged in a fierce repression of customary authority, law, and ritual, considered to be a major cause of the bloody civil war that followed. The People’s Tribunals, established by the Socialist government, have been transformed by the current government into “community tribunals” to engage in “the resolution of conflicts of a civil nature, taking into account local customs” (59).
Obarrio’s study locates the current reform of the justice sector and the resurgence of the customary, including customary authorities and courts, within the contours of neoliberal governmentality and structural adjustment of the economy. In effect, he shows how the rule of law is actually a corollary of the neoliberal state. Scholars of any field and citizens of any state would benefit from his synthesis of the ideological foundations of neoliberalism, summarized in the following:
“Neoliberal governmentality subordinates the political to the functioning of a market economy, according to a doctrine in which markets should regulate the state. The art of government is presented thus as the creation of managerial frameworks and parameters designed to maximize private profit and subsume all social activity and imagination, including the ‘public sphere’ and ‘civil society’” (81).
In his discussion of structural adjustment, the author addresses the significant role of the World Bank which was overseeing and articulating the work of different agencies in the field of justice and legal reform in Mozambique in 2002-2005 (108). He identifies the external forces (foreign agencies and donors who fund entire areas of state governance, including juridical reform of the state) as directing reform at privatization, decentralization, and deregulation of the public sector. However, in their workshops and reports, they attempt to acknowledge the centrality of locality, tradition, ritual, kinship, and gender, but depict customary authority as “a sort of charismatic power” that interacts with the souls of the ancestors and spirits of nature, linking custom to nature and kinship. The law claims to process the historical remainder of the customary, and subsumes it back into the rule of law of modern liberal democracy (114-115).
The richest section of the book and the one of greatest interest to ethnographers and students of African legal systems is Part II, the close studies of local governance in northern Mozambique. Aspects of Socialist governance are still in place there, a phenomenon Obarrio labels “minor states” and describes as an example of an institution enacting “customary citizenship” at the local level (121-122). These community courts represent an amalgam of the previous Socialist People’s Tribunals, official state law, customary law (influenced by the state’s configuration of the customary), and custom as inflected by community understanding and kinship rules.
As Obarrio demonstrates in chapters on the judges, the courts, and the cases, both continuities with the past and contradictions in the present characterize the courts. In one dramatic instance, after sitting in a specific court for a length of time, he learned that the well-respected, articulate “president judge” was also the main diviner and healer in the area who practiced his craft in a hut near his own house, maintaining the two roles absolutely separate.
Obarrio considers that kinship and personal narrative are the matter on which the authorities of the court work (178). As family/kinship is deeply embedded in the court, continuity with the past is prominent in the working of the courts. All persons must be accompanied by their family when bringing a case, and numerous members of the family may speak in court. Other elements of custom relevant at all times include gender, belief, supernatural powers, “traditions,” and more. Even though all persons must bring their family, a judge is quoted who explains that women “must attend with the family” if they wish to be heard because “women are weaker” (185).
“Kinship functions as a grammar that permeates the court’s juridical practices,” Obarrio tells us. In a divorce case, the families of both husband and wife may be present, but the essential figure is the mother’s brother, since kinship is matrilineal. “The main axis organizing the ruling of a case links the maternal uncle and the main judge”(184). Obarrio concludes that the intersection between kinship structures and the law forms a “minor state” that enforces customary citizenship.
Using the metaphor of theatricality, Obarrio describes the courts as performing justice as they negotiate divorce arrangements, explore the effects of witchcraft, or pursue justice as the repayment of offenses-as-debts. Divorce cases constituted the majority of the conflicts brought to the courts, and they embody a wide range of issues. One instance of divorce revolved around a talisman, a symbolic drawing in gold ink on a piece of paper, a force that served as the means for the husband to drive the wife from the house. In other cases, beatings, rape, and physical or verbal abuse, all forms of domestic violence, were the subject of cases in the court. Contrary to many cases, acts of domestic violence were never discussed in a case in which the woman fled an abusive husband to live with her elders and her uncle’s family. Though ritual and sorcery were influential in the background and led to her husband’s violent behavior, the two families—her own elders and the family of her husband together with neighbors—wove together an agreement that would return her to her abusive husband. The elders imposed constraints that the community judges could not overcome. With this outcome Obarrio describes the wife as a domestic servant for the elders in two related families, and concludes that the case “shows the fragility of citizenship in the postcolony, haunted by the figure of the subject as forced laborer” (225-227), a reference to the Portuguese forced labor laws.
In his attempts to interpret justice as formulated by the community courts, Obarrio shifts into philosophical and socioeconomic concepts. Thus, he considers customary law to be a compendium of strategies of borrowing and repayment. Further, he has drawn on the concept of “the gift,” and the “spirit” of that gift. As judges calculate compensation for an offense, he determines that the most important aspect of the reconciliation has to do with the “spirit” of that gift, “representing the remainder that cannot be forgotten or erased and needs to be pardoned. The object exchanged as gift is not strictly material, but, rather, a local conception of justice” (218).
Commenting on his use of the concept of the spirit of the laws, Obarrio states that the spirit of the laws “represents the enchantment of an imaginary of the state materialized in the law, which reveals its true nature in the moment of recognizing other spirits: in the articulation with traditional norms and authorities and with the otherworldly belief and ritual” (231).
Among the most important of his conclusions is his notice that the crucial role of the moral economy of relatedness (kinship structures) is seldom mentioned in the reports of development studies. “The violence and sacredness of the customary are downplayed or ignored by secularizing, liberal reforms of the rule of law” (230).
In this erudite, comprehensive study that recognizes the complexity of judicial reform in a neoliberal context and the revival of customary law, Obarrio sheds new light on issues of the global and the local by placing the judicial in the spotlight. Nevertheless, one frequently wishes an editor with a firm hand would have rearranged the massive amount of material and reduced the repetition. The author’s philosophical explorations often detract from a full understanding of the processes he analyzes. He is himself gifted with language and seems to enjoy creating multiple theoretical interpretations for the same idea, leading his reader down a path of verbal twists and turns. However, as the author claims, the ethnography in northern Mozambique reveals forms in which life could momentarily, precariously, capture the law.
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[Review length: 1416 words • Review posted on April 27, 2016]