Creating Customary Law

I am at the moment researching and writing on the life of Theophilus Shepstone, the man widely considered to have been responsible for the successful incorporation of customary law into the system of colonial government in the Colony of Natal, which in turn profoundly influenced subsequent legal and administrative developments in South Africa a whole. Being interested in recent developments in the use (or misuse) of the term – as in ‘to enhance customary law and the customs of communities observing a system of customary law’ in the preamble to the Bill quoted above – one of my approaches has been an attempt to work backwards to the term’s colonial origins. At first sight the law books, the published ordinances and the statutes for the use of legal practitioners seem just the source the historian might use. The initial instruction, its enactment, in chronological, thematic or alphabetical order; its repeal, amendment, and contemporary status: such ordered, tabulated, accumulative history must appeal to the historian who normally has to attempt to reconstruct documentation from incomplete and disparate primary sources. In practice however this has proved impossible and I have become persuaded that, methodologically, the historian and the lawyer live in different intellectual universes.