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7 J. Afr. Admin. 51 (1955)
The Reasonable Man in Barotse Law

handle is hein.journals/jrnlafa7 and id is 53 raw text is: 


                        By Professor Max  Gluckman

1.  The  Case of the Violent Councillor

I  COME from a family of lawyers,   and  through my  childhood I constantly
heard my  father and his colleagues discussing their cases at the family table.
Later I intended to go to the South African Bar, and besides reading Law at
University I worked  in my  father's office in Johannesburg and attended on
him in court.  Therefore when, diverted by a desire for the exotic, I became
an anthropologist and began to study African social life, I hoped I might make
some  contribution on the problems of African law. But I found that though
the setting of this law might be exotic, its problems were those which are com-
mon  to all systems of jurisprudence. I can still recall vividly how I was sitting
in my deck chair one day listening to a trial in a Barotse Court, when I recognised
an old friend from my legal studies. He is inscribed in huge letters on the blank
page opposite my  notebook's record of the process of cross-examination: My
God,  the reasonable man  I  With  six exclamation  marks  after him-and
underlined I
  This was not the first Barotse trial I had attended, and in an earlier piece of
research in Zululand  I had also listened to cases. So  I share with many
colleagues a long blindness to the existence of this basic figure of jurisprudence
in African law.  Indeed, it was the facts of the case, rather than my  own
perception, which made  me aware  of his existence in Barotse law. But once
I had observed him, I was able to reconsider all the cases I had heard as exhibi-
tions of his dominant role in the judicial process. I came to appreciate that
he was the means by which the judges applied the fixed rules of general law and
morality to the varied circumstances of Barotse life. Above all, he was the
means  by which they adjusted these fixed rules to cope with the great changes
which the Barotse's life is undergoing as they are absorbed in the modem world.
  This is the general problem I am  going to talk about.  Obviously, it is a
problem which  is fundamental to our own jurisprudence, where the reasonable
man  is an equally important figure. The phrases, reasonable precautions,
and the like, crop up in every judgment and every chapter of a textbook of law.
Indeed, in the very first of his Misleading Cases at Common Law-in a case in
which the judges hold that there is no such thing as a reasonable woman  in
English law-Sir  Alan  Herbert comes  to the following conclusion:- There
has never been a problem, however  difficult, which His Majesty's judges have
not in the end been able to resolve by asking themselves the simple question,
 Was  this or was it not the conduct of a reasonable man?, and leaving that
question to be answered by the jury.
  It seems to me that in this passage Sir Alan puts the reasonable man into his
proper position, at the centre of the law. The reasonable man occupies this
central position because he is the means by  which  abstract legal rules are
focussed on to the varied circumstances of life. In textbooks of law he is cut
up  according to the technical divisions of jurisprudence-he comes in under
    IThis is the first of four talks by Professor Gluckman originally broadcast by the B.B.C.
in August, 1954. It is part of a full study of The Judicial Process among the Barotse of
Northern Rhodesia by Professor Gluckman published by the Manchester University Press
for the Rhodes-Livingstone Institute at 37s. 6d. We are grateful to the Director of the
Rhodes-Livingstone Institute for permission to publish these talks.


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