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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: THE REASONABLE MAN IN BAROTSE LAW THE REASONABLE MAN IN BAROTSE LAW' 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. 51

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