Repugnancy clause and its impact on customary law: Comparing the South African and Nigerian positions — Some lessons for Nigeria

The repugnancy doctrine was introduced into Nigeria in the 19th century through the received English laws. This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience. The doctrine is generally criticised for its use of foreign standards to assess the validity of the customary law rules. This article, however, contends that repugnancy doctrine had played a positive role in the development of customary law in Nigeria by removing its harsh aspects. Most African countries repealed the repugnancy provisos when they obtained independence but Nigeria still retains it. The article compares the positions in South Africa and Nigeria. In the South African context, this article found that repugnancy proviso had outlived its usefulness and courts now apply customary law subject to the Constitution and any legislation that specifically deals with customary law. This position, the article commends for Nigeria

Abortion and Moral Repugnancy

Most arguments concerning abortion center around the issue of rights. This short essay argues that there can be important considerations regarding the matter that have nothing whatsoever to do with rights. In general, the issue of moral decency has never been entirely settled by reference to rights. It can be morally repugnant to do some thing even if one would be acting perfectly within one's rights. I argue that with advances in technology this will turn out to be the case with abortion, given the possibility of transferring a fetus from one womb to another

On the Repugnance of Customary Law

The Constitution of Papua New Guinea (PNG) features a peculiar artifact of colonial-era law known as a repugnancy clause. This type of clause, used elsewhere as a neutral mechanism to identify conflicts between legal provisions, has in PNG become a tool for the moral-aesthetic evaluation of “customary law.” In this article, I follow the history of the PNG repugnancy clause from its colonial origins and through the relevant case law since the country's independence in order to ask both how the clause acquired its non-legal meaning through legal usage, and why it has been retained in its original form in PNG when so many postcolonial legal regimes have discarded it. Comparative material from Indonesia, sub-Saharan Africa, and especially Australia is used to contextualize the durability of the PNG repugnancy clause, and theoretical material on the affect of disgust and shame is brought to bear in order to understand the use of repugnancy in its moral-aesthetic sense. The article concludes with a meditation on the way the repugnancy clause has enabled the judiciary of PNG to distance the law of the country not simply from an uneducated or inadequately Christian general populace, but also from a history in which all Papua New Guineans were regarded as a contaminating threat to the European colonizers whose legal system the country has inherited

Market Design in the Presence of Repugnancy: A Market For Children

A market-like mechanism for the allocation of children in both the primary market (market for babies) and the secondary market (adoption market) will result in greater social welfare, hence be more efficient, than the current allocation methods used in practice, even in the face of repugnancy. Since a market for children falls under the realm of repugnant transactions, it is necessary to design a market with enough safeguards to bypass the repugnancy while avoiding the excessive regulations that unnecessarily distort the supply and demand pressures of a competitive market. The goal of designing a market for children herein is two-fold: 1) By creating a feasible market for children, a set of generalizable rules and principles can be realized for designing functioning and efficient markets in the face of repugnancy and 2) The presence of a potential, credible and efficient market in the presence of this repugnancy will stimulate debate into the need for such markets in other similar areas, especially in the cases of creating a tradable market for organs for transplantation, wherein the absence of the transaction is often a death sentence for those who wish to but are prevented from participating in the market

Market Design in the Presence of Repugnancy: A Market for Children

A market-like mechanism for the allocation of children in both the primary market (market for babies) and the secondary market (adoption market) will result in greater social welfare, and hence be more efficient, than the current allocation methods used in practice, even in the face of repugnancy. Since a market for children falls under the realm of repugnant transactions, it is necessary to design a market with enough safeguards to bypass repugnancy while avoiding the excessive regulations that unnecessarily distort the supply and demand pressures of a competitive market. The goal of designing a market for children herein is two-fold: 1) by creating a feasible market for children, a set of generalizable rules and principles can be realized for designing functioning and efficient markets in the face of repugnancy and 2) the presence of a potential, credible and efficient market in the presence of this repugnancy will stimulate debate into the need for such markets in other similar areas, especially in cases creating a tradable market for organs for transplantation, wherein the absence of the transaction is often a death sentence for those who wish to, but are prevented from, participating in the market

The "Reasonable Man" in Colonial Nigeria

A key scholarly debate in late colonial law concerns the interpretation of the ‘reasonable man’. The reasonable man, whose paradigmatic status was itself a contested subject for English law, was all the more problematic for colonial law when the idea of a ‘reasonable native’ was presumed in and of itself to be questionable. Should the ‘native’ be held to the same standard of reasonableness as the Englishman? And if not, what standard of reason was valid? This article examines how popular literature of the period, both fiction and memoir, reflects these concerns. Focusing on accounts of colonial Nigeria, I show how this literature repeatedly complicates the perceived ‘reasonableness’ of both Europeans and colonial subjects. Moreover, I demonstrate that these complications, frequently dramatized through narratives of the uncanny, make visible colonial anxieties about the distinction between native custom and colonial authority

Repugnancy Doctrine and Customary Law in Nigeria: A Positive Aspect of British Colonialism.

The doctrine of repugnancy owes it origin to the medieval period and evolution of English equity. The doctrine was introduced into Nigeria by the end of the 19th century via the received English laws to test our customary law for acceptability. The issue has been whether the application of the doctrine by Nigerian courts has an ‘English colouring' as a result of colonization. This paper argues that equity did not originate from England; it is a universal concept of what is ‘good, just and fair', which is consistent with. S. 36(1) of the 1999 Nigerian constitution. The problem with our customary law is that it is inundated with multiplicity of customs complicated by superstitions. It is difficult to take judicial notice of it without conditionality. The paper concludes by supporting the locus classicus in Eshugbaye Eleko v. Government of Nigeria, and Elias' thesis that the doctrine of repugnancy has a positive effect on the development of our customary law by the removal of its superstitious and harsh elements. This is one positive aspect of British colonialism. Keywords: customary law, repugnancy doctrine, British colonialism.African Research Review Vol. 2 (2) 2008 pp. 286-29

The Corporate Origins of Judicial Review

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution—what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation could not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution

Original Understanding and the Whether, Why, and How of Judicial Review

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must find its popular grounding somewhere other than in the ratification of the Constitution by “We the People.” Yet, despite the prominence and the significance of the academic debate about whether judicial review was part of the original understanding, the answer to the controversy is surprisingly clear: contrary to the Bickelian point of view, judicial review was not created in Marbury. While there is a strong argument that the Constitution’s text contemplates judicial review of federal legislation—and it seems clear that the Supremacy Clause assumes that the federal judiciary has the power to review state legislation—the critical evidence concerning the acceptance of judicial review involves judicial practice. In the years before Marbury, exercises of judicial review were surprisingly common and generated surprisingly little controversy in either the courts or the political arena. As I have written recently, there were thirty-one cases between ratification and Marbury in which state and federal courts invalidated statutes, a number far greater than previously realized. Similarly, Maeva Marcus has shown that, in the first Congresses, Congressmen repeatedly took the position that the courts would review statutes for constitutionality. While acceptance of judicial review was not universal, it is striking—given the prevalence of the view that judicial review was created in Marbury—that the power was exercised so frequently and that the opposition to the exercise of that power was so limited

The Dormant Clause: How the Failure of the Repugnancy Clause Has Allowed for Discrimination against Women in Zambia

Zambia’s legal system combines unwritten customary law with post-colonial statutory law. However, select traditions clash with statutes promoting gender equality. Though the repugnancy clause promotes the supremacy of written law in discrimination cases, it has not been utilized effectively. This paper raises the sources behind the clause’s rare application and explores the possibility of utilizing the equal protection legal strategy employed by Botswana to prevent sex discrimination under customary law. This paper is based on a study of existing literature on the repugnancy clause in Southern Africa. Interviews were held with Boma and Chelstone Local Court Magistrates, as well as senior Local Court officials, women’s legal advocacy NGOs, and individual researchers. This research was conducted in Lusaka, Zambia during June and July 2013