History and the Redefinition of Custom on Kilimanjaro Sally Falk Moore Local customary law "systems" within present African states are referred to from time to time in legislation and in the courts. These references read as if preserved parts of previous traditions actually existed intact. In Tanzania the Primary Courts are specifically given -j.... jurisdiction over cases arising under customary law (sheria ya mild) [^Q^ {Maelezo 1964). Yet it is obvious that in practice the congeries of custom that do survive enjoy their continued life in profoundly altered political and economic environments and have themselves changed in a variety of ways. The "customary rules" that do remain in use are not necessarily N€-uj Tylorian "survivals," anachronistic fragments of the past that are neither ^^--^U^«-,, part of nor appropriate to a contemporary world (Tylor 1958:70). In- Q)/\? stead, they must be seen at this moment as integral elements in an-^j. '-J"'""-ongoing political order. In Africa the invocation of tradition can be as cl%v-much a way of resisting the government as a means of cheating one's c^ ^Xí'' brother. be V Present-day clusters of local legal "traditions" therefore require inter- t •. iU-%-c pretation in at least two apparently contradictory dimensions—the di- ' tf^ ^€s> mension of formal continuity over time and the dimension of sequential '^w? -\~.-i transformation. Emphasis on the sameness of form over time has often passed on his daughter-in-law. When he emerged from the cell, ill-father-in-law prayed to God to curse the disputed land and the wonui ■ who had created such disorder. Not too long after, the wife of the teacher fell ill and went to ill hospital. She returned home, but she never recovered from her illness Í2821 History and the Redefinition of Custom on Kilimanjaro After a time she died. After her death, the father-in-law went to the banana garden of his son the teacher and said that it was now finished, that what he wanted had happened. Then he told his son the teacher that if he took the land of his brother without paternal permission all his children would die. The teacher was obdurate and told his father he would not return the piece of land taken from his younger brother unless and until the father brought back to life the wife he had caused to die. Neither the father nor the younger brother would speak to the teacher thereafter, and the father provided the younger brother with another place to live near him in the lower area. The teacher was left in possession of the cursed piece of land in addition to his own plot, but it was said in the neighborhood that he did not dare eat any food that had been planted in that land for fear he would die. Nor could he go to his father to ask his pardon because of a conditional curse he himself had brought forth. During his wife's illness, when the teacher accused his father of bringing sickness to his wife, he also had sworn a mighty oath that should he ever ask his father's pardon the father should quickly follow the deceased wife into the hereafter. No doubt he had hoped thereby to frighten his father and save his wife. But his efforts were to no avail, and he was left a widower who could not beg his father's pardon. All the same, it seemed clear that he and his sons would inherit the cursed banana garden after all. Case 2: The "Kidnapped" Heir Under "customary law," a man who wanted to alienate a piece of land and give it to a nonkinsman could do so legitimately only after obtaining the consent of his agnates. That rule was of urgent interest to a well-to-do man named Antoni of the lineage of N------, who wanted to buy a small banana garden next to his own that was about an acre in size. Antoni had a salaried job at the mission, and his wife was a teacher, so he was a comparatively rich man. The plot he coveted was encumbered in a complex way. It had been the property of old man Salewi of the K------ lineage, who had died a few years earlier. One of Salewi's wives had lived there with her two sons, Paul and Jacob, as they grew up. In terms of Chagga customary law of yesteryear, her banana garden might have been expected ultimately to become the property of their youngest son, Jacob. But land shortage has produced revisions of practice. Now it is just as much a matter of practical custom for a father to divide the plot of his wife between her two sons as to leave it all to the rsssi Sally Falk Moore younger in the traditional manner. The legal question at issue in !", case history has to do with whether Paul, the elder son, had a righi ■,. share of his mother's land. In 1969, only Jacob, the younger son, and I , household lived in his mother's plot and used the proceeds fio.i i , produce. Both Paul and Jacob were entirely dependent on farmir-.1 |>,, their living. Neither had any additional source of income. The elder son, Paul, did not live in the parish of R------at all. (lis father, Salewi, had given him a bigger piece of land in one of the low«, areas, near Himo, a market center on the main road. Paul worked th( land his father had given him and lived in the lower area with his wifi and son. At first they occupied a rented house, but in 1969 Paul decider to build his own house in his own lower-area plot and started to do so but to complete the house he needed more cash. At that point Pani decided he wanted to sell what he claimed was his rightful share oľ hi mother's plot in the parish of R------. He was in need of money, and thi seemed the only way to raise enough cash. He went to the sub-vil lag* head to tell him about his plan to sell the land to Antoni, as required Ir law. (The sub-village head happened to be a lineage relative of Antoni. Paul told his own agnates about his plan and gave his kinsmen an opportunity to buy. This right to first refusal was the modernized version of the consent of agnates required by Chagga customary law. None ol'thi lineage kinsmen came forward with an offer, so after a few weeks Paul posted the necessary formal notice in the local court announcing InS intention to sell. At that time the notice had to be posted thirty day-before the sale to give anyone who might have claims an opportunity ! ■ come forward. At first, no one made any objections known. Antoni (the unrelated neighbor) went ahead and paid Paul 1,50" shillings toward the purchase price. However, in Chagga law the right t ■ land does not pass until the full purchase price has been paid. The de;i was by no means complete. This, of course, was known to several el Paul's kinsmen. They did not tangle directly with Paul, but went to hi house near Himo and persuaded his sixteen-year-old son, Donasia. t" come with them to R------to claim that the land was not his fathers lim his own. The implication of such a claim was that Paul was trying t ■ alienate property that did not belong to him, and hence that he ha-nothing to transfer. Toward making this case, Paul's kinsmen broui;h! young Donasia to R------and placed him in the protective care ol th- senior elder of their lineage, the lineage of the K------s. The senior old< is the ceremonial head of the localized lineage. His authority rests on hi * position as the ritual intermediary between living agnates and the lin T2841 History and the Redefinition of Custom on Kilimanjaro ,age ancestors. To offend him carries significant risks, this-worldly and )ther-worldly. Paul was enraged, but there was not much Paul could do lecause young Donasia had been persuaded that his father was doing : [im out of his rightful property. The K------s also whispered in Donasia's ■ar that if he ever showed his face in Paul's house again Paul would kill liim. Donasia became the instrument of his relatives' intentions. The claim of the K ~s was that Salewi had left what might have been his eldest son's share of land directly to his grandson Donasia. There is in Chagga "customary law" a rule that a grandfather may skip a generation in his allocations to leave land to the firstborn son of his firstborn son if the son is already well provided for. That the firstborn son had land was clearly the case in this instance. What was not so clear was whether Salewi had in fact made such a generation-skipping allocation. Meanwhile, Paul's younger brother Jacob was living on and using the very land that Paul and Donasia each claimed. In June 1969, Jacob took Antoni, the prospective buyer of the disputed plot, to court and alleged that Antoni had uprooted nine coffee trees in Jacob's property. The disputed plot was contiguous to Antoni's and had a common boundary with his. Jacob alleged furthermore that Antoni had thrown stones at Jacob when Jacob passed on the path in front of Antoni's compound. Antoni managed to get the case dismissed. He contended that Jacob and Paul had themselves uprooted the trees to frame him and to prevent him from completing the purchase of the land. After winning that victory, Antoni lost the next round. The K------s appealed to the village executive officer and managed to persuade him to stop the sale. The executive officer was taken to the garden in question and shown the place where the bones of the K------ancestors were buried. This was proof that this was patrimonial property and according to Chagga tradition should not be sold without the consent of all. Rut the village executive officer also told Donasia that if he wanted to keep the land he would have to find a way to pay back the 1,500 shillings Antoni had already invested. Donasia had no idea where he could get the money. He feared his father too much to approach him, and evidently with good reason. Donasia's father, Paul, was known to be a very excitable and violent man. I was told that his sibling, Jacob, took the precaution of putting a spell on him to try to keep him calm through this period of altercation. It seemed very desirable to do so, as suddenly there was another bidder who offered to pay even more than Antoni for Paul's share (or Donasia's, as the case may have been). The person who came forward with the more rassi Sally Falk Moore tempting alternative offer was none other than the teacher in Case J neighbor of all these contenders. There would be no end to the star Interpreting the Two Case Histories This account of the two disputations has mentioned certain large-sc circumstances that lie behind the pressure on the land: populat increase and the cash-cropping of coffee. The logical link between h shortage and bitterly disputed claims is not too difficult to find. With, land there is neither enough produced food nor enough coffee cusl buy food. Unless a landless man manages to get a wage-paying job ú those are few) or already had an income-producing business (and th are still fewer), Iandlessness can bring the poor perilously near to do;. It can be physical death from hunger, or social death from the net-( leave the community in search of a better situation elsewhere. The ot form of social death is to be without offspring—at the end of the line you have male children, you need land for them; if you have no ni children, it must mean that your agnates covet your land. Belief in the potentially lethal repercussions that follow from on and curses are part of Chagga cultural cosmology. These misforln causing consequences of human words and occult acts are as consist with present versions of Christianity as they are with precolonial Cha ideas about the power of the dead over the living and the nature "witchcraft" and "magic." The cases present word-caused homicide; fact. Whether what is said is so or not is generally regarded as c tingent, as possible. There are often differences of opinion. This is way it comes up in conversation. Land shortage is death-dangerou* more than one sense. Submerged in these two stories as well is the march of an unrelenlii . process, the process by which the better-off Chagga men try to do tin i* poorer relatives and neighbors out of their land. In both these cases, v-1 see that it is the salaried men (the salaried teacher in the first case, an ' the salaried mission-employee, Antoni, in the second) who are energt ■-ically on the road to acquiring more land. In both stories these acquis tive men or their wives are accused of offenses, and their antagonists n • other legal maneuvers to try to foil their plans. The ultimate outcome ■■! these particular struggles had not emerged at the time this material vv ^ collected. Indeed, in a sense, such struggles are unending. Nor is uV outcome fully predictable in any particular instance. There are man' f2861 History and the Redefinition of Custom on Kilimanjaro nossible reversals of fortune that even a relatively prosperous man may suffer- But in the long run it seems clear that the better-off, the more literate, the more able to get along in the modern sector will be able to outdo their less fortunate agnates and neighbors in the competition for resources. Even so, their accumulations will soon be subdivided among many offspring. Demography keeps wealth in check. Thus, the case accounts only hint at economic differentiation and asymmetry of power, because these are not matters open to verbal disputation; they are incontestable circumstances. Instead, the discourse in and surrounding the cases goes to some lengths to present the normative rationales the claimants made for their arguments. That is where "customary law" enters the picture. Presumably some of the factual claims were fabricated. WTiat is not individually constructed is the culturally embedded legal rationale. That commonality can be verified from other case histories by the dozen. (See Moore [1986] for an extended description of the content of "customary law.") The two land case histories are classical instances of recent situations that the Chagga themselves characterize as "customary law" cases, instances involving the mila, the customs of the WacHagga. Both involve practices and ideas that refer to "the past but that are closely woven into the present fabric of rural Chagga life. It goes without saying that the Chagga know as well as anyone else that there are occasions when it is convenient to invoke tradition to obtain property. For other purposes, the very same people are likely to say that times have changed and new ways of doing things are more appropriate. The choice of the "modern" perspective or the "traditional" is often clearly a matter of strategy. But the availability and the plausibility of the particular traditional arguments is not to be explained solely by the way they figure in the strategies of individuals. To take the actor's perspective in that narrow sense ignores the larger-scale conditions that determine the limits of individual choice. The parties to such legal disputes are not fully free to constitute their own reality. To a great extent they operate constrained by general circumstances that they do not control, and they are often subject to quite specific limitations set by more powerful others. These kinds of contextual constraints and asymmetries of power are the preoccupation of much current social theory (Lukes 1986). The problem is to keep a balance between the task of uncovering determinants and the task of identifying possibilities. What Bourdieu has proposed, both with his concept of the habitus and in his books on education and on taste, and what Willis has argued even more forcefully in Learning to Labor, is that Sally Falk Moore even what is experienced by the actors as purely strategic, innovative, or rebellious choice-making ultimately has, on the large scale, the effect of "reproducing the system" (see Bourdieu 1977, 1984; Bourdieu and Pas-serson 1977; Willis 1981). No one would argue that there are no continuities in categorical hierarchies and the various asymmetrical relationships they spawn, but the "reproduction" model is rigidly static as a total framework of analysis and it leaves a huge question unaddressed__ How then do systems change? Neither Bourdieu's model nor Willis's interpretations fully addresses that question. How is an anthropologist working at the micro-social scale, nose-to-nose with the protagonists, to distinguish the process of change from the process of reproduction if both present themselves as change? The solution is difficult and not always practical. Wke,never possible, the locally small-scale, actor-centered materials of fieldwork must ]>e reinserted into the long story of historical tŕánsŕormationľ If"iS~oTil\~ because he knows what happened afterward that Sanlins; can make what he does of the misadventures of Captain Cook (Sahlins 1981, 1987). Only because I know what happened before can I see Chagga "custormm law" of the 1960s and 1970s as something very different from the late nineteenth-century body of practices to which "customary law" implicitly refers both for legitimation and for some of its specific cultural content. There is an impoverishment of understanding when an ethnographic situation is stripped of its deeper temporality. For the Chagga the question why certain traditional legal claims, arguments, and ideas Kave remained viable while othereyanished is in'largespart answerable, buttoanswe^^ can be told succinctly. Reorganizing the Chagga as a Project of Governments For a century governments have been telling the Chagga what they may and may not do and what parts of their system of "customary law" were acceptable and enforceable by the state and what parts were not. Colonial governments, first German (1886-1916), then British (1916-61), had a variety of plans to reorganize, control, and reshape Chagga life. (The missionaries and settlers who arrived with them had their own agendas too.) Since 1961 the postcolonial government, with its program of African socialism, has undertaken new reforms under very different ideological banners, but independence from colonial rule for the nation r^ssi History and the Redefinition of Custom on Kilimanjaro Jjas not meant independence from central government directives for Tanzania's peoples. Dictation of change from above continues. Given such a past and such a present, developments in the local system of "customary law" over the century can be seen as taking place in what is officially regarded as a residual category. ^At^first, "customary lawlY£asjhai^p^^M_earHerj^ay of life with which colonial government institutions either deliberately chose not to inté7féYě7whíchTney could not easilyalter, or which were left in''existence because they fell outside the locus of administrative attention. The distinction between 'customary law" and govéŕhment-ŕhä'ďe law was originally a product of the colonial encounter, but that encounter did more than create two parallel legal categories, one new and one old. It determined what part of the old would be preserved—or rather, it determined that part of the old would not be preserved. The rest—the residual category that did not offend against colonial definitions of morality and that was not inconsi-stant with colonial law and policy—was permitted to continue. Over time, substantial changes appeared in the content of that "customary law" sector. That is not surprising. The most important formal change in the place of traditional Chagga "customary law" which also affected its content is the fact that from the beginning of the colonial period to the present it has been harnessed to political and economic structures that are entirely different from those existing in the late nineteenth century.2 Direct state interventions in Chagga affairs, and their legal consequences, could be illustrated in a number of different ways, but none is more telling than the history of Chagga formal organization. A knowledge of the drastic reorganizations worked by governments puts in proportion the other half of the story: the fact that the localized pa-trilineages of precolonial times sought to preserve a degree of autonomy and succeeded in remaining significant entities in the allocation of property. Much of what was transformed on Kilimanjaro in this century was changed through the agency of three major organizations of European provenance introduced on Kilimanjaro during the colonial period. All three are still there, and still very important, though they are now present in mutated forms. One was the Christian church, in Lutheran and Catholic versions, together with their mission schools and hospitals. The second was the national, provincial, and district administrative 2And the late nineteenth century undoubtedly was very different from the early nineteenth century. See Stahl 1964 and Iliffe 1979. Sally Falk Moore structure now run through the national party (first called TANU, nov CCM). The third was the coffee cooperative through which all Chagg, have sold their coffee since the 1920s. In one sense, because the indite nous system of localized patrilineages has persisted, these other organi zations of European origin might appear to be merely additions lo rather than replacements of, the most basic indigenous arrangements But the powerful presence of these ubiquitous organizations worI, bul also substantial powers of control over its members. For males, they were what I have called "universal membership organizations" (Moore 1986:310-317)—all men belonged to all of them. The achievement of self-acquired social position took place largely within these milieus, as History and the Redefinition of Custom on Kilimanjaro did transmission of property and position from one generation to the next. Each level and type of organization had its own internal means of enforcing its control over members and of hearing and closing episodes of dispute that arose among them. There was, in practice, a degree of fluidity in the alignments and numbers of the collectivities that made up a chiefdom, and a degree of flexibility in the choice of leadership. Chiefs routinely stepped down in middle life in favor of their sons. The succession could be accelerated or decelerated as the political situation required. Chiefs could also be deposed and replaced. Households could move from one chiefdom to another. The chronic raiding and fighting both among the Kilimanjaro chiefdoms and with "outsider" chiefdoms, which characterized late nineteenth-century life, provided many opportunities to rearrange Chagga political affairs (and even to do away with incumbents in office) or forcibly to persuade chiefdoms to change their alliances or to become tribute-payers and clients of those who threatened them most. The control over regional and long-distance trade must have been a major factor in all this turmoil. The monopoly of chiefs over the most important items in the trade, especially over ivory, captured cattle, and other trade goods, gave chiefs a strong hold over the key people in the chiefdom. The chief, through redistribution, could offer incentives as well as deploy threats in relation to subordinates. Once the colonial period began, all the balances in this political arena changed, even though some of the basic constitutive elements of its form continued in being. Warfare ended, the military aspects of the age-grade system were abolished, and the long-distance trade completely changed its character. Chiefs lost their acquisitive and redistributive monopolies, and Europeans took over the marketing of significant commodities. What had been independent chiefdoms became subordinate administrative units in a colonial state. The cash-cropping of coffee was introduced, and eventually coffee was planted by virtually every household in its own land. The Chagga continued to grow subsistence crops as well. Most families were converted to Christianity. Schools and shops sprang up. The population doubled and doubled again, going from 100,000 in 1900 to almost 500,000 in 1978. All the while, in form, many of the major local organizational units of precolonial times were maintained. Chiefdoms, districts, lineages, and the water-sharing groups persisted. Some became larger, some smaller, some new ones were founded, some old ones abolished. But each type of entity continued, many just where they had been before. In 1961 chief- riQii Sally Falk Moore ship was abolished once and for all, and a new formal division of admiii istrative units was brought into being. But they were for the most par composed of the same old basic subdistricts and other low-level organi. zational entities that existed before. These continue in metamorphosed versions to this day. However, though locally conceived in terms of their continuity, the content and milieu of these organizational frameworks has continuously shifted and changed. From the 1890s to 1961, each chief became more and more an agent of the administrative apparatus of the colonial state, collecting taxes, enforcing regulations, and presiding over a court—the jurisdiction of which was carefully limited by the government. With warfare gone and the long-distance trade in other hands, political rivalries shifted their focus. The colonial administrations, both German and British, gradually reduced the number of chiefdoms by half. Thus some chiefdoms became subordinate to others and lost their chiefly office. The manipulation of choice in this matter was not without input from the Chagga chiefs themselves. Politics became focused on position in relation to the colonial authorities. Continuing a process of consolidation begun earlier, the British completely reorganized the structure of local government, creating new levels of administration and a type of centralization that had no foundation in the Chagga past. They united all the Chagga chiefdoms. By 1929, all the chiefs were grouped together in a single council, and that council not only became a legislative body through which many colonial ordinances were promulgated, but also was constituted as a court of appeal. The power of the chiefs in their local chiefdoms was gradually diminished. In place of the earlier almost complete judicial separateness of each chiefdom, the chiefdom courts over which they presided had become the lowest judicial bodies in a local hierarchy. By the late 1920s the chiefs had been put on salaries paid out of tax funds, and their tribute-demanding powers were curtailed. After independence, in 1961, though chiefship was abolished, most of the local courts the chiefs or their delegates had presided over for most of the century were continued in the same sites. Their place in the national hierarchy of courts «'as changed (Moore 1986:159-160). They were renamed Primary Courts and presided over by an appointed "magistrate. ' It was to such a court that our protagonists in the land cases went with their various tales of woe. A process of economic reorganization parallel to the administrative consolidations of the chiefdoms and to the creation of the judicial hier-rS92l History and the Redefinition of Custom on Kilimanjaro archy was undertaken. In the 1920s, at the instigation of a colonial officer IP the district, the coffee cooperative was begun in order to centralize ("offee sales and regulate production. The parallel between administrate centralization and the concentration of economic control is striking, aS was the use of the law to effectuate this coordinated development. The cooperative came to be extremely successful, but that was a matter neither of accident nor of local popularity. A law was passed that in effect made it illegal for the Chagga to sell their coffee to anyone other than the cooperative. There was to be no competition. Consequently, regulation and taxation of the coffee crop became much easier for the administration. Thus, supralocal centralized organizations to oversee the political and economic goings-on in the chiefdoms were in place more than fifty years ago. Meanwhile, on the ground the localized patrilineages continued to control most transfers of land between kin, but it was not for want of trying to bring all land matters under central administrative control that the colonial government failed to do so. In 1930, to this end, the government proposed that a system of land registration would be beneficial. This was met with strong demonstrations of protest from the Chagga. Any intimation that the existing system of land tenure might be interfered with in any way was unacceptable. Although in 1930 land was beginning to be bought and sold, the colonial government could not take the political risks involved in tampering with the "traditional" system of land tenure. The reaction had been too strong. The Chagga were extremely wary on this point. It remains to be seen whether now, more than fifty years later, the independent government will fare any better if it undertakes fundamental interventions. This cursory review of governmental, economic, and judicial reorganizations on Kilimanjaro, while lamentably limited as historical narrative, illustrates certain unstated but implicit definitional boundaries of the residual category "customary law." As perpetuated by colonial and post-colonial governments, the category obviously excluded most of those aspects of traditional law that had to do with political organization. Even where political offices were nominally continued, their attributes were carefully redefined by administrative fiat and legislation. Virtually all supralocal organization, political and economic, has been firmly under the control of regional and central authorities from the start of the colonial period to the present. By these means, political challenges to the state have been contained and certain local affairs have been directed from above. "Customary law," if understood as allowing local Sally Falk Moore people to do their own cultural "thing," should also be understooi have been a carefully restricted fragment of "tradition." As it turned out, the control of political affairs and of the coffee c did not preclude leaving the allocation of individual rights in local Ian. the patrilineages. Thus the principal productive resource, the land, remained in the domain of "customary law" to this day. As might expected, however, the new product, the coffee, is governed by a i set of "customs." Changes in the Content of Customary Law Many stated norms of kinship tradition remain as they were, howc the milieu has changed. With new kinds of property and a new enviroi i ■ ment, many new norms have also been generated to keep company wii'i the old ones. Some examples of these changes follow. Land Rights Conveyed from Fathers to Sons The two case histories at the beginning of this chapter show plain1-that, these days, the "customary law" rule that the youngest son shou'd inherit his father's homestead and garden is often honored in the breach In conditions of land shortage, other considerations prevail. The Chag: ■ make the moral assumption that some land should be available to an-, decent married man. Where there is no one else to provide it, sin* ■■ there is no virgin land to pioneer, a father should try to provide some í his own land for each of his sons. If a father has several plots in scatter« ■ I parts of the mountain, he may divide his holdings, sending one son aw,'. from the lineage cluster and keeping the other, or he may move himsel1. As indicated earlier, where the only solution available is to divide h1* own garden, a father may well do that, or if the father does not divide Upland before his death, his kinfolk may do so after he dies. But a fath-i may choose not to divide his land, and a son may find himself obliged '"• enter the migrant labor force or volunteer to be a pioneer in one of th--new cooperative villages. Whatever the pragmatic outcome in any particular instance, the "customary law" rules continue to be restated, and from time to time th ■' actually do guide behavior. What are we to make of this? Is the "custom ary law" of succession and inheritance in existence or not? And is such i rule a law if, though a son may make claims on his father and may [294] History and the Redefinition of Custom on Kilijnanjaro gitimize his claims by invoking customary rules, the son still cannot ,rce his father to provide for him in the customary way? Could he ever o so? Today if the son makes his claims before a group of lineage elders, ? may or may not succeed in getting them to decide in his favor. And /en if they do side with him, the father may or may not heed their rectives. Fathers had the right to disinherit sons in the customary 'Stem, and there is every evidence that they still claim this right and inretimes exercise it. When land questions get to the courts, the itcome may depend not on who is right but on who controls the key itnesses. It is probably fruitless to speculate on whether the practice of dividing nd represents a dynamic direction that might eventually end in an „:plicit change in the customary rules. It is clear that "customary law" statements can coexist as cultural artifacts contemporaneously with contradictory practices and contradictory norms. The Chagga emphasis on the existence of customs that only they are competent to administer is part of their use of tradition in their present political situation- Under these circumstances, there may be value for them in refraining from explicitly acknowledging change in the system to the extent of describing new practices as new rules. The definition of "customary law" that was a product of the colonial period has had substantial effects on the Chagga conception of the scope and nature of custom, and the scope and nature of their domains of autonomy. Recently announced plans for projected changes in rural land law will, if implemented literally, generate profound new disruptions. Yet the plans may be adapted to local conditions. The government notes in its announcement of the new village plan that local custom should be respected as much as possible (Agriculture Policy 1983). Chagga peasants in the rural areas may know nothing of the plans as announced, but they have almost a century of experience in using "customary law" arguments to minimize official intervention in the sphere of their control. They are likely to continue. Coffee Rights and Cash Rights: The Relative Position of Women and Men The general adoption of coffee as a cash crop on Kilimanjaro generated many rules and practices concerning the new kinds of property. These are now explained as analogies to customary rules or extensions of them to new items. So, for example, coffee bushes, being attached to the land Sally Falk Moore and grown by the Chagga in their individually held banana garde have always been considered the property of the male household he just as the bananas had been and still are. Most of the annual vegeta crops grown in the same gardens by the women of the household w regarded traditionally as female property and remain so today. Won also have rights in the crops of the sharnba lands they cultivate on plain. It is the duty of the woman of the house to feed the family, so cannot sell very much of her crop in the women s markets that dot uie map of Kilimanjaro, but she may sell some of it. Sometimes she sells bananas, but does so legitimately only after obtaining her husband's permission because the bananas, like the cultivated land, belong to him. A widow may acquire the temporary use of the banana rights until she dies, provided she continues to reside in the plot she occupied during her husband's lifetime. The coffee rights are usually given to a male relative of her deceased husband. These he holds as a sort of trustee and guardian of the widow and her children. He should spend the monies for their benefit to the extent that the husband would have done, but these successor-guardians often keep most of the proceeds themselves. If the widow has an adult married son residing in her compound, he often has this role. When the widow dies, all rights in the land, the bananas, and the coffee revert to the male line. The amount of cash a woman can obtain from her market sales is minute, compared with the cash a man is paid for the coffee he sells to the cooperative for processing and sale. The labor of women—indeed of men, women, and children—is mobilized in season to pick the coffee and to do preliminary processing. However, the women have no right to any share ofthat income. It is considered a male obligation to provide a wife and children with clothing, but that duty does not mean he has any obligation to supply her with cash as such. He may give her some cash specifically to buy a piece of cloth or a piece of meat, but he does not give her cash to spend as she likes. Thus, the rule that the coffee bushes and the coffee cash belong to men has meant that women have had much more limited access to the cash economy than their husbands have had. A seemingly contradictory rule is that the coffee rights can be separated from the rights to bananas and land. Should the male landholder choose, he can allocate land and banana rights and keep the coffee rights. Many men do this. Thus a father who has only one plot of land may have his youngest son and the son's family residing with him in his compound. The father may be quite willing to give the son a corner of the compound History and the Redefinition of Custom on Kilimanjaro ■ vvhich to build his house, and he may designate a small area in which the son's wife may plant her crops. He may even give his son the full rights to the bananas in some part of the garden. Yet the father can retain the coffee rights to bushes growing on the same land for himself. If the son dares pick the coffee in these circumstances, he is guilty of a theft. The legal idea of divisible and concurrent interests in the same property existed among the Chagga long before there was coffee on the mountain. Such interests existed with regard to land, crops, and cattle. The complex of rights in coffee and cash may be built on these old ideas, but the change in the economy has been so fundamental that these traditional analogies mask real innovations: the changed basis of the relative economic position of men and women, and the changed basis of the economic differentiation between households. The Buying and Selling of Land Rights in land on Kilimanjaro probably began to be available for cash around 1930. This inference is based on the fact that in 1927 the chiefs expressed strong disapproval and petitioned the governor to forbid the buying and selling of land (Griffiths 1930:60,88). Before that, "traditionally," land is said to have been transferred for a conventionalized payment of a cow and a goat. Land-plot histories suggest that many "traditional" transfers took place long before cash payment was a common possibility. The time at which cash became an issue was also the time at which a serious land shortage was beginning to be felt in some localities. One suspects that the reason the chiefs opposed sales for cash is that it threatened to reduce their prerogatives. In the customary system, all unused land in theory reverted to chiefly control. There was no land shortage in the nineteenth century. Political control over people and their labor was undoubtedly more important than control over land. Land had no value without labor to work it. The land was there for the asking. In the British colonial period, as before, the native authorities, the chiefs, and their appointees, and the district heads controlled the allocation of undeveloped land, or lands that had been "abandoned.'' (The latter differed from the land of people who were temporarily absent, who retained the right to reclaim previously held land when they returned.) In this period, the chiefs and their subordinates received substantial "gifts of thanks" for assigning these empty plots to others; they also often gave them to their own relatives. During the colonial Salk Falk Moore Period, chiefly COns as nnf f»„L,., , 0t succeed in thei- - History and the Redefinition of Custom on Kilimanjaro inclusions The two case histories from 1968 and the highly condensed descrip- th K ° °rbidden' and if an Í! ei>P]an- ^he buying ^ n fco" of a century in the life of the Chag§a show that wha* *s now ne buying and selling 0fhn/ ,g iř Was e*couraíre^ r n °g of ^considered "customary law" on Kilimanjaro has undergone many meta- were relatively rich men T^^^^or^^iJc^6^ ev|nl0rphoses. Radical changes in local and larger-scale asymmetries of t]JStUlaSga could not do. This ^^ ^ to ^«J to bu , "Se filf P°wer and in the economic milieu have made that inevitable. The a" mojt otners and enj0yed1S meanr ^ ^ey accurnul "ľ , ' wílá apparent continuities of customary law have changed in semantic con- tfiau most others and ■ *""iXieanr that they a " "^ li scatteredpiots. J°ye acontinuingenhanc A^ re^anÍtent. The relationships and resources to which "customary law" refers There was another & mC0me^OT^ the? aie not as they were. Rights in land in 1880 and rights in land in 1980, Jana—tne salaried m J^ PeoPJe who had however similarly stated normatively, are not rights in the same kind of that has grown enorm^ f° .tíl0Se ^th small bus6n°Ugíl casil to buj entity, nor are the claimants in the same situations. Jandfrom anyone who ^ ^ j*106 1950" Suc« menmessJs^a categorj The answer to the, question of what the category "customary law" 0 make a Jiving was re d *** 1 °r W^° because h h J ready to buj means in these circumstances depends on who is using the concept and mean that such buyers ha * Í & a"d Settie elsewh ^ ^^ a plof when iť ÍS being USed' The C0UrtS have theif °Wn Way of dealin£ with the the rise in population h h eC°me^reat'aiidhoide n does noff issue' ^ot^ in *^ie c°l°nia^ period and now, local courts were and are andgranri^„. 1. , as bee« such rt,„* .1. rs- OntřiPrv^*- f specifically granted jurisdiction over questions of customary law. Be- cause "customary law" is a residual category, and because it may be different in each locality, there is no specific legislation on the point of substantive content. On Kilimanjaro, "customary law" rules are to be determined case by case in the Primary Courts (as they were in the predecessor chiefly courts during the British colonial period). Two senior local laymen, the assessors, sit with each magistrate and are to be consulted on all points of customary law. The venerable assessors are assumed to have special knowledge of local norms and practices by reason of their standing in the community. Within this law-finding structure, at least three possible meanings are conflated. One is that custom is a set of traditional rules handed down from generation to generation. A second is that custom is a matter of present general practice. A third is a more formal judicial meaning— that custom is the residual category of local norms claiming tradition as legitimation that pertain to matters on which there has been no legislation or binding judicial rulings by the central state, yet which the state is willing to acknowledge and enforce. The actual content of such rules and practices are different from one place to another and change from one period to another. The very idea of "customary law" implies that there is a different kind of law with which it can be contrasted; so the concept itself is the ongoing product of encounters between subordinate local political entities and dominant overarching ones. Those encounters and the legal distinction Ä:hrand * S Krand ^ mwy soJ they often refer to tf, P '™es »*en surf, f r a goat- Indeed PfPle hold only thP hf°Ws «H «tie to Lnd Z^ "To4 as' ^ «gaJitarian^ "i UCt- A variety ^ľ T?™™, and'url, used to be P. ke multiple nlnř u ,,nBbo°^ party euM(>,. beneficial use J! g °f the right to n d g0 to Ae tiller h I pendent people,!^'0 Phce,s^ogates vvho™ ,'■ the inge™ous "«land belongs to tľ ^ P°,icies- Beside, IT aPPearance c -hen the ti]]er ^° *°*.ľ*° work it «^ government p0 ic a-«ers. Inheritan e?s^imtanjar°' ™^C"°n, ^ ^ are subject to a great deaf ľ™ °f kins%. The nľ ] reigns in ™ch Probablv „!„„..? ,dea,ofsituation»! ,„P . eruies, aslhav» ,!.„.. *«!-iP- The nľ ] reigns in ™eh P™baWy alwayfha'e , °fsitUat™al amend^e ™ Ü aS J We *w »ents in convenä0„:, „ľ" ^aniP«la«on 0^1^°^°°'^ £» ■ In name and - "^ hat are consonan^,™*65 adjust- eonce1Ved of as "cusuj^^ľ* ™e- »nohtnT§ °°ndi- Ut 'and W as « was no lo„ger " SÜ" f29Sj exists. Sally Falk Moore between law and custom have a long history in the West. In Tanzani colonial state (and now the postcolonial state) has had reason to certain kinds of limited local autonomy to be perpetuated. What is 1 locally specific legal custom is the result of that political decisic variety of governments and several generations of rural people hav very different reasons, collaborated to encode the division betwee central state and its subordinate peoples in this legal duality. All an pological studies of African law must be read in this light, and not si as accounts of traditional thought. ----.. juh Today, "customary law" on Kilimanjaro is as much a creature of present state and the present economy as it is a link with a past cult heritage. The theoretical implication is plain: the unit of analysis in study of such interdigitations must encompass both local and supral entities, and it must do so within a historically conceived framew Contextualization has always been the principal method of social anth. pology. But there is disagreement about the nature of the contexl I argue that the analytic context is not only a legal cultural system in fli Geertzian (1983) sense. The shifting political and economic milieu* .1. which the cultural elements are used are an integral part of the thropo-logic of such cultural forms. REFERENCES The Agricultural Policy of Tanzania. 1983. Dares Salaam. March 31. Bourdieu, Pierre. 1977, Outline of a Theory of Practice. Cambridge, Eng. ---------. 1984. Distinction: A Social Critique of the Judgment of Taste. Cambridge Mass. Bourdieu, Pierre, and Jean Claude Passerson. Z977. Reproduction. Beverl> Hill- Calif. Geertz, Clifford. 1983. Local Knowledge. New York. Griffiths, A. W. M. 1930. "Land Tenure Report, Moshi District." Copy in tl Manuscript Collections of Afričana, Rhodes House Library, Oxford, MSS. Afr. 1001. Gutmann, Bruno. 1926. Das Recht der Dschagga. English translation by A. M Nagler, "Human Relations Area Files" (New Haven, Conn.). Iliffe, John. 1979. A Modern History of Tanganyika. Cambridge, Eng. Lukes, Steven, ed. 1986. Power. New York. Maelezo ya Mahakama za Mwanzo. 1964. Dar es Salaam. Moore, Sally F. 1986. Social Facts and Fabrications: "Customary Law" on Kilima- jaro, 1880-1980. Cambridge, Eng. Plucknett, Theodore F. T. 1956. A Concise History of the Common Law. Boston [300] History and the Redefinition of Custom on Kilimanjaro Sahlins, Marshall. 1981. Historical Metaphors and Mythical Realities. Ann Arbor, Mich-___—. 1987. Islands of History. Chicago. SUihl, Kathleen M. 1964. The History of the Chagga People of Kilimanjaro. The Hague. ■\\]or, Sir Edward B. 1958. The Origins of Culture, Part I: Primitive Culture. New ^ork. \V illis, Paul. 1981. Learning to Labour: How Working Class Kids Get Working Class jobs. New York. First published 1977.