Interests in Land in the Customary Law of Ghana_ A New Appraisal翻译.doc

INTERESTS IN LAND IN THECUSTOMARY LAW OF GHANA A NEW APPRAISA SAMUELK. B. ASANTEt INTRODUCTION 简介 Yet a study of the decisions of Ghanaian courts discloses a disconcerting conflict between judicial enunciation of customary doctrine and contemporary practice in the social process. This conflict is hardly surprising. In Ghana, the reception of English common law meant the adoption of English legal traditions and attitudes. For some ninety years,3 the customary law has been administered in the upper levels of the judicial hierarchy by British or British trained judges, whose jurisprudential take-offis analytical positivism,4 and who regard a stringent doctrine of stare decisis as an axiom of the judicial process.5Thus a meaningful and scientific clarification,as well as a purposeful application, of contemporary customary law has been menaced by a tradition which restricts the orbit of the law to the narrow confines of authoritative decisions, and strictly commits decision-makersof today to the dubious wisdom of past experience. Nowhere is this cleavage between textbook law and social reality more glaring than in the customary land law of Ghana. 加纳法院决定的研究揭示了一个令人不安的冲突，司法表明习惯学说与当代社会进程中的实践。这种冲突是不足为奇的。在加纳，英国普通法的接受意味着英国法律传统和态度的采用。近九十年来，一直给予习惯法在司法层次上由英国或英国训练有素的法官，其“起飞”是分析实证主义法学，谁作为一个先例的严格教义作为司法过程中的一个公理。因此，一个有意义的和科学的澄清，以及有目的的应用当代习惯法一直受到传统制约法律的轨道的权威决定的狭小的范围内，并严格实施决策者今天过去经验的可疑的智慧。教科书法与社会现实之间的分裂，比加纳习惯上的土地法更为明显。 This article is concerned with a reappraisal of the customary scheme of interests in land in the light of the changing conditions. First, the traditional scheme of interests in land will be outlined; second, an attempt will be made to analyze the various social and economic pressures impinging on the traditional scheme; third, the reaction of the courts to these phenomena will be considered and, finally, it is proposed to advert briefly to the increasing involvement of the Central Government in the administration and regulation of land and its impact on the customary sche