Blood, Land, and Sex: Legal and Political Pluralism in Eritrea. By Lyda Favali and Roy Pateman. Bloomington and Indianapolis: Indiana University Press, 2003. Pp. xvi, 352. $54.95 cloth, $24.95 paper.
This is the best book I have read this year. Not only is it a well organized presentation of Eritrea's plural legal system, it also opens doors for intriguing comparative studies in the Horn of Africa, which has had a plural legal system throughout its recent history. The experiences of the countries of the Horn have been studied within the individual countries as is the case of this book, but legal studies are rare and if found they are mostly done by anthropologists. Comparing similar legal systems in the region will make possible the needed interaction and use of other experiences such as that of the Sudan.
The book is written and organized in such a way that it is accessible to both scholars and students. Favali and Pateman provide valuable material on Eritrea, which is perhaps the least studied country in the Horn of Africa. In addition to the history and copious empirical facts about the country, the authors combine their scholarly abilities to navigate the annals of the plural legal system. Indigenous law, colonial legacy, and legislated "modern" laws are the components of that system. The actors producing these laws are identified as "state, ethnic groups (producing traditional law), religious groups and the international/ transnational community."
The book's preface gives an overview of the rare primary sources that the authors researched and translated from Italian, English, and local languages. Comparative law techniques and theories such as "legal formant" and "transplant" are used to analyze the interaction and overlapping of the various actors and norms in the Eritrean system. Indigenous norms or customs have survived legal transplants of colonial laws and Shari'a; and continue to be an important part of the legal system of Eritrea. The legal formant approach, which comprises all aspects of a state's legal system, allowed a clear contextualization of the history and the culture of the law and the interaction (or lack thereof) of the various systems and actors. The authors are also able to articulate the serious challenges to a "modern" legal system in that country. Chief among the obstacles is the weak judiciary that comprises a good number of individuals who have had minimum legal training or no legal training at all.
While colonial legal systems were transplanted to serve the colonizer's needs, another system of law, namely the Shari'a, replaced other customary systems through the conversion of certain groups to Islam. Therefore as an "imported' system the Shari'a did not just affect the local legal systems, as it affected trust law in England, for example; it uprooted a previous system. I realize that a discussion of how religious norms can revolutionize law within a short time is outside the scope of this book.
The authors choose certain areas where the components of the plural system act at the same time and sometimes collide with, and often paralyze, the state. The main areas they have chosen are: land, murder and bodily injury, female circumcision, and gender relations. Land disputes are where the hierarchy of legal actors appears. Local arbitration and mediation is the norm for individual disputes; however, state courts will take over when arbitration or mediation fails. The book covers all types of land disputes, including Eritrean disputes with its neighbors regarding borders and offshore islands. …