In Traditional Societies, the Jury Is out on Legal Reform
Ghai, Yash, UNESCO Courier
Customary laws do not always easily fit into human rights development theories. But they can play an indispensable role in ensuring justice
Numerous countries in the South recently have embraced the idea of the rule of law in the conviction that legal reform helps nurture nascent democracy and market-oriented economic reforms.
Despite very important advantages in establishing a rule of law regime, it is nevertheless a long-term enterprise. Meanwhile there are certain costs and problems - so often ignored by legal reformers - with the shift to law as a primary mode of organization and framework for policy.
In many societies it is foolish to think of new legal institutions as a panacea. We cannot assume that reliance on legal reform will necessarily succeed, or that it is appropriate in all cases. Psychological attitudes and social conditions necessary for the rule of law may be absent in certain societies. The rule of law is not easily established in societies where the notion of power is personalized, rather than located in an office. Nor is the concept of the limitation of power readily assimilated in societies dominated by monarchs or chiefs or other kinds of hierarchy. States which are largely agrarian, based on the peasantry and under the influence of traditional ideologies, are less likely than largely urban societies to demand the accountability from their rulers that is essential for the rule of law. Thus constitutional reforms in imperial Ethiopia did little to limit or regulate the government. As a result, introduction of a rule of law in a Western sense may not only fail, but also, it could backfire: that is to say, some of the consequences of reliance on law as a method of social regulation may be negative.
Contemporary discussions of the strategy of law tend to overlook the reality of countries that are largely "pre-modern". Modernity is associated with a concept of "rationality" based on a belief in the scientific method, and confidence that society can be changed and reformed by conscious design. Law itself is a deliberate creation, aimed at clear objectives and regulation. In that sense the role of state law in modern societies which have been integrated on the basis of the economy, particularly the market economy, and which are closely connected to the apparatus of the state, can be different from that in societies which are still dominated by customary values, institutions and practices.
Cultural factors and local loyalties
Pre-modern societies in most Asian and African states have their own systems of governance and dispute settlement. Cultural factors are more, or at least as, important as the economic. Local loyalties transcend loyalty to the state. Community pressures are more powerful than state sanctions in influencing social behaviour. Justice according to local expectations and by local institutions is more highly valued than that of state law and tribunals.
Customary laws and methods do not always easily fit into the human rights development theories which now dominate the redesign of state structures, such as the separation of powers or professionalization of justice. There are undoubtedly problems with traditional or informal justice. But it is an important resource and we should attempt to improve its efficacy rather than to eliminate it. Traditional justice can form the basis of inexpensive, participatory and accessible forms of justice.
A particularly apt illustration of the role of customary law comes from the persistence of belief in witchcraft in a large number of societies. Many aspects of the community, such as reciprocity, arrogance or private accumulation of wealth may be more effectively managed through fear of punishment for transgressions by witchcraft than by state regulation. National criminal law may command little allegiance in a community which does not identify with the state, and which has its own moral standards. …