Since 2010, the World Bank has published its «Women, Business and the Law» report every six months. We use four de jure variables included in this report to represent formal recognition of traditional law. The report proposes a distinction between customary and personal law. According to the report, «personal law refers to non-customary legal systems derived from traditions or doctrinal texts that are sometimes not codified» (World Bank, 2018:27). It includes laws derived from religious beliefs, governing areas such as civil status, crime and trafficking. Since religious roots seem to be of overwhelming importance to this category, we call them religious law here. The legal status of social norms can have important consequences for public order. Gouda and Gutmann (reference Gouda and Gutmann 2019) show, for example, that Muslim countries only have an increased level of discrimination against minorities if their constitutions officially recognize Islamic law. All three scenarios are based on power. The more powerful the public authorities are vis-à-vis citizens, local leaders, etc., the less relevant traditional law becomes, even if traditional law would be preferred by its potential users. In sum, almost all of our arguments are based on power relations.
They refer to the relative power of the center and periphery, but also to the relationship between politicians and citizens. However, power is difficult to determine empirically. The question is therefore whether it is possible to derive a number of empirically verifiable assertions from it. This study can only be a first step towards identifying the factors that make traditional law relevant today. Decades ago, Eisenstadt (reference Eisenstadt1959) proposed a method for systematizing the seemingly infinite heterogeneity of primitive political systems into a limited number of types. In this study, we find that there are important differences between customary law on the one hand and religious law on the other. Explicitly taking into account the heterogeneity of traditional law in terms of content is a wish. Ex ante, it is not clear whether this heterogeneity is greater between countries than within countries. One of the tasks would therefore be to collect data on traditional law at the regional level.
It would also allow for useful studies in countries, which should be carried out especially in large countries such as Brazil, India or Nigeria, where a high degree of heterogeneity is to be expected. We now propose to examine three types of situations in which the likelihood of traditional law prevailing depends on the power of the central government, both vis-à-vis local leaders and citizens as a whole. These three situations show the potential relevance of traditional law as a set of second-order institutions in a second-choice world (Rodrik, reference Rodrik2008). A legal custom is the established pattern of behavior that can be objectively verified in a particular social environment. Legal action can be filed to defend «all that has been done and legally accepted.» The idea of prescription is linked; A right enjoyed by a long habit rather than by positive law. [1] Figure 2. Determinants of the relevance of traditional law. Table 2. Correlation between traditional law and its immediate determinants In Section 2, we define some key terms. Section 3 develops a number of hypotheses about the factors that could determine both the extent of the application of traditional law and its perceived quality. Section 4 describes our data sources and presents descriptive statistics.
In Section 5, we present our estimation approach and regression results. We identify some important factors that determine the de jure status of traditional law, the extent to which traditional law is used today, and its perceived quality. Section 6 identifies outstanding issues that should be addressed in future work. So far, the argument has focused on the interests of political elites, be they colonizers, national politicians, or local leaders. The function of institutions, however, is to structure the recurring interactions between many actors well beyond the elites. These actors constitute the demand side of traditional law and are an important factor in explaining the prevalence of traditional law. Acemoglu et al. (reference Acemoglu, Cheema, Khwaja and Robinson2020) show, for example, that informal and traditional jurisprudence could be used mainly because formal state justice is perceived by citizens as ineffective. Acemoglu and Robinson (reference Acemoglu and Robinson 2012: 242f.) cite Sudan as an example of a lack of centralization due to local political interests: «Political centralization would have meant that some clans would have been subject to the control of others. But they rejected such domination and the surrender of their power that it would have entailed.
Footnote 8 The persistence of traditional law could therefore indicate that local leaders are relatively powerful compared to the central government. Table 5 also explains the differences between the three WJP quality indicators. Despite the limited size of the WJP dataset, these regressions are based on at least 80 observations. Of our four possible explanatory variables, only the proportion of European descendants correlates with current events at conventional levels of significance; The higher their share of the population, the less timely decisions are made about traditional dishes. We try to understand this by pointing out that in countries with higher proportions of European descent, traditional dishes initially play only a marginal role and undermine their ability to exploit (dynamic) economies of scale. Second, a state may exist, but it offers institutions that do not meet the needs of private entities. In this case, the dissemination of traditional law is a consequence of the law applied by the State, which does not reflect the interests of its private users. If the state and its government are very powerful, they can force private law subjects to resort to external institutions, even if they are not designed according to the taste of private law subjects. Logan (reference Logan2013), for example, argues that traditional law survives because it enjoys legitimacy, not because the state is particularly weak. Footnote 9 Oto-Peralías and Romero-Ávila (reference Oto-Peralías and Romero-Ávila2014) argue that the chiefs of some African countries abused their position after colonization began, which reduced their legitimacy and reduced the likelihood that traditional law would continue to play an important role in those countries.
The reality is very different from what Max Weber expected. Wojkowska (reference Wojkowska2006) reports statistics from a number of African countries where most legal disputes are resolved informally. Malawi handles 80-90% of disputes through the usual courts. In Bangladesh and Burundi, these rates are estimated at 60-70% and 80% respectively. More than 80 per cent of Sierra Leone`s population is common law, as are 90 per cent of land deals in Mozambique and Ghana. Harper (reference Harper2011) cites a UNDP survey in Indonesia that found that formal and customary justice systems were used as frequently, but that users were more satisfied with the performance of the usual system. Fifty percent of all respondents felt that the formal justice system favoured the rich and powerful, while only 15 per cent had this view of the regular justice system. Respondents in Somaliland and Puntland rated their customary law systems on an average score of 4.2 on a scale of 1 to 5, comparable to their Islamic legal system. The state legal system scored only 3.1 points. A number of questions seem simple: (1) How can traditional law be quantified and therefore compared between countries? This is an extremely difficult question because traditional law is often not codified, which means that we can only observe its application, examine its perceived quality, the status it enjoys in society, etc. (2) Which companies formally recognize traditional law? How many countries have constitutionalized it? Where can you rely on the state to enforce traditional law? In summary, what is the formal legal status of traditional law? 3) What factors determine the recognition and application of traditional law? Is it used because it is better than the law enforced by the state or because it is virtually impossible to opt out? 4) What factors determine the perceived quality of traditional law by the population? In this article, we will look at each of these questions.