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Formal Law: where is it coming from? How far is it rooted in informal law?

Formal Law: where is it coming from? How far is it rooted in informal law?

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Formal Law: where is it coming from? How far is it rooted in informal law?

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  1. Formal Law: where is it coming from? How far is it rooted in informal law? Okereafoezeke (2002): selected aspects of justice in “contemporary traditional” Igbo land. He explores law-making techniques and the growth of Nigeria’s native justice systems, principles of Igbo traditions, customs and laws, and the enforcement of Igbo judicial decisions. Dalgleish (2005): challenges the view that the European colonialists brought criminal justice and law and order to Africa by using the work of scholars of African history to highlight the existence of criminal justice systems in Africa, in particular pre-colonial West Africa.

  2. Formal system also favours the dominant class (not less than the informal system?) • Conditions of access to justice are extremely unequal (fear of retaliation) • Judge also fears retaliation! 3. Formal Law does not always dominate the informal. (mainly cases of change of lineage chieftain) Ex: case in Ouidah where formal judge refer back disputants to local chief

  3. 4. Distinction between ‘judging’ and ‘mediation’ (Alternative Dispute Resolution) is often very thin for local chiefs 5. Perhaps other interesting case studies of legal pluralism in action: Le Meur (1999): Benin decentralisation is generally seen as a success story, the situation at the local level seems to be much more elusive. Boundaries between state and society, public and private spheres, economy and politics are blurred and the local state often appears unable to "administer the law" and regulate public affairs. Institutional pluralism tend to prevail.

  4. -Pontie & Pilon (1990): in land Moba-Gurma (Togo), case studies of cases solved by a canton judge who is required to apply formal law in a context of informal law. - Lund (1999): Property Disputes in Burkina-Faso

  5. What would happen if the game was repeated? - To strike a balance between poor and rich the judge would once in while opt to favour the poor. - If all its judgement are in R’s favour he will be loosing its hold on its community. For a judge there is indeed prestige but also some sort of equity to maintain his position. - in certain cases (Cotonou) judges (or chiefs) are elected → need have a balance in pro-R/pro-P

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