Traditional law in times of the nation state: why is it so prevalent?

Summary of JOIE article (First View, 18 March 2020) by Jerg Gutmann and Stefan Voigt, Institute of Law and Economics, University of Hamburg). The full article is available on the JOIE website.

The existence of traditional law is frequently associated with pre-modern, pre-nation state institutions. Max Weber (1919) famously defined the state as an organization that “successfully upholds the claim to the monopoly on the legitimate use of physical force”. Traditional law, as it is not enforced by state agents but by others, is at odds with this idea of the state. Therefore, one might consider it the remnants of some long-gone era and expect it to vanish over time.

Reality looks remarkably different from what Max Weber predicted. Traditional law is alive and kicking. It is not only used widely in developing countries, but it also still plays a role in the legal systems of highly developed Western democracies and certainly not for lack of state capacity. Given that, it is striking how little we know about traditional law’s content, its relationship with state-enforced law, and its compatibility with the rule of law. There is a vast anthropological literature dealing with some of these aspects, but those studies are focused on particular ethnic groups rather than on a large set of nation states. This makes it almost impossible to draw general conclusions regarding the role of traditional law in modern-day societies.

In our article, we have asked a number of straightforward questions: (1) How can traditional law be quantified? (2) What is the formal legal status traditional law enjoys? (3) What are the factors determining the recognition and use of traditional law? (4) What are the factors determining the perceived quality of traditional law among the population?

Measurement of the rule of law should not only take the enforcement of legislation, but also the substantive quality of the law into account (Gutmann and Voigt 2018a). One way to operationalize the quality of legislation is to ask whether it is universalizable, i.e. whether laws apply equally to all members of society. It has frequently been claimed that traditional law discriminates against a number of social groups (such as women, the young or the poor), which would make it incompatible with the rule of law (e.g., Morrisson and Jütting 2005). Others have claimed that the exact opposite is true and that the formal justice system in many countries is more likely to discriminate. We conduct the first cross-country analysis to evaluate these competing claims and we use the compatibility of traditional law with the basic traits of the rule of law as our main indicator of the quality of traditional law. We choose this as a benchmark although the rule of law is inherently a Western concept and some societies or political leaders might not agree that it is an appropriate benchmark for the quality of their legal system (see Gutmann and Voigt 2018b).

Overall, our study adds to the literature by taking stock of traditional law from a cross-country perspective. We describe the relationship between three important dimensions of traditional law: its legal status, the extent of its use, and its perceived quality. Data from up to 134 countries shows that traditional law varies across countries in different dimensions, such as its timeliness, its impartiality, and its protection of basic human rights. Societies that rely extensively on traditional law exhibit low levels of the rule of law and per capita income. Historical and geographical factors are important determinants of the contemporaneous recognition and use of traditional law.

Defining and categorizing traditional law

We refer to traditional law as consisting of (internal) institutions based on a rule that is not subject to deliberate human design and enforced by actors that are independent from the state (see Voigt 2013 for a general definition of institutions). In our article, we develop a systematic terminology that clearly delineates traditional law from other law and different forms of traditional law from each other. Important for this novel categorization are two dimensions: how is law created and who enforces it?

Empirical results

In our empirical analysis, we find that the formal status of traditional law is mainly driven by the proportion of European descendants and state antiquity. The higher the share of European descendants, the lower the likelihood that traditional law will be formally recognized by the state. Regarding state antiquity, however, it is important to distinguish different forms of traditional law: the likelihood that customary courts will be formally recognized decreases with the age of statehood, whereas the likelihood that religious courts will be recognized increases.

We ascertained the actual use of traditional law with regard to land rights, a category that – given its importance in societies with a large share in agriculture – seems of crucial importance. It turns out that people in countries in which Islam plays an important role are more likely to rely on traditional land rights. The opposite holds true regarding the share of European descendants in a country: the higher their share, the less people rely on traditional land rights.

We hope that our paper contributes to a broader discussion inquiring into both the quality of traditional law as well as its interaction with state-created and –enforced law.

References

Gutmann, J., and S. Voigt (2018a), ‘The Rule of Law: Measurement and Deep Roots’, European Journal of Political Economy, 54: 68-82.

Gutmann, J. and S. Voigt (2018b), ‘The Rule of Law and Islam’, in C. May and A. Winchester (eds), Handbook on the Rule of Law, Cheltenham and Northampton: Edward Elgar, pp. 345-56.

Morrisson, C. and J. P. Jütting (2005), ‘Women’s Discrimination in Developing Countries: A New Data Set for Better Policies’, World Development, 33(7): 1065-81.

Voigt, S. (2013), ‘How (Not) to Measure Institutions’, Journal of Institutional Economics, 9(1): 1-26.

Weber, M. (1919), ‘Politics as Vocation’, in T. Waters and D. Waters (eds, 2015), Weber’s Rationalism and Modern Society: New Translations on Politics, Bureaucracy, and Social Stratification, New York: Palgrave Macmillan, pp. 129-198.

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