The publicity “defect” of customary law

This chapter examines the extent to which dispute resolvers in customary law systems provide widely understandable justifications for their decisions. The chapter first examines the liberal democratic reasons for the importance of publicity, understood to be wide accessibility of legal justification, by reviewing the uses of publicity in Habermas's and Rawls's accounts of the rule of law. Taking examples from Sierra Leone, the chapter then argues that customary law systems would benefit from making local dispute resolution practices, such as “begging” from elders, witchcraft, and customary law judgments, more widely accessible. The chapter concludes that although legal pluralism is usually taken to be an analytical concept, it may have a normative thrust as well, and that publicity standards would also apply to formal courts in developing countries, which are also typically “defective” along this dimension. From the standpoint of theories of the liberal democratic state, contemporary customary law systems in developing countries can be considered defective along several dimensions. The first “defect” involves the substance of the laws. Although the norms and rules across customary law systems vary enormously, the following characteristics are not uncommon. Usually, customary laws do not allow women to inherit assets, manage jointly held property, or seek divorce. Customary laws permit parents to predetermine the occupations and life destinies of their children. Customary laws not only tolerate inequalities in status and power but often understand them to be essential for social order and grant unique prerogatives to elder males and other locally powerful individuals. Kin and co-ethnics of the dispute resolvers receive preferential access to and treatment under the law. Weak individual, or collective, land titles dampen investment incentives. Assault, rape, and murder are sometimes conceived as property crimes. To redress a crime or even an insult, collective punishment of the family or village of the perpetrator can be appropriate. Ostracism from the social community is acceptable under some conditions. Processes of adjudication and punishment employ thin standards of procedural fairness. Overall, customary laws do not valorize the classic liberal rights - personal dignity, bodily integrity and privacy, free choice of a life plan - or many of the key liberal democratic political rights, such as the right to political membership and equality under the law.