Formal Law as a Magnet to Reform Custom
The question of the role of statutory law in social environments permeated by custom and traditional norms is particularly important when the statutory law aims to correct social inequalities embedded in the customs. The conventional view is that formal law often fails to take root in custom-driven societies, especially when the formal law conflicts with custom. We present a simple analytical model with elite members and commoners as contendants in front of a customary judge. If unhappy with the customary judge’s verdict, a contendant can make recourse to a formal court, but at a cost of social exclusion. We find that from the low activity of formal courts one cannot infer that the statutory law is irrelevant. We describe an indirect (“magnet”) effect of formal law: by serving as an alternative forum for commoners, the formal system induces the customary judge (who tries to keep commoners within his jurisdiction) to adjust his verdicts toward the interests of commoners. We illustrate this mechanism through an in-depth case study of the so-called PNDC Law 111 on Intestate Succession in Ghana. Radicalism in legal reform may defeat its own purpose: under certain conditions, a gradual reform better serves the interests of the disadvantaged.
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