Customary Justice and the Rule of Law in War-Torn Societies (review)

The primary objective of Customary Justice and the Rule of Law in War-Torn Societies is the examination, assessment, and evaluation of issues that concern the framework and implementation of a new legal system capable of providing security, peace, and stability in countries emerging from prolonged violence and discrimination. Informed by case studies and an interdisciplinary approach, this book suggests how to accomplish these goals. For each of seven case studies, the authors depict a legal dichotomy: on the one hand, there is a modern legal system based on the streamlined, adversarial Western system, which is often preferred by Western or Western-educated elites; on the other hand, there are the consensus-oriented customary laws and practices that are rooted in a complex socioeconomic, political, and cultural ethos. Accordingly, the authors take due cognizance of the historical, political, and social factors that influence customary laws in their analysis of the cases.

The key point is that the elites are either unfamiliar with local customary laws or tend to ignore them. As a result, they pass and implement laws that are unfamiliar to the predominantly less-educated rural residents and are inadequate in resolving disputes satisfactorily. The result is that most people ignore these laws—a state of affairs that leads to contempt of the central authority and ineffective governance.

Legal pluralities are complicated by two key factors: one is that in all cases, there is not only one customary law, but several, each based on ethnicity or religion; the other is that even the modern system never really took hold, and what influence it had before the outbreak of war has dissipated because of widespread violence, thereby promoting the entrenchment of customary practices that are not only familiar to the natives, but also likelier to survive the conflict.

In the introductory chapter, Isser highlights the following issues:

1. a. Coexistence of a modern system of jurisprudence based on Western values that are alien to the intended beneficiaries and customary law and practices familiar to the natives;

2. b. Plurality of customary laws, themselves often based on family, extended family, ethnic, and/or religious affiliations; and

3. c. Complexity of the socioeconomic, political, and cultural contexts of these customary laws.

Chapter 1, on Mozambique, illustrates the foregoing issues. Its authors explain that there are many different ethnic groups, with as many different customary laws and practices, which sometimes transcend international boundaries. Unfortunately, this complicates the development of a legal system that is acceptable to all. According to the authors, the modern legal system is based on the Portuguese model. Before the civil war, the laws applied mostly to expatriates and urban elites; however, the war weakened judicial institutions and rendered the laws less effective. For this reason, the natives relied on customary laws, which have survived conflict intact because they are easy to apply, portable, flexible, well understood, and widely accepted.

Chapter 2 focuses on Guatemala. There, too, the dichotomy exists. On the one hand, there is a modern system, of Spanish origin; on the other, the local Mayan Law, which preceded the advent of Spanish colonialism. The authors underscore two factors that complicate the judicial system

1. a. Racial and economic discrimination, to which the indigenous population has been subjected since the arrival of the conquistadors. The outcome is gross inequality in income distribution in favor of the minority urban elite; and

2. b. Civil war, which not only displaced people, but also weakened the infrastructure of the modern system. Because of these factors, the locals view any central government's legal initiative with suspicion, because to them, it is likely to lead to other forms of discrimination. Therefore, they oppose or simply ignore such laws.

Chapter 3 deals with East Timor. As elsewhere, there is a legal dichotomy. East Timor, a former Portuguese colony subsequently occupied by neighboring Indonesia, has a modern legal system, superimposed on a local customary system. The modern system exhibits the characteristic infrastructural inadequacy observed...