Ordinary people in low and middle-income countries1 generally know two faces of justice, the “Wig and Gown” and the “Sassy-Wood,” faces of justice, which belong to the formal and customary systems of dispute resolution (e.g., pictures below). These two faces of justice are increasingly misaligned with the changing reality of a globalized yet multicultural world. A third face of justice appears to be needed. In times gone by for most of us, people used customary justice systems to resolve their disputes, ranging from the Cheyenne ‘conference of tribal chiefs,’7 to the Afghan Jirgas, to the Liberian chiefdoms, to the Amazonian shamans. While many of these systems continue to operate today, the European colonization process of the past few centuries brought with it a new dispute resolution system to all corners of the planet. In some places the old forms were completely abandoned while in others a dual arrangement emerged. Parallel systems of dispute resolution coexisted and interacted in most countries. In some places, customary justice was formally and hierarchically integrated into the formal (European) courts,8 while in others they remained in operation de facto, mostly ignored or tolerated by the state. The formal courts were perceived mostly as instruments for resolving disputes among the descendants of European colonizers, the global and local business community, and the local elites. By design, in most colonies and pseudo-colonies around the world, formal courts were understood to be mostly inaccessible to ordinary folk. Formal courts were not seen and embraced by the masses as their cherished property, as “a progressive force on the side of the individual against the abuse of power by the ruler.”9 Several new factors have emerged in the last few decades, starting with the end of the Cold War, which pose a serious challenge to the existing arrangements. These factors include, among others, increasing globalization and integration of markets; growing migration and urbanization; exponential expansion of access to communication technologies; unprecedented universal access to information for all segments of the population; growing cultural self-assertiveness;10 and growing awareness among marginalized populations about their own rights (and decreasing tolerance to abuses and exclusion). The Arab Spring is the most graphic example of the powerful impact of the combination of these factors. In addition, with the fall of the Berlin Wall and the ascendance of more open and democratic governments, we are witnessing a revival of deeply-rooted cultural traditions in various parts of the world. For instance, “Shamanism is becoming more popular in South Korea in recent years, after being dismissed as ‘superstition’ and ‘delusion’ by past military governments.”11 The impact of these changes for the machinery of justice is clear: the “Wig and Gown” justice of the colonizers does not answer to the needs of an increasingly culturally assertive and well-informed population, at the same time that the “Sassy wood” justice12 of the local chiefs is no longer effective in a globalized world. The system is broken. Goal and central argument: This research explores the institutional and procedural architecture that enables or limits access to formal and informal dispute settlement mechanisms to resolve simple disputes among individuals in developing countries.13 The goal is to investigate and document how the courts and procedures inherited or copied from Europe accommodate the basic dispute-resolution needs of the population, as compared to customary justice systems and other less formal mechanisms. Particular attention is given to Afghanistan, Bolivia, Colombia, Ghana, Kenya, Liberia, Malawi, Nigeria, Pakistan and South Africa, which are countries from different cultural traditions, legal families,14 and levels of development. The central argument of this dissertation is that the urban poor (including newly arrived migrant peasants and members of indigenous communities) in developing countries, are unable to keep their traditions and ancestral dispute settlement mechanisms alive in big cities, while they are also unable to understand and utilize what to them are abstruse legal procedures of the formal courts. A proposal is made at the end of the dissertation, which includes a novel conceptual framework to analyze this problem,16 and a methodology to quantify the multiple dimensions of the same problem in low and middle-income countries throughout the world.
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Aug 1, 2018
Patrick Joseph Mchugh + 1
Open Access