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Alternative dispute resolution, Africa, and the structure of law and power: the Horn in context

  • Elisabetta Grande

Extract

Data collected by comparative legal scholars show that legal transplants usually take place from more complex societies to less complex ones. By contrast, the alternative dispute resolution (ADR) movement that has recently developed in modern societies has been described as a return to a simple model of dispute settlement used in the past and in modern non-Western societies. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies? In this article I will argue that this is not the case. Far from being a transplant from the southern to the northern hemisphere, ADR seems indeed to be a modern legal institution born from the retreat of the state from some of its traditional functions. A different question thus needs exploring: is ADR, at least, an institution that can easily be transplanted to Africa where the original transplant of the Western state has failed? In other words, is conciliatory ADR more similar to the African way of dealing with conflicts and consequently to be recommended as the dispute resolution mechanism for modern African states? The question appears to be appropriate in situations such as the one in the Horn of Africa—particularly Eritrea—where the new political leadership is confronting the difficult task of building a new legal system.

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1 Cf. Watson, A., Legal Transplants: An Approach to Comparative Law, Edinburgh, 1993.

2 On this see Strange, S., The Retreat of the State—The Diffusion of Power in the World Economy, Cambridge, 1996.

3 On the history of the Horn of Africa see Lewis, I. M., A Modem History of Somalia: Nation and State in the Horn of Africa, Boulder, 1988.

4 On the new Ethiopian constitution see Mattei, “The new Ethiopian Constitution: first thoughts on ethnical federalism and the reception of Western institutions” and P. Brietzke, “Ethiopia’s ‘Leap in the Dark’: ‘private’ federalism and self-determination in the new Constitution”, both in Grande, E. (ed.), Transplants, Innovations and Legal Tradition in the Horn of Africa, 1996.

5 On Eritrea’s struggle for independence see Iyob, R., The Eritrean Struggle for Independence: Domination, Resistance, Nationalism, Cambridge, 1995.

6 There is no one single tradition in Africa. I am therefore speaking in general terms to give a very basic picture of what is a common African phenomenon.

7 Compare, among others, Gulliver, “Disputes settlements without courts: the Ndendeuli of southern Tanzania”, in Nader, L. (ed.), Law in Culture and Society, Chicago, 1969;Colson, E., The Social Organisation of the Gwembe Tonga, Manchester, 1960.

8 On the principle of unanimity as opposed to the one of majority in African society see R. Sacco, “Conclusions”, in E. Grande, op. cit., n. 4.

9 On this, see Iyob, op. cit., n. 5, 39.

10 The very idea of communitarian justice, neighbourhood justice centres, etc., implies the retreat of state law in favour of an “informal” legal system; see, for example, Auerbach, J. S., Justice Without Law? New York, 1983.

11 On the explosion of ADR techniques, particularly as regards mediation, see Macfarlane, J., Rethinking Disputes: The Mediation Alternative, 1997.

12 Expressing a widely-held opinion on solutions reached through mediation—as a means to solve disputes opposed to adjudication—Macfarlane states: “As such they reflect consensus and reconciliation rather than a game with winners and losers.” Ibid., 4.

13 See Watson, op. cit., n. 1.

14 In the sense indicated by Nils Christie’s seminal article: Conflict as property”, (1977) British Journal of Criminology 1.

15 Nader, L., “Civilization and its negotiations”, in Caplan, P. (ed.), Understanding Disputes, The Politics of Argument, Oxford, 1995, 39.

16 Cf. Evans-Pritchard, E. E., The Nuer, Oxford, 1940.

17 Reference to the extended case method pioneered by Elizabeth Colson is obligatory here.

18 See Guadagni, M., II modello pluralista, 1996.

19 … “the term folk law has been coined, as a more neutral term to indicate that whatever the law is under which people live, whether traditional, customary or newly made, it is the law of the people and should be taken seriously as such” states Benda-Beckmann, in “Why bother about legal pluralism? Analytical and policy questions: an introductory address”, 1997, 14 Commission on Folk Law and Legal Pluralism, Newsletter XXXIX.

20 See Stein, P., Legal Institutions. The Development of Disputes Settlements, London, 1984, 14: “ … a court tends to define the issue between the parties more narrowly than the informal procedures allowed. The identities of the parties, their previous relations with each other are no longer relevant factors to be taken into account.”

21 On legal pluralism in contemporary Western societies cf., most recently, Benda-Beckmann, op. cit, n. 19.

22 See Mattei, “Socialist and non socialist approaches to land law: continuity and change in Somalia and other African states”, (1990) 16 Rev. Socialist L. 17.

23 The protection afforded by the group to women in the traditional Ashanti land tenure system has been recently compared with the individual and disadvantaged position of women in modern Ghana: see Seth Opuni Asiama, “Crossing the barrier of time. The Asante woman in urban land development”, (1997) 2 Africa 212.

24 Hobsbawm, E. and Ranger, T., The Invention of Tradition, Cambridge, 1992.

25 See Mattei, “Three patterns of law: taxonomy and change in the world’s legal system”, (1997) 45 American Journal of Comparative Law 5.

26 Recently in the context of legal transplants see Legrand, E., “The impossibility of legal transplants”, in (1997) 4 Maastricht Journal of European and Comparative Law 111.

* Department of Juridical Sciences, University of Trento, Italy.

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