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3.5.4 Efficiency of Autochthonous and "Modern" Institutions
Reforms of the
legal and regulatory framework very often demand the inclusion of autochthonous
instruments for conflict arbitration and the participation of local authorities in the
legal process. This can reduce the direct costs of a functional administration
considerably, for example, if intimate knowledge of the problem situation or short,
informal channels are utilized. However, a lack of democratic transparency may be the
price. |
Autochthonous
law and reformed legal framework |
The concrete
acknowledgment of autochthonous instruments for conflict arbitration in state law and the
practical boundary between the two legal spheres remain a challenge to be dealt with.
Autochthonous law is only mentioned vaguely, for example, in land laws or in the ordinances for implementation. The danger exists, therefore, that the
autochthonous law will neither be taken seriously or it will not be applied. The attempt
to codify "customary law" explicitly as a part of the legal bodies, for example,
to erect inflexible patterns thus, robs autochthonous law of its adaptability as was the
case in Laos. |
Should
autochthonous methods of conflict resolution be
embedded in modern state land tenure regulations? |
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| Indigenous conflict
solutions and modern state land tenure in Mozambique In one fascinating case, local state officials in Inhambane Province were
forced to call upon customary leaders to resolve several land disputes, as the local
population was unwilling to accept their decisions. The decisions made by the customary
officials were later "recorded" by local government officials and granted some
degree of official status
(Myers 1995:16) |
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The percentage of those
working in agriculture in village committees for conflict arbitration is declining
especially in South and Southeast Asia due to socio-economic development. Correspondingly,
values, goals and the type of arbitration decision have changed often to the benefit of
the non-agricultural portion of the population. Increasingly, the law of the central
government will go into effect. |
Effect of social mobility |
Conflict arbitration which
is based on autochthonous rights treats the involved parties differently in Africa.
"Equal in the eyes of the law" according to Euro-American understanding is only
rarely ensured. Women usually receive rights to land only via their husbands; the young
are in a weaker position compared to the older generations in land conflicts; the
old-established have legal priority over immigrants; and the crop farmers possess more
comprehensive and better defined land rights than pastoralists. The conflict between state
law which is based on equality regardless of who the person is, his sex, his ethnic group,
etc., and the legal reality is virtually insolvable. |
Inequality of legal
entities on autochthonous law |
Autochthonous land tenure can rarely be applied to settle conflicts that
reach much further than the community. It often cannot be applied in the following
conflict situations: between neighboring communities whose (often fuzzy) boundaries were
created by administrative actions, between smallholders and expanding agricultural
enterprises, or between smallholders and the government.
As long as functional lower court authorities are non-existent and
professional associations of attorneys are not
permitted, then the effect of state conflict arbitration will be limited to the cities. If
only loose connections between both systems exist, then the positive aspects of each will
be systematically played off against one another and undermined. The discrepancy between
the demands of reform and the legal reality creates new conflicts. |
Both systems have a limited
"range" |

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