Traditional law in times of the nation state: why is it so prevalent?

Abstract

<jats:title>Abstract</jats:title><jats:p>In many modern nation states, both rich and poor, traditional law to this day plays an important role. Given the almost universal prevalence of traditional law, it is surprising how little we know about it. This is the first study that tries to take stock of traditional law from a cross-country perspective. We are also interested in the compatibility of traditional law with state-enforced law and, in particular, with the basic traits of the rule of law. Based on a sample of up to 134 countries, we find that no ‘typical’ traditional law exists, but that traditional law varies in many dimensions such as its timely enforcement, its impartiality, and its protection of basic human rights. Societies that rely extensively on traditional law score low regarding both the rule of law and per capita income. Historical and geographical factors are important predictors of the contemporaneous reliance on traditional law. State antiquity, for example, reduces the prevalence of traditional law, as does a high share of descendants from European populations.</jats:p>

Testing Todd: family types and development

“…10 Although (historical) liberty in the family has not been related to control perceptions, Nikolaev and Bennett (2016) and Pitlik and Rode (2016) demonstrate a robust effect of economic freedom on control perceptions. 11 Gutmann and Voigt (2020) hypothesize that the historical practice of endogamy is linked to a higher relevance of traditional law under modern nation states, but they find no empirical evidence for this conjecture.…”

“…Gutmann and Voigt (2020) hypothesize that the historical practice of endogamy is linked to a higher relevance of traditional law under modern nation states, but they find no empirical evidence for this conjecture.…”

Everyday Choices

“…They regulate marriage and biological reproduction, raise resources for community goods, provide welfare, and resolve disputes. Indeed, in much of the world, the vast majority of individuals take civil and criminal cases before customary venues or nowhere at all, and public confidence is often higher in such venues than in their state counterparts (Gutmann and Voigt, 2020;Logan, 2013). Some striking statistics: rural Liberians took only about 4 per cent of cases involving economic disputes and 8 per cent of those involving violent crimes to the state courts, compared to 36 per cent and 40 per cent, respectively, to customary courts (Sandefur and Siddiqi, 2013, p. 42); 15 Indonesians were equally likely to take cases to customary or state courts, but they have much higher confidence in the customary courts (Harper, 2011); and increasing numbers of Muslims in Germany opt to register marriage, divorce, and solve disputes in sharia' courts unrecognized by the state (Jaraba, 2020).…”

Late colonial antecedents of modern democracy

“…A growing body of related literature has since focused extensively on the factors that determine successful (or unsuccessful) processes of institutional transfers during the colonial era, attempting to uncover how exactly history matters for post-colonial institutional outcomes. This body of literature highlights a common set of factors that determine successful institutional transplants, such as the importance of individual leaders (Couyoumdjian, 2012; Couyoumdjian and Larroulet, 2018), historical institutional precedents (Berkowitz et al ., 2003; Boettke et al ., 2008; Pavlik and Young, 2020, 2021), the compatibility of formal and informal institutions (Berkowitz et al ., 2003; Boettke et al ., 2008; Gutmann and Voigt, 2020; Seidler, 2014, 2018), as well as the factor time, where recipients can experiment around and adjust the imported institutions to local practices (Seidler, 2018). Obviously, these factors are not mutually exclusive and successful institutional transplants to former colonies often present a combination of several elements.…”