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Abstract
Customary law is an alternative legal framework to statute or public law. In the past, the existence of customary law was viewed as problematic due to the uncertainty which accompanies legal pluralism. Increasingly, scholars are recognizing legal pluralism as simply a reality to be negotiated, rather than a problem. One frequently proposed solution to the difficulties posed by the existence of customary law is to write it down, or ascertain it, in order to provide for legal certainty. This article addresses this goal in three parts. The first part describes customary law and how it functions in its uncodified form in post-colonial settings, specifically in Sub-Saharan Africa and parts of Asia. While customary law thrived under colonization, it merely survived socialism where it was often explicitly undermined. The second part of the article details the reasons why scholars and public officials have often suggested writing customary law down as a solution, and situates these arguments within the contemporary debate on legal pluralism. In the third section, a specific case of written customary law, the Albanian Kanun of Lekë Dukagjini, is analyzed with a focus on its modern usage in a post-socialist context. The paper concludes noting that ascertainment does not bring legal certainty to customary law in the ways that are anticipated. Writing down an oral tradition or a practice may produce a document for reference, but this does not limit its use nor necessarily increases the predictability of its application. The article also emphasizes the role of customary law in defining group identity in post-socialist settings.
Acknowledgements
Interest in this topic arose when I received a Fulbright Senior Scholar award to study post-conflict property restitution in Kosovo. I am grateful to the Fulbright Foundation for their generosity and to my colleagues at the American University in Kosovo. Leah Anderson, Brian Howell and Rachel Vanderhill provided helpful comments on an early version of the manuscript. All flaws are my own.
Notes
1. Legally pluralistic societies are typically characterized by the presence of both customary and statute or public law. However, an additional layer of complexity can be added by religious law in places like Nigeria or Indonesia where sharia law, customary law and public law are all present and sometimes promote competing norms of behavior. This availability can lead to “forum shopping” in which people with a conflict will choose the law and dispute resolution mechanism that they feel best represent their interests (von Benda-Beckmann Citation1981).
2. So, for example, Namibia had an “ascertainment” process in which customary law was recorded, but not established as public law. It was then not a problem if the customary law contravened the Constitution as the written customary law was not a formalized part of the Namibian legal system.
3. In wrestling with its different usages, Ubink and Van Rooij (Citation2011) have come up with the following distinctions. “Codified customary law refers to legislation codifying the customary law of a certain jurisdiction. This provides legal certainty and accessibility to the customary law, while at the same time unifying, simplifying and crystallizing it, often in a formal language that is different from that used in the original community. Judicial customary law refers to the norms developed by judges when applying customary norms in courts and as laid down in national law reports. Here also, customary law is made more certain and accessible, but at the same time can be crystallized, unified and formalized. Textbook customary law refers to authoritative texts written by state administrators or anthropologists, often used by state courts or administrators when trying to ascertain appropriate customary norms. It offers a non-legal and more formalistic source on the appropriate customary law. Some of the drawbacks of textbook customary law are that they only exist for certain groups and therefore fail to provide as much legal certainty as nation-wide codifications, and that they freeze the norms of the groups discussed. Finally, living customary law refers to the norms that govern daily life in the community at the local level. There may be considerable differences between these different versions of customary law, especially between the living and written versions, because living customary norms are inherently dynamic”.
4. The blood feud also exists in the Pashtunwali, or Afghan tribal law, where honor and revenge are similarly critical to the customary code.
5. This section is also taken from the English translation by Fox.
6. The blood feud is a popular topic for Albanian books and movies, from the classic novel Broken April by Ismael Kadare to Josh Marston's 2011 film, The Forgiveness of Blood.
7. Section XXVIII of the Kanun reads, “A woman does not incur blood”. “"A woman transfers blood to her parents”. It is true that according to our Kanun, “Blood follows the finger” [i.e. the person who commits a murder incurs a blood feud], but this law does not include women, since “A woman does not incur blood”, even if she happens to kill someone. If a woman kills her husband or anyone else, her parents incur that blood. Her husband purchases a woman's labor and cohabitation, but not her life (Fox Citation1989).
8. In Kosovo in the 1990s there was an effort to stop blood feuding led by Professor Anton Çetta and supported by large public demonstrations. Çetta gathered a group of mediators to pacify or bring an end to the feuds. As a result of these efforts, there are now fewer blood feuds in Kosovo than in Northern Albania.
9. A point which Sally Engle Merry (2012) notes as characteristic of settings which have legal pluralism – each system having different conceptions of what is just.