09 Jun
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The Rule of Compromise versus Rule of Law: which is a Replicating Phenomenon in Non – Western societies? (A Specific Case Study)

Abstract

The aim of this paper is to examine the key issues with regard rule of law in a narrower sense with the view and in comparable of rule of compromise in non-western societies where the latter focuses in African nation. The issues of Awramba’s is peculiar to this paper. Asserting that this phenomenon is replicable, the paper underpins the various arguments highlighting the incorporation extent of the rule of law on indigenous traditions under the broader umbrella of rule of compromise. Further, the paper addresses the necessity of reconciliation and restoration of harmony even in African continent when its children breach the laws than adjudicate by outsider’s law. In doing so, a little show on the Awramba’s experience of rule of compromise and its footages in promoting development and  stability will be reflected.

Introduction

Recently, due to the new politico-legal order in Ethiopia, the federative arrangement emphasizes cultural and legal pluralism and accommodates diversity in a plural democratic federal setting. Relegating the history of Ethiopian legal system before 1930’s, along with the enactment of the criminal code of 1930 and the proclamation of Administrative Justice of 1942, the state courts were established (shack et al 1966:163). The law adopted a foreign system of justice and borrowed many elements from western legal system (Abera 1998). This prevents the new law from conducting a serious investigation of local customary laws and safeguards the traditional values and thereby attaches the profound sentiments of the peoples with the code (Allott et al 1969:32). As Rene (1963:193) noted in his article that Ethiopia tends to modify its structures completely to the way of life of the people and consequently the citizens didn’t expect the new code to be a work of consolidation, the methodological and clear statement of actual customary rules, they wish it to be a program envisaging a total transformation of a society and they demand that for the most part of it set out new rules appropriate for the society they wish to create.

 

The formation of the modern system relegated the role of the traditional institutions known for rule of compromise and system of restoration, reconciliation and rehabilitation of social harmony.  In this regard, much of value in the traditional system such as group rights and maintenance of social harmony and societal jurisculture were neglected. As John Beckstrom (1973) pointed out, in order for transplants to bring about the desired outcome, the economic and cultural gaps between the importing and exporting states should be the least.

 

However, under the Ethiopian case, for instance, the western transplantation of modern laws were automatic; without giving a “ Breathing Time’’ for  Ethiopians to think about their long lasting traditional system where rule of compromises prevailed. To a certain extent, some of the customary laws were incorporated in an implicit manner because of the diversity of local customs and lack of systemic survey.  Thus by focusing on the importing modern legal system, the historic codification process of most of the laws went astray. As Brietzke (1982) pointed out many centuries of legal history and social relations are not transformed into a tabula rasa by simply legislating custom out of existence. It is determinant to a country to have a social cohesion since Ethiopia is a multiethnic federal nation.  The legitimacy calamity of the modern and imported legal system was further expanded when the relevance of the codified laws has actually been displaced by indigenous norms and practices.

 

Even in the process of codification of the penal code, neither religious nor customary penalties were recognized while lately after the promulgation of 1991 FDRE constitution, the heterogeneity of the ethnics in one hand and the recognition of customs, norms etc under the constitution on the other hand, become challenging.  But at the terra firma, the reverse is factual. Almost 80-85% of the cases, either civil or criminal aspect, are adjudicated by the traditional jurisculure where rule of compromise is a widely used approach with in which rule of law is maintained.

 

Multi Ethno-nationalism and diversification; Applicability of laws

With a broader pluralism in legal, socio –cultural conditions, ethno- nationalism and other prominent diversification, the applicability of laws were long aged and diverse. Since from the modern history of Ethiopia (i.e 19th century and after), one can recognize diverse and plural constitutive layers of legal make ups within the plural nature of ethnicity.

 

Relegating the dichotomy of modern and traditional laws, still now, diverse customary laws, traditional state-sanctioned laws, Western imported laws, Islamic laws and recently capitalist oriented proclamations continues to coexist. Recently, especially in criminal matters, not only western laws are imported but also modern and recently growing concepts are inculcated in the modern criminal justice system of Ethiopia. Equally with the modern laws, the new system incorporates traditional justice practices and laws to be applicable in the system where the government thinks to insist on maintaining social harmony and tradition. The jurisculures focus on rule of compromise as opposed to rule of law to find the truth where the latter  concerns more on the breach of law and the possible sanctions; giving less thought about the societal heritage, restoration and reconciliation of the rule violator and the victims and the community.

 

Though, defining rule of law under the context of non western societies like people of Ethiopia is greasy, the term law is better defined in every society in several contexts. As summer (1979) observes law ‘‘lies in the cradle of political practice and is therefore subject to the pressure and imperative of politics.’’ Likewise, understanding of law is gradually changing due to change in the political commands of various regimes. For instance, law in the imperial regime was the laws incorporated in Fetha Negest where the Christian highlanders took it to their own palms. It had been used both as religious and secular law governing civil as well as criminal conduct. As Brietzke stipulated "these laws were a part of the baggage that followed in the wake of Menelik's Southern conquests and were applied there to a certain extent. Therefore, the laws at this imperial regime were the rules incorporated in the Fetha Negest and  its impact  on  indigenous   rules   were   similar   to   that   of   the   laws transplanted to other parts of the Third World under European colonialism but actual resolution of disputes by local customary laws persisted till now.

 

Even in African experience where colonial legal systems seem to dominate, the traditional laws with their compromise priority still survive. For instance, when considering the Arusha of Tanzania, as Carlston et al (1968) affirms ‘‘there is no process in western society closely comparable to the dispute settlement procedures utilized by the Arusha’’. The traditional African legal systems were based around the resolution of disputes in such a way that community cohesion was restored, while individual needs were met.  Justifiably, the applicability of rule of compromise is wide and has diverse nature even in African continent and is a ‘‘right way’’ than that of the western centric culture of rule of law.

 

Generally, the rule of law allegory mostly needs assimilation, cultural and traditional neutrality and sameness in ethnography and ethnocentrism. Rule of compromise is applicable in all societal heritages and accommodates domestication promoting multi-culturalism, diversification and societal ownership. Rule of law, in contrast, focuses on individual rights. In rule of compromise, each cultural community directed its affairs by a system of cohesion and equity than tending to the interest of an individual like rule of law.

 

Rule of Compromise; a truthful suit for indigenous traditions of the Rule of Law

In most of the African communities, basic rights and responsibilities are principally attached to a group, i.e a clan or tribe, rather than that of an individual with in a community. Individual in such kind of community basically plays a vital role but still is subordinate to the group. Vividly, members to the certain ethnic group, clan, tribe or etc are mostly beneficiaries of the collective rights and benefits.

 

In case when an individual breaks a law, it is not uncommon to see the shifting of the responsibility to the group he belongs and the offenders never stands alone to defend their case. Thus, the victim shifts his claim as a group claim and also the responsibility of the law breaking individual transfers the responsibility to the group as a law breaking group. In all such instances, rule of law only addresses the interest of individual disputants by weighting the cases with reasonable defenses while the indigenous tradition of rule of law, i.e rule of compromise, goes beyond this to secure the interest of the disputing groups by searching the truth.

 

In a real sense, rule of law only follows the directions stipulated under laws than thinking about social harmony. But, in rule of compromise or in indigenous traditions of rule of law, the law is not anxious in keeping individual interest rather it tends to protect the disputant group to avoid any vengeance and promotes social reconciliation and restoration.

 

Akin to the African’s experience, in Awrambian experience, the issue of benefits and doubts are collective rights and responsibilities where communal thinking has prevalence than individualism. They have quite unique philosophy of life and every aspect has sense of communalism. As Abebaw Yirga (2007) stipulates, respect for individual rights along with group interests, mutual peace and support, tolerance of differences, gender equality and human dignity as a whole seem to constitute the core values of Awramban community.

 

In this broader understanding among Awramban community, indigenous traditions of rule of law persist. The community has its own multipurpose communal statute which enlists various authorities, structural makeups, responsibilities, dispute settlement mechanism etc. Under their experience, civil and criminal cases are traditionally handled by Grievance handling and mediation committee where their primary motive is to avoid malicious intent among the disputants. Unlike the modern law which propagates the extreme necessity of rule of law to give solution for cases, the community has astonishing and special procedures in finding out the truth and giving an everlasting solution for the cases. In their indigenous tradition, before bringing the cases to a state machinery, they organize a forum called `` inter-personal communication`. They identify potential options for possible settlements and the disputants, either in their individual or group capacity, participate equally to find a solution and up keep the societal heritage, harmony and to promote reconciliation.

 

Generally, in African context, there are various non western laws which are traditionally indigenous in nature and applied to the people even in the present instances. For instance, the case Arusha of Tanzania and its applicable non-western laws can be the model trace of indigenous traditions of rule of law. Likewise, we, Ethiopians, have various experiences on indigenous tradition of rule of law in which the rule of compromise is widely applied. Therefore, possibly and vividly, one can argue that indigenous traditions of rule of law, glamorize the life of non western societies to be proud of their jurisculture, communalism, social harmony and societal reconciliation.

 

The Necessity of Rule of Compromise for Africans; Promoting Development and facilitating Stability

 

As a master candidate, what I intend to do is just to bring up new ideas that possibly magnetize the mind of the reader to think on a specific issue. Hereby, I am not studying on   re-myth of indigenous traditions of rule of law which principally follows the rule of compromise nor do I compare rule of compromise and rule of law just to promote development and stability. Here, I am showing how much the indigenous system is more intended in promoting development and facilitating stability than that of western concept of rule of law specifically to African comminutes.

 

As Connolly (2005) advocates, for Africans, their traditional conception of rule of law demands voluntary participation,  reliance on social pressure to ensure attendance and participation, base in restorative justice, decisions based in compromise rather than rule of law and an extensive participation of disputants and community in the process.

 

So far African life is based on local social networks, the use of rule of compromise has a paramount importance and their traditional understanding and conception of rule of law should be encouraged. Since their adjudication lay basically on the notion of societal reconciliation and the restoration of harmony, prudently, it can bring stability among the disputants and the community as a whole. Further, through creating conducive environment for reconciliation and taking of a victorious responsibility for a disputing individual as a group, in turn, promotes development by avoiding conflicts and conflicting interests.

 

However, the modern philosophy of rule of law might fail to bring development and facilitate stability among nations with a vast social network. As Nader and Yngvesson (1970) stipulate the functions of law, they noted that law doesn’t function solely to control but it may protect private and public interests…, it may integrate and disintegrate etc. Evenly, the contemporary conception of rule of law mostly advocates, sees and maintains the interest of a certain group when the claim is reasonably genuine but it, somewhat, lags to maintain societal stability since it prioritizes the notion of individual interest. Unless the demand of the group is maintained in a reasonable way, it is difficult to create stability among the disputant group which in the long run had detrimental effect on development.

 

Generally, for Africa and its Children’s, the re-myth of its indigenous traditions is vital and is potentially demanding to promote stability among its inhabitants and in turn to achieve development. Inevitably, rule of law also purports stability and development by avoiding conflicts.

 

Conclusion and Recommendation

Without relegating the importance of rule of law in propagating development and facilitating stability, indigenous traditions, which basically enjoyed favorable reception by a wide audience before modern and western laws take the lead, have paramount importance for peoples like African. As a rule of compromise is a technical instrument that can be used to serve various possible ends among the communities, it has to be potentially replicated in a ways consistent with one’s traditions, norms, juriscluture and diversification either in its technocratic or demographic structure.

 

As indigenous tradition of rule of law bases a concept of compromise to restore social relationship and reconcile disputants, it has to be protected and its legacy has to be persisting even in the future. The rule of compromise as an indigenous tradition is still pervasive in today’s society and working parallel with modern systems put in place by colonial powers.

 

Therefore, arguably, it can be said that indigenous traditions are based on the promotion of social restoration, cohesion and reconciliation and can fill the gap that the modern laws and systems leave. But whatever the name is given, it is asserting that rule of law was existed even before the modern laws take the leading position. Even today, cases are resolved without the establishment of formal and modern adjudicating institution. Therefore, rule of compromise as indigenously accepted perception of rule of law is can be regarded as replicating phenomena in non-western societies like the people of African and specifically to Ethiopians since it respects diversifications.

Though the above ideas are enlisted to show the importance and pervasive nature of indigenous traditions of rule of law which bases on compromise, certain ideas can be suggested as a possible insight to promote them. Such as:

+ The government has to take initiation to use traditional customary rules equally with other modern laws when protecting social cohesion and harmony is indispensible.

+ The state machineries, also, has to recognize indigenous traditions along with the diversification and should draw boundaries from formal legal pluralism.

 

+ The government has to enact codes of conflict of laws with a view to addressing the complex problem of choice of law, and   tailored to   meet challenges arising from legal diversity, especially forum shopping.

Wondu Mamo

The blogger has LLM on Security Sector Management from University of Cranfield, UK. He graduated from Haramaya University with LLB in 2007. Currently, the blogger is working in Ethiopian Ministry of Justice.