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The publicity "defect" of customary law
 
Author:Gauri, Varun; Collection Title:Policy Research working paper ; no. WPS 5349
Country:World; Date Stored:2010/06/24
Document Date:2010/06/01Document Type:Policy Research Working Paper
SubTopics:Public Sector Corruption & Anticorruption Measures; Children and Youth; Parliamentary Government; Legal Products; Gender and LawLanguage:English
Major Sector:Education; Public Administration, Law, and Justice; Health and other social servicesRel. Proj ID:1W-Human Rights And Services For Poor People -- -- P092076;
Region:The World RegionReport Number:WPS5349
Sub Sectors:Health; Primary education; Law and justiceTF No/Name:TF053666-BNPP-GOVERNANCE:; TF054260-TFESSD
Volume No:1 of 1  

Summary: This paper examines the extent to which dispute resolvers in customary law systems provide widely understandable justifications for their decisions. The paper first examines the liberal-democratic reasons for the importance of publicity, understood to be wide accessibility of legal justification, by reviewing the uses of publicity in Habermas’ and Rawls’ accounts of the rule of law. Taking examples from Sierra Leone, the paper then argues that customary law systems would benefit from making the reasons for local dispute resolution practices, such as "begging" from elders, witchcraft, and openness of hearings, more widely accessible. The paper concludes that although legal pluralism is usually taken to be an analytical concept, it may have a normative thrust as well, and that publicity standards would also apply to formal courts in developing countries, which are also typically "defective" along this dimension.

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