The fourth conference of francophone ministers of justice has just been held in Paris. One of the two themes was “justice and development” and notably economic law and control in French-speaking states.
Discussion focused on the increase in new IT and financial crimes as well as on regional integration via organisations like OHADA, which I mentioned in my first text. I will discuss these subjects another time.
In this paper I would specifically like to advocate my belief that legal and judicial diversity is vital for development.
Justice is universal and the rule of law is an undisputable objective. However, there are a whole host of ways of implementing the law and establishing justice. Justice cannot be over-simplified, neither can it be assessed purely on the basis of quantitative criteria. An understanding of the historical background to the legal and judiciary systems and their various protagonists is necessary if we are to prevent it from becoming an obstacle to change.
Colonialism in both sub-Saharan Africa and Latin America abolished traditional modes of justice and imposed legal institutions and regulations that were far removed from the daily lives and needs of local populations. As a result, the latter took to bypassing the law and getting around the judicial system. After independence, they subverted the entire system. What has been stigmatised as clientelism and corruption is a direct consequence of this rejection and was initially just the manifestation of an essential personal or social link between the person asking for justice and the person doing the judging.
Nowadays, the influence of money and trade dealings on human relations has lead to an intolerable increase in corrupt practices. Administrative and judicial positions of power are misused to acquire undue wealth and build up back-scratching networks. This all takes place at the expense of the public interest, of equity and of a neutral judicial system. Corruption constitutes a major obstacle to development.
Some people believe that the diversity of the laws is the reason why this highly documented and readily denounced corruption is so difficult to eradicate. They advocate reorganising the judicial system. These people would like to see the advent of a predominant set of laws that would overrule others and feel that all systems must converge.
I beg to differ. No law is better than another, as long as it is able to regulate relations between people or communities, protect the weak and establish a degree of equity in the way the society functions. What is basically at fault is judicial governance.
Societies in developing countries function according to a combination of the major European laws that were imposed on them and traditional justice which follows its own logic. Incorporating this logic and its historical background is vital if we want to combat corruption and misuse of power effectively.
No legal system has proved better equipped than another to eradicate corruption and misuse of power. These crimes are gradually done away with by the body politic as a whole. Indeed, the State needs to act regularly to prevent the resurgence of these practices. It is in a perfect position to do this because it is familiar with the legal and judicial devices needed to do so and because it rightfully considers itself responsible for dealing with these issues.
Of course I do not underestimate the new crimes like terrorism, globally organised crime, money laundering and cybercrime, which weaken States and prevent them from functioning properly. Each country should adapt its legal system to account for the globalisation of exchanges, economies and population movements. Effective solutions will result from exchanging ideas between the various legal systems and the strengthening of these systems, not from standardisation which will merely benefit the richest and best educated of those that fiddle the system to their advantage.
Photo © OIF