For the majority of poor people living in developing countries, customary law provides
the most accessible justice system. Their disputes are dealt with in a plethora of local
dispute settlement institutions from family elders to the more formalized chief’s courts.
Ever since the colonial period, governments have been forced to recognize the pervasive
nature of customary justice systems and their importance for the people. This has led to
policy questions regarding recognition of customary law and institutions, possibilities to
supervise the application of substantive and procedural customary norms, and attempts
to modernize or prohibit certain customary practices. More recently, agents in the field of
legal development cooperation have increasingly begun to realize the pervasiveness of
customary justice systems and their importance to the poor. Combined with new insights
regarding the limited impact of reforms in the state justice sector on the majority of the
poor, this has led to a marked increase in access to justice and legal empowerment
programs that aim to build on the positive elements of customary justice systems for
their benefit.
A common problem that both governments and legal development agencies encounter is
the unwritten nature of customary law. Due to its oral nature, customary law is flexible
and thus offers a high level of discretion to dispute settlers. This character trait of
customary law is hailed for its ability to respond to rapidly changing social conditions and
to take into account the specific circumstances of a case and reach a settlement
acceptable to all parties. Notwithstanding these positive aspects, high levels of flexibility
may also result in uncertainty and create a susceptibility to elite capture. Since the
colonial period, a number of governments – often supported by national or international
researchers – have attempted to put parts of customary law into writing with a dual aim:
to end the uncertainty and discretion caused by its flexibility; and also, equally
important, to come to grips with the content and nature of customary law for their own
understanding. Such moves have drawn severe criticism from development theorists
stressing the dangers of codification.