The Custom in the Shadow of the Formal Law: An Economic Analysis

1
The Custom in the Shadow of the Formal Law An
Economic Analysis

• Gani Aldashev, Imane Chaara, Jean-Philippe
  Platteau, and Zaki Wahhaj
• Centre for Research in Development Economics
  (CRED)
• University of Namur

2
Outline of the presentation

• Introduction/motivations
• Description of the model
• Results
• A dynamic framework
• Illustrations

3
Introduction

• Legal Pluralism several law systems coexist

4
Introduction

• Legal Pluralism several law systems coexist
• ? legal system or formal law (formal
  institutions)

5
Introduction

• Legal Pluralism several law systems coexist
• ? legal system or formal law (formal
  institutions)
• ? customary principles or informal rules
  (informal institutions)

6
Introduction

• Legal Pluralism several law systems coexist
• ? legal system or formal law (formal
  institutions)
• ? customary principles or informal rules
  (informal institutions)

The formal law is intended for either replacing
1 or complementing 2 the informal rule.
7
Introduction

• Legal Pluralism several law systems coexist
• ? legal system or formal law (formal
  institutions)
• ? customary principles or informal rules
  (informal institutions)

The formal law is intended for either replacing
1 or complementing 2 the informal rule. 1
legal pluralism is conceived of as a temporary
outcome
8
Introduction

• Legal Pluralism several law systems coexist
• ? legal system or formal law (formal
  institutions)
• ? customary principles or informal rules
  (informal institutions)

The formal law is intended for either replacing
1 or complementing 2 the informal rule. 1
legal pluralism is conceived of as a temporary
outcome 2 legal pluralism is seen as a
permanent situation (different laws deal with
different matters)
9
Introduction

• In the case in which legal pluralism is seen as a
  temporary outcome, substituting the formal for
  the informal law may obey two distinct
  rationales.

10
Introduction

• In the case in which legal pluralism is seen as a
  temporary outcome, substituting the formal for
  the informal law may obey two distinct
  rationales.

• formal law uniformizes, codifies and simplifies
  the customary rules and practices
• ? informal rules appear to be  the foundations
  on which formal rules are built  (Knight 1992,
  North 1990)

11
Introduction

• (2) formal law aims at bringing a change that
  the custom inhibits
• ? formal and informal laws are seen as
  conflicting with each other

12
Introduction

• Two different problems can arise when legal
  pluralism is intended to be temporary

13
Introduction

• Two different problems can arise when legal
  pluralism is intended to be temporary
• (1) There may be an uncertainty about whether
  the formal law or the custom actually applies.
• ? Aoki 2001, Greif 2006
• ? Knight 1992
• ? Basu 2000

14
Introduction

• (2) There may be manipulation of the state of
  legal
• pluralism by the privileged group in societies
  strongly
• differentieted in terms of power and social
  status.
• Example laws providing for formal land rights or
  titles (Doornbos 1975, Glazier 1985, Barrows
  and Roth 1989, Berry 1993, Platteau 2000,
  Jacoby and Minten)

15
Introduction

• Conventional view in literature
• Except in cases where the statutory law is
  grounded in customary rules which it attends to
  formalize and simplify, legal pluralism tends to
  produce neutral or negative effects.

16
Introduction

• In our research project
• a more general approach of legal pluralism

17
Introduction

• In our research project
• a more general approach of legal pluralism
• in reality, customary rules are continuously
  evolving.
• the transformation of customs may partly occur as
  a result of the existence of statutory laws which
  have the effect of conferring a stronger
  bargaining position on some particular section(s)
  of the population.

18
Introduction

• In our research project
• a more general approach of legal pluralism
• in reality, customary rules are continuously
  evolving.
• the transformation of customs may partly occur as
  a result of the existence of statutory laws which
  have the effect of conferring a stronger
  bargaining position on some particular section(s)
  of the population.
• ?  local landholding systems are not the
  expression of an unchanging traditional law,
  but the fruit of a process of social change,
  which incorporates the effect of national
  legislation  (Lavigne Delville 2000)

19
Introduction

• Punchline of the paper
• Even if the formal law is not resorted to in an
  explicit manner the simple fact that it exists
  and that people whose interests concur in its
  prescriptions can threaten to use it, might
  create a situation in which its objectives are
  partly met.

20
Introduction

• Punchline of the paper
• Even if the formal law is not resorted to in an
  explicit manner, the simple fact that it exists
  and that people whose interests concur in its
  prescriptions can threaten to use it, might
  create a situation in which its objectives are
  partly met.

In this case - we may observe a permanent
coexistence of the two types of law even when the
intent of the legislator is to substitute the
formal law for the custom.
21
Introduction

• Punchline of the paper
• Even if the formal law is not resorted to in an
  explicit manner, the simple fact that it exists
  and that people whose interests concur in its
  prescriptions can threaten to use it, might
  create a situation in which its objectives are
  partly met.

In this case - we may observe a permanent
coexistence of the two types of law even when the
intent of the legislator is to substitute the
formal law for the custom. - legal pluralism may
obtain as a self-perpetuating equilibrium outcome
of strategic interactions between arbiters and
claimants.
22
Introduction

• Our approach differs from the literature on the
  economic analysis of law in three respects
• the study of customary judges behavior
• the study of the mechanism through which the
  customary law evolves as the formal law gets
  introduced or changed
• the role of inequality is adressed

23
Introduction

• Our approach differs from the literature on the
  economic analysis of law in three respects
• the study of customary judges behavior
• the study of the mechanism through which the
  customary law evolves as the formal law gets
  introduced or changed
• the role of inequality is adressed
• BUT we remain in the tradition of the economic
  analysis of law by
• modelling the customary judge as a rational
  agent maximizing his uility
• assuming that this utility arises from prestige
  motives and from the desire to write a decision
  that is close to the customary judge's
  preferences

24
Introduction

• Alternative dispute resolution (ADR)
• use of arbitration or mediation
• The reality of developing countries severely
  limits the applicability of the existing analysis
  of ADR
• developped and developing countries differ in
  terms of legal integration
• competition mechanism cannot be easily
  translated into developing countries' setting

25
Description of the model

• 3 agents R, P and M

26
Description of the model

• 3 agents R, P and M
• Possible verdicts ? 0,1
• 0 being the most favourable verdict for R
• 1 being the most favourable verdict for P

27
Description of the model

• 3 agents R, P and M
• Possible verdicts ? 0,1
• 0 being the most favourable verdict for R
• 1 being the most favourable verdict for P
• The mediator M he has a preferred verdict I
  the communitys dominant custom at the present
  time.

28
Description of the model

• 3 agents R, P and M
• Possible verdicts ? 0,1
• 0 being the most favourable verdict for R
• 1 being the most favourable verdict for P
• The mediator M he has a preferred verdict I
  the communitys dominant custom at the present
  time.
• The mediator chooses a verdict vM ? 0,1.
  Therefore, the interval is his strategy set.

29
Description of the model

• The formal judge

30
Description of the model

• The formal judge
• Reasons of the unpredictability of the formal
  judges verdict vF
• asymetries of information
• existence of several bodies of law available to
  the formal judge
• the subjectivity of the judge

31
Description of the model

• The formal judge
• Reasons of the unpredictability of the formal
  judges verdict vF
• asymetries of information
• existence of several bodies of law available to
  the formal judge
• the subjectivity of the judge
• cR and cP capture the administrative cost of
  going to a formal court.

32
Description of the model

• Once the dispute is resolved, the players
  participate in a social exchange game

33
Description of the model

• Once the dispute is resolved, the players
  participate in a social exchange game
• the agent who appeals to the formal law is
  excluded

34
Description of the model

• Once the dispute is resolved, the players
  participate in a social exchange game
• the agent who appeals to the formal law is
  excluded
• all non-excluded agents participate in the
  production of a public good

35
Description of the model

• Once the dispute is resolved, the players
  participate in a social exchange game
• the agent who appeals to the formal law is
  excluded
• all non-excluded agents participate in the
  production of a public good
• Q(Z) is the benefit of the public good (Z A, AR
  , AP)

36
Description of the model

• Once the dispute is resolved, the players
  participate in a social exchange game
• the agent who appeals to the formal law is
  excluded
• all non-excluded agents participate in the
  production of a public good
• Q(Z) is the benefit of the public good (Z A, AR
  , AP)
• Cost-sharing rule each non excluded agent K
  contributes CK(Z) to the public good (K R, P or
  M)

37
Description of the model

• Once the dispute is resolved, the players
  participate in a social exchange game
• the agent who appeals to the formal law is
  excluded
• all non-excluded agents participate in the
  production of a public good
• Q(Z) is the benefit of the public good (Z A, AR
  , AP)
• Cost-sharing rule each non excluded agent K
  contributes CK(Z) to the public good (K R, P or
  M)
• We assume Q(Z) CK(Z) gt 0, for any Z and K.

38
Description of the model

• Ms utility is
• Where X is the prestige in utility terms that the
  mediator acquires from having his verdict
  unchallenged

39
Description of the model

• Rs utility is

40
Description of the model

• Ps utility is

41
Timing of the game

• One-shot sequential game
• 3 players the mediator, the rich agent, the
  poor agent

42
Timing of the game

• One-shot sequential game
• 3 players the mediator, the rich agent, the
  poor agent
• TIMING
• The institutions of the formal court are set.

43
Timing of the game

• One-shot sequential game
• 3 players the mediator, the rich agent, the
  poor agent
• TIMING
• The institutions of the formal court are set.
• M chooses verdict vM

44
Timing of the game

• One-shot sequential game
• 3 players the mediator, the rich agent, the
  poor agent
• TIMING
• The institutions of the formal court are set.
• M chooses verdict vM
• P decides whether to appeal to the formal court
  (F) if she chooses F, the community excludes
  her, the social game without P is played, and the
  payoffs of all parties are determined.

45
Timing of the game

• One-shot sequential game
• 3 players the mediator, the rich agent, the
  poor agent
• TIMING
• The institutions of the formal court are set.
• M chooses verdict vM
• P decides whether to appeal to the formal court
  (F) if she chooses F, the community excludes
  her, the social game without P is played, and the
  payoffs of all parties are determined.
• Otherwise, R decides whether to bring the case to
  the formal court (F) if she chooses F, the
  community excludes her, the social game without R
  is played, and the payoffs of all parties are
  determined.

46
Timing of the game

• One-shot sequential game
• 3 players the mediator, the rich agent, the
  poor agent
• TIMING
• The institutions of the formal court are set.
• M chooses verdict vM
• P decides whether to appeal to the formal court
  (F) if she chooses F, the community excludes
  her, the social game without P is played, and the
  payoffs of all parties are determined.
• Otherwise, R decides whether to bring the case to
  the formal court (F) if she chooses F, the
  community excludes her, the social game without R
  is played, and the payoffs of all parties are
  determined.
• Otherwise, both parties accept the verdict vM,
  the social game without exclusion is played and
  the payoffs of all parties are determined.

47
Equilibrium

• We solve by backward induction

48
Equilibrium

• We solve by backward induction

0
49
Equilibrium

• We solve by backward induction

50
Equilibrium

• We solve by backward induction
• The case will go unappealed iff vM ? (I , I)

51
Equilibrium

• We solve by backward induction
• The case will go unappealed iff vM ? (I , I)

52
Equilibrium

• We solve by backward induction
• The case will go unappealed iff vM ? (I , I)

Where R is indifferent
Where P is indifferent
53
Equilibrium

• We solve by backward induction
• The case will go unappealed iff vM ? (I , I)

54
Equilibrium

• We solve by backward induction
• The case will go unappealed iff vM ? (I , I)

55
Equilibrium

• (a) I lt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If lt I, M lets the case go to the formal
  court

56
Equilibrium

• (a) I lt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If lt I, M lets the case go to the formal
  court

57
Equilibrium

• (a) I lt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If lt I, M lets the case go to the formal
  court

? equilibrium vF
58
Equilibrium

• (a) I lt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If gt I, M chooses I and thus keeps the case
  in.

59
Equilibrium

• (a) I lt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If gt I, M chooses I and thus keeps the case
  in.

? equilibrium I
60
Equilibrium

• (b) I gt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given bythe following equation
• If I lt v , M lets the case go to the formal
  court.

I
I
0
1
I
61
Equilibrium

• (b) I gt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given bythe following equation
• If I lt v , M lets the case go to the formal
  court.

62
Equilibrium

• (b) I gt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given bythe following equation
• If I lt v , M lets the case go to the formal
  court.

63
Equilibrium

• (b) I gt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If I gt v , M chooses I and thus keeps the case
  in.

v
64
Equilibrium

• (b) I gt I
• A critical verdict value at which the judges
  payoff from letting go equals that of keeping the
  case  in  is given by the following equation
• If I gt v , M chooses I and thus keeps the case
  in.

65
Equilibrium

• The equilibrium is

66
Equilibrium
67
Comparative statics

• Proposition 1
• An increase in f, the mean verdict of the formal
  judge, raises both I and I, the respective
  thresholds at which the poor agent and the
  rich agent are indifferent between an informal
  resolution of the conflict and an appeal to the
  formal court.

68
Comparative statics

• Proposition 1
• An increase in f, the mean verdict of the formal
  judge, raises both I and I, the respective
  thresholds at which the poor agent and the
  rich agent are indifferent between an informal
  resolution of the conflict and an appeal to the
  formal court.

69
Comparative statics

• Proposition 1
• An increase in f, the mean verdict of the formal
  judge, raises both I and I, the respective
  thresholds at which the poor agent and the
  rich agent are indifferent between an informal
  resolution of the conflict and an appeal to the
  formal court.
• An increase in f, which corresponds to a
  decrease in the variance of the formal verdict,
  raises I and decreases I.

70
Comparative statics

• Proposition 1
• An increase in f, the mean verdict of the formal
  judge, raises both I and I, the respective
  thresholds at which the poor agent and the
  rich agent are indifferent between an informal
  resolution of the conflict and an appeal to the
  formal court.
• An increase in f, which corresponds to a
  decrease in the variance of the formal verdict,
  raises I and decreases I.

71
Comparative statics

• Proposition 1
• (ii) An increase in cP, the cost of access to the
  formal court for the poor agent, decreases his
  threshold verdict I. Similarly, an increase in
  cR, the cost of access to the formal court for
  the rich agent, increases his threshold verdict
  I.

72
Comparative statics

• Proposition 1
• (ii) An increase in cP, the cost of access to the
  formal court for the poor agent, decreases his
  threshold verdict I. Similarly, an increase in
  cR, the cost of access to the formal court for
  the rich agent, increases his threshold verdict
  I.

73
Comparative statics

• Proposition 1
• (ii) An increase in cP, the cost of access to the
  formal court for the poor agent, decreases his
  threshold verdict I. Similarly, an increase in
  cR, the cost of access to the formal court for
  the rich agent, increases his threshold verdict
  I.

74
Comparative statics

• Proposition 1
• (iii) An increase in the net benefit from the
  social game, expands the interval (I , I) in
  which both parties are satisfied with the verdict
  of the mediator.

75
Comparative statics

• Proposition 1
• (iii) An increase in the net benefit from the
  social game, expands the interval (I , I) in
  which both parties are satisfied with the verdict
  of the mediator.

I
I
76
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

1
0
I
77
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

1
0
I
78
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

1
0
I
I
I
79
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

1
0
I
I
I
80
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

1
0
I
I
I
81
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

82
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

83
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

1
84
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

85
Comparative statics

• Proposition 2
• An increase in X, the prestige associated with
  mediating a case, raises , the upper
  threshold above which the mediator lets the case
  go to the formal court and lowers , the
  corresponding lower threshold.

86
Comparative statics

• Proposition 2
• (ii) An increase in the net gain to the mediator
  from the participation of the rich agent in the
  social game lowers Correspondingly, an
  increase in the net gain to the mediator from the
  participation of the poor agent in the social
  game, increases .

87
Comparative statics

• Proposition 2
• (ii) An increase in the net gain to the mediator
  from the participation of the rich agent in the
  social game lowers Correspondingly, an
  increase in the net gain to the mediator from the
  participation of the poor agent in the social
  game, increases .

88
Comparative statics

• Proposition 2
• (ii) An increase in the net gain to the mediator
  from the participation of the rich agent in the
  social game lowers Correspondingly, an
  increase in the net gain to the mediator from the
  participation of the poor agent in the social
  game, increases .

v
0
I
1
89
Comparative statics

• Proposition 2
• (ii) An increase in the net gain to the mediator
  from the participation of the rich agent in the
  social game lowers Correspondingly, an
  increase in the net gain to the mediator from the
  participation of the poor agent in the social
  game, increases .

v
0
I
1
90
Dynamic framework

• Community size matters
• Y (n) increasing and concave
• X (n) increasing and concave

91
Dynamic framework

• Community size matters
• Y (n) increasing and concave
• X (n) increasing and concave
• The community consists of N individuals either
  rich or poor.

92
Dynamic framework

• Community size matters
• Y (n) increasing and concave
• X (n) increasing and concave
• The community consists of N individuals either
  rich or poor.
• The population is heterogenous. The agents differ
  in terms of their outside option.
• F(?) is the fraction of the population whith a
  per period outside option below ?.

93
Dynamic framework

• Community size matters
• Y (n) increasing and concave
• X (n) increasing and concave
• The community consists of N individuals either
  rich or poor.
• The population is heterogenous. The agents differ
  in terms of their outside option.
• F(?) is the fraction of the population whith a
  per period outside option below ?.
• In any period, a fraction d of the population is
  engaged in disputes.

94
Dynamic framework

• Community size matters
• Y (n) increasing and concave
• X (n) increasing and concave
• The community consists of N individuals either
  rich or poor.
• The population is heterogenous. The agents differ
  in terms of their outside option.
• F(?) is the fraction of the population whith a
  per period outside option below ?.
• In any period, a fraction d of the population is
  engaged in disputes.
• The informal judge chooses a unique within
  any period t.

95
Dynamic framework

• Given , a threshold value for which the
  poor agent is indifferent between choosing the
  informal and the formal court is given by

96
Dynamic framework

• Let

H(n,v)
n, community size
97
Dynamic framework the steady state

• And

98
Dynamic framework the steady state

• And
• If , a process of exclusion will
  make the population shrink until the size .

99
Dynamic framework the steady state

• And
• If , a process of exclusion will
  make the population shrink until the size .
• If , the exclusion process will
  never begin.

100
Dynamic framework the steady state

• A change in any of the parameters
  affects for each n and v and gives rise
  to a new steady state.

101
Dynamic framework the steady state

• A change in any of the parameters
  affects for each n and v and gives rise
  to a new steady state.

102
Dynamic framework the steady state

• A change in any of the parameters
  affects for each n and v and gives rise
  to a new steady state.

103
Dynamic framework

• The choice of is endogenous to the strategy
  of the informal judge. The custom that maximises
  the steady-state level of utility for the
  informal judge is given by

104
Dynamic framework comparative statics

• Proposition 4

105
Dynamic framework

• If it is too costly for the informal judge to
  adapt the custom, he will choose ,
  which will lead to the exodus of all the poor
  people of the community. In this case, we have

106
Dynamic framework the effect of inequality

• The optimal choice of law for the informal judge
  depends on the distribution of outside options in
  the poor section of the community.
• Lets take 2 different distributions
  

107
Dynamic framework the effect of inequality

• The two effects of an increase in inequality are
  described in the following graphs

108
Dynamic framework the effect of inequality

• Proposition 5
• The impact of increasing inequality on the custom
  can be decomposed into two effects.
• First, the pivoting of the distribution of
  outside options tends to make the custom less
  favorable to the poor.
• Second, the shift in the distribution makes the
  custom more or less pro-poor, depending on
  whether the outside option of the individual who
  is indifferent between the two legal systems in
  the initial steady-state gains or loses in the
  redistribution.

109
Welfare analysis

• The aggregate social welfare of the poor
  individuals in the population is given by

110
Welfare analysis

• The aggregate social welfare of the poor
  individuals in the population is given by
• The marginal effect on social welfare of a
  pro-poor legal reform is

111
Welfare analysis

• The aggregate social welfare of the poor
  individuals in the population is given by
• The marginal effect on social welfare of a
  pro-poor legal reform is
• ? A legal reform that makes the formal law more
  favourable to the poor has three distinct effects
  on the welfare of the poor.

112
Welfare analysis

• Under what conditions a moderate pro-poor reform
  can be superior to a radical reform?
• Proposition 6
• If the elasticity of the marginal benefit of the
  scial game with respect to the size of the
  community is below 1 and utility is linear in the
  outcome of a dispute, then either abiding by the
  custom or carrying out a radical reform dominates
  a moderate reform in the formal law in terms of
  the social welfare of the poor.

113
Welfare analysis

• If the net benefit from the social exchange game
  is sufficiently sensitive to the size of the
  community and if the utility function is
  sufficiently concave, the social welfare function
  is concave, implying that the implementation of a
  moderate law is the optimal reform.

114
Illustrations

• The case of womens inheritance rights in the
  Senegal river valley

115
Illustrations

• The case of womens inheritance rights in the
  Senegal river valley
• Muslim population
• Quranic prescription vs. customary principle

116
Illustrations

• The case of womens inheritance rights in the
  Senegal river valley
• Muslim population
• Quranic prescription vs. customary principle
• Important benefits from the social game for women

117
Illustrations

• The case of womens inheritance rights in the
  Senegal river valley
• Muslim population
• Quranic prescription vs. customary principle
• Important benefits from the social game for women
• Over the last decade, the cost of being excluded
  from the social game has fallen

118
Illustrations

• The case of womens inheritance rights in the
  Senegal river valley
• Muslim population
• Quranic prescription vs. customary principle
• Important benefits from the social game for women
• Over the last decade, the cost of being excluded
  from the social game has fallen
• Educational and employment opportunities enable
  the more progressively-minded women to reveal
  preferences and to manifest opposition against
  customary practices.

119
Illustrations

• The case of womens inheritance rights in the
• Senegal river valley
• Muslim population
• Quranic prescription vs. customary principle
• Important benefits from the social game for women
• Over the last decade, the cost of being excluded
  from the social game has fallen
• Educational and employment opportunities enable
• the more progressively-minded women to reveal
  preferences and to manifest opposition against
  customary practices.
• Recently, we observe an evolving practice of
  transfers to compensate women from their
  exclusion from inheritance.

120

• In urban areas, when womens organisations are
  active, the fall in cost of access to court makes
  a recourse to it more attractive, potentially so
  much more attractive that the custom does not
  evolve at all.

121

• In urban areas, when womens organisations are
  active, the fall in cost of access to court makes
  a recourse to it more attractive, potentially so
  much more attractive that the custom does not
  evolve at all.
• In India (Jharkand), the Santal Pargana Tenancy
  Act (1949) recognises womens inheritance rights
  through marriage to a resident son-in-law but
  only if there is no male heir in the womans
  family. It had an effect because this law does
  not represent too radical a departure from
  custom.

122

• In urban areas, when womens organisations are
  active, the fall in cost of access to court makes
  a recourse to it more attractive, potentially so
  much more attractive that the custom does not
  evolve at all.
• In India (Jharkand), the Santal Pargana Tenancy
  Act (1949) recognises womens inheritance rights
  through marriage to a resident son-in-law but
  only if there is no male heir in the womans
  family. It had an effect because this law does
  not represent too radical a departure from
  custom.
• Same conclusion in the case of Law N 98-750
  (1998) in the Côte dIvoire, which grants
  long-term leasehold rights to immigrant farmers.

123

• When land becomes quite scarce, the custom
  evolves regressively (the preferred judgement of
  customary authority, I, moves closer to zero),
  with the result that women have more incentive to
  appeal to the modern court.

124
Conclusion

• There may little gain from a strong state bent on
  imposing radical reforms even in the name of
  equity.
• It may be more effective for the state to exert
  its influence in an indirect manner that does not
  overlook the custom.