The complex issue of integrating matriarchal societies into modern legal framework
To continue in the direction given by Marc, I would like to illustrate how modern legal system may also influence traditional justice. As Marc pointed, traditional systems are dynamic and also show that traditional justice (or societies in general) is not disconnected with modern legal system.
For this purpose, I will use the example of the Kongo society in Bas Congo Province of DRC. This province has the characteristic to be populated by an ethnic group who is organised in clans, almost the only one in DRC. But, what is really interesting is that the clan structure was matriarchal. What does that mean concretely?
In the past, clan chief were men but the clan identity is transmitted through women and not men. It is not who your father is which is important but who your mother is that will determine to which clan you belong to.
Why is that so important? Because in the traditional system, it defines how heritage (land and properties) was divided and transmitted.
Nowadays, modern laws are patriarchal based. In DRC legal system is based on the Belgian legal system which is coming from the Roman legal system. In terms of heritage this means it is a transmission from father to son while in Kongo system it was a mother to son transmission.
Also, Bas Congo province welcomed refugees from Angola during the Angola civil war. The Kongo ethnic group is spread all over North Angola, Bas Congo, Congo Brazzaville up to Cameron. (Mike may give some historical details on this). So when the refugees came from Angola to Bas Congo (DRC), they easily integrated into the population as they were all related through extended family and clan.
An in depth study conducted in 2008 by an anthropologist among Bas Congo refugees demonstrated that in fact, situation was not that clear and traditional justice and society mechanisms were no more respected.
First, due to the difference of treatment and access to several services by international community, a division was made between Angolan Kongo and Congolese Kongo by local population. I, personally, did witness such mechanism of ethnic group creation in Chad between Chadian Massalite and Darfury Massalite for the exact same reason. This comes in the line of the researches and work of Anthropologist Elikia M’Bokolo who worked on the complex mechanisms of ethnic groups and tribe creation. (And does reinforce Marc points on the fact that traditional societies are dynamic evolving social objects, sometimes very quickly.)
Secondly, the survey (conducted only in DRC, situation might be different in Angola) demonstrated that if a Congolese woman marries an Angolan man then their child would be considered as Congolese or belonging to the women clan but as an Angolan. And when an Angolan woman marries a Congolese their child would be considered as a Congolese. We have here a first disruption of the traditional justice as according to traditional justice, the child belongs to the community of the mother. But when the child reaches the adult age then this might be reinterpreted by the community. Basically what is happening is that the Congolese man marrying an Angolan woman will leave her the child to be raised by her. As per traditional society rule, the mother will have the charge of educating and raising the child. But when the adult age comes and the child becomes “economically productive” (as work force for the male and through bride for the female), the Congolese community will claim the child/young adult as Congolese as per Congolese modern law.
In the case of a Congolese woman marrying and Angolan man, the child will be raised and educated by the mother, as per traditional rules. But the Congolese family will not consider that child as Congolese when he or she becomes a young adult. The situation would be even worst when it comes to young women. Because they would be denied the Congolese status but the Congolese family will still request to receive the bride as per traditional rules. Traditional chiefs will even support the Congolese families in both cases, playing with modern and traditional justice and legislation depending on each case.
Here, we have neither a society rule by law neither subject of rule of law but a traditional society assimilating modern law to transform a traditional matriarchal system into a de facto patriarchal system.
If that was limited to nationality, the issue would not be that important. But, it also affects land and property heritage. Matriarchal system was set in place to protect women and particularly widows to be spoiled from their property. Nowadays, Kongo women are “legally” more vulnerable as modern law is in contradiction to traditional legal system. Then, as they have a symbolic power position in the Kongo society (as in most of the matriarchal systems) and not a decision making power, they are subject of non linear interpretation of the law (one time modern, one time traditional), depending on the “economical” benefits men or communities can make of this inadequacy of modern law with traditional law.
Finally,
Quote:
From JMM99:
It seems odd that some sort of inter-ville conflict resolution system is not "indigenous", especially between villes of the same culture (e.g., North American Indians from Labrador through the Great Lakes regularly used restitution as an alternative to blood feuds). Perhaps, that concept has been lost because of repeated armed conflicts. In any event, whether you call it Sand Sea Law or something else, it will have to be imposed (or at least introduced) by a third party. So, you have more a "rule by law" than a "rule of law". Rule by law is OK if it is accepted by all concerned.
Mike, in fact you are very right in the sense that intra ethnic group regulation mechanisms should have been existing. I believe, in the particular case, that the political problematic is the core issue and not the cattle raiding issue. That is why traditional mechanisms might be no more functioning.
To illustrate this, I recommand to go to the following link:
http://www.gurtong.net/ECM/Editorial...2/Default.aspx
It also shows that in so much war disrupted context, rule by law is somehow a first step that has to be imposed before being able to even think of imposing rule of law. (Comments are very interresting).