(2008) JLP 57: 101-139
On the basis of ethnographic research this paper examines the everyday functioning of the legal system and the common professional practices of its actors in the Republic of Benin.
The fundamental functional problems of the Beninese legal system arise from severe personnel, material and technical, organizational and regulatory under-resourcing or misresourcing. In the face of the resultant overloading of the system, the professional legal actors and their clients develop collusive relief strategies of informalization and privatization, each arising in two forms. Informalization may be pragmatic, developing spontaneously. This is illustrated by the numerous simplifications of the formal requirements for obtaining official documents or certificates, which are often in direct contravention of the law and never written down. It is more prevalent than the other form, administrative informalization, illustrated by the practice of prospective home owners acquiring only dwelling authorizations (permis d’habiter) rather than full legal titles to their building lots. Privatization of conflict resolution may be effected by keeping conflict resolution outside the legal system (avoidance strategies), and also by spontaneous internal privatization, generally referred to as corruption. In the latter case conflicts are dealt with by the official legal professionals using resources of public office but outside the correct legal procedure. An example is when an official of the public prosecution service (parquet) uses the threat associated with their official function in criminal proceedings to induce a person to settle a civil claim (the official usually being paid a commission). A result of this is that all or a sufficient number of Beninese citizens work on the assumption that decisions by the legal system are not produced by means of correct procedures, but by payment in other ‘currencies’. Consequently it is not possible for sufficient trust in the system to emerge to justify sole dependence on the legal process. This, in turn, reinforces in a feedback loop the incentive for the use of alternative or additional ‘currencies’. Corruption thus perpetuates itself.
The analysis suggests that, contrary to a commonly cited model of alternative conflict resolution methods, avoidance and violence should not be viewed as the only alternatives to legal procedure. The examples given show that there are further alternatives like ‘time’, ‘money, ‘social status’, ‘social relations’ and ‘supernatural powers’. Moreover, these are not usually mutually exclusive alternatives, but are combinable and are typically used on a complementary basis. Their scope is always limited by the structure of society, the social attributes of the actors, and the nature of the conflicts, but in an African society like that of Benin, the scope and combinability of the various options, and the possibility of ‘optation’, would appear to be larger than in European society.