Law and Social Change

LAW AND SOCIAL CHANGE
ROBERT F. MEAGHER
DAVID SILVERSTEIN
Like the hapless Edward Stapleton in Poe's classic tale,1 not only
have law and development studies been interred but the corpse has been
exhumed and lies waiting for the grave robbers to begin their grisly post
mortem.2 Some of the leading scholars who first breathed life into the field,
since grown tired and frustrated with their unruly plaything, have sounded
the deathknell and written the epitaph.3
But the field of law and development—or, in the broader concept, law
and social change—lives and must be nursed back to full health. If the
dominant views of the 1960s have reached a dead-end, what is called for
is a fresh beginning.
The object of this article is to put behind the recrimination and soul
searchings which have characterized writings in thefield*and to move in a
new direction. Part I introduces the various approaches to law and change
and discusses the shared underlying assumptions which have dominated
the literature. Part II then presents a brief critique of two leading "instru
mentalist" models of law and change and suggest how this approach has led
some of the field's leading scholars to frustration and disillusionment. Part
III proposes a new look at a culturally-specific approach to law and change
which has, thus far, received more limited attention from scholars.
Finally Part IV presents fieldwork of the author in Ethiopian land reform
as a practical application of the culturally-specific approach and as a
model for a fresh beginning for studies on law and change.
1. The Premature Burial (1844).

2. See, e g., Merryman, "Comparative Law and Social Change: On the Origins.
Style, Decline and Revival of the Law and Development Movement", 25 Am. J.
Comp.L. 457 (1977); Burg, Law and Development: A Review of the Literature and a
Critique of 'Scholars in Self-Estrangement'," id. at 492; and, The Research Advisory
Committee on Law and Development of the International Legal Center, Law and
Development; The Future of Law and Development Research (New York, 1974).
3. See Trubek and Galanter, "Scholars in Self-Estrangement: Some Reflections on
the Crisis in Law and Development Studies in the United States," 1974 Wise. L. Rev.
1062 (hereinafter cited as Scholars in Self-Estrangement).
4. Id. See also Robert B. Seidman, The Lessons of Self-Estrangement: On the Metho-
dology of Law and Development (unpublished monograph, 1975); David M. Trubek and
Marc Galanter, Scholars in the Funhouse: A Reply to Professor Seidman (unpublished
monograph, 1975); and Robert B. Seidman, A Replication to Professors Trubek and
Galanter (unpublished monograph, 1975).
2 Law and Social Change
The communications gap
An understanding of the nature and role of law is of fundamental

importance to all who are interested in change in society. Change in policies
are ordinarily implemented through law and the legal processes of society,
at times leading and at times following change. Nevertheless, law is often
ignored, poorly understood, narrowly construed or taken for granted by
many involved with development analysis, planning and administration,
with the result that it becomes yet one more unrecognized impediment to
change efforts.
During the nineteenth century, "evolutionary" theory and "stages of
growth" models borrowed from the natural sciences5 attracted an impres
sive following of some of the leading social scientists of this period.· Alth
ough there are many competing views today in both the natural7 and the
social sciences,8 many models of development still incorporate elements of
the "stages of growth" theories. As applied to social, political and economic
development, these models usually assume that all societies are tending
toward the same form of political and economic system whether it be a
free market-democratic system, a command society, or some hybrid of
these.· In such models, the role typically assigned to law and change
studies is that of overcoming the "gaps" which are perceived to exist
between the present state of the law and that which is needed to support a
modernized political-economic system.10 The following tacit assumptions
regarding "law"11 have been made in relation to developing countries:
5. See e.g., C. Darwin, On the Origin of Species (1859).
6. See e. g, W.G. Friedman, Legal Theory (1976).
7. One of the most recent critiques of Darwin's evolutionary theories appears in
S J. Gould, Ever Since Darwin (1977). Professor Gould argues that geological evidence
does not support Darwin's theory of "gradualism" but rather suggests a biological
history of relatively long periods of species equilibrium punctuated now and again by
the comparatively rapid emergence of a new species or the sudden disappearance of a
previously-existing species. A similar process of "change" has been asserted to exist in
the physical sciences. See T.S. Kuhn, The Structure of Scientific Revolution (2nd ed.
1970).
8. ChodakS, Economic and Social Development.
9. See e.s-, W. W. Rostow, The Stages of Economic Growth (1966); W. W. Rostow,
Politics and the Stages of Growth (1971); N. J. Smelser, Sociology: An Introduction
733-57 (2nd ed. 1973; and R. P. Appelbaum, Theories of Social Change 15-64 (1970).
10. See Trubek, "Toward a Social Theory of Law: An Essay on the Study of Law
and Development," 82 Yale L. J. 1, 18 (1972) (hereinafter cited as "Toward a Social
Theory of Law"). See alsoH.S. Maine, Ancient Law (1861). Maine's six "stages" of
legal development are discussed and criticised in L. Fuller, Atatomy of the Law 49-57
(1968).
11. The fundamental question "What Is Law?', has been the subject of heated
debate among lawyers, sociologists, and anthropologists. As used in this paper, the
term "customary law" refers to ''human interaction" or the way in which people in a
given society relate to each other. The classic statement of "law" in this broad sense
Law and Social Change 3
1. Law does not exist in developing countries or is very "underdeve

loped.12
2. Law is essentially the same everywhere (or it will be once
countries modernize).13
3. Institutions which do well in one country will function equally
well in all other countries.1*
4. Simply enacting legislation or creating an institution will solve
the problem of implementing development programs.15
5. Law consists of a series of rules which are interpreted in a fairly
static way.16
6. Law is a logical, self-co.itaincd, autonomous system.17
Some of these assumptions, although inconsistent with each other, are
held simultaneously by many development practitioners; and all of these,
in varying degrees, are wrong. Problems which arise because of these and
other equally erroneous assumptions about the nature and functions of law
are not likely to be solved by flooding development programs with
lawyers.18 The alternative course is to sensitize non-lawyers who are
interested in change to those aspects of law and the legal process which
appears in B. Malinowski, Crime and Custom in Savage Society (1926) and Fuller,
"Human Interaction and the Law", 14 Am. J. Comp L. (1969) [hereinafter cited as
"Human Interaction and the Law"]. Many writers, however, would not consider this
type of interaction as "law" without at least certain institutionalized features such as
courts and sanctions or their "functional equivalents.," See also Sally Falk Moore's
definition of "reglementation" in Law as Process (1981). Compare E.A. Hoebel, The
Law of Primitive Man (1954) with Pospisil, "The Attributes of Law", in P. Bohannan
(ed ), Law and Welfare (1967).
12. See e.g., E.A. Hoebel, The Law of Primitive Man (1954); and, Redfield,
'Primitive Law", in P. Bohannan (ed), Law and Welfare (1967).
13. Trubek and Galanter criticize this perspective in "Scholars in Self-Estrangement"
supra note 3.
14. Seidman has always rejected this assumption. See Seidman, "Law and Develop
ment: A General Model," 6 L. Soc'y Rev. 31 (1972), and Seidman, "Administrative
Law and Legitimacy in Anglophonic Africa: A Problem in the Reception of Foreign
Law," 5L. Soc'y Rev. 161 (1970). Trubek, on the other hand, did not seem to appreciate
this fact until completing his field work in Brazil. Compare "Toward a Social Theory
of Law," supra note 10, with "Scholars in Self-Estrangement", supra note 3.
15. This assumption regarding legislation is often charateristic of developed countries
as well. Thus, interest groups in the United States will actively lobby for the passage
of certain desired legislation but then devote neither time nor money to insure its
implementation. See J. L. Pressman and A.B. Wildawski, Implementation (1973).
16. Compare Trubek, "Max Weber on Law and the Rise of Capitalism", 1972 Wise.
L. Rev. 720 with "Human Interaction and the Law," supra note 11.
17. Ibid.
18. See Friedmann, "The Role of Law and the Function of the Lawyer in the
Developing Countries," 17 Vanderbilt L. Rev. 181 0963).
are important to their goals so that they are prepared to ask the right
questions and identify problems raised by the legal environment.18
It is necessary, first to demonstrate that law is, in fact, relevant to
change. This requires some preliminary comments on the interplay bet
ween law and change. In recent years, much of the work in the general area
of "law and development" has focused on either the development of legal
institutions (e. g., courts, legal professions, legal aid, legal education, dispute
resolution procedures) or on international economic law (e. g., the role of
private foreign investment, foreign aid, international trade and inter
national organizations). In the post World War II period a limited number
of scholars have expounded upon the "systems research" carried out
historically by Max Weber, Emile Durkheim, George Simmel and others.
This research delves into the interrelationship between law, economics
polities and the social structure with the objective of constructing general
theories about society and change.40 Although this may be a fruitful the
oretical perspective, we believe that the present state of the art requires an
empirical country-by-country approach to test less refined hypotheses which
may, eventually, provide the basis for a general theory of law and develop
ment. For the time being, therefore, we treat law as "culturally
specific."
I Law as a Process
To most non-lawyers, the word "law" signifies a collection of rules.21

Although rules are certainly an important part of law, they are only a
part. We view law more generally as a process which commences with
policy formulation (discussion) and continues on to rule-making (or the
creation of an institution or law), implementation (communication of the
rule to the concerned public and bureaucracy with provisions for enforce
ment including sanctions or incentives) and dispute resolution (or
clarification). This process can include customary law, enacted law,
contract law and adjudicative law as discussed below.22 We must begin,
however, by defining what we mean by "law".
19. See e.g., Friedman, "Legal Culture and Social Development," in L. M. Fried
man and S. Macaulay (eds.), Law and the Behavioral Sciences 1000-17 (1969)
thereinafter cited as "Legal Culture"]; and, Lev, "Judicial Institutions and Legal Culture
in Indonesia," in C. Holt (ed.), Culture and Politics in Indonesia 246-318 (1972).
20. See e.g., R.M. Unger, Law in Modern Society (1976).
21. See e g., H. J. Berman and W.R. Greimer, The Nature and Function of Law
16-37; (1966) Fuller, "Human Interaction and the Law," supra note 11.
22. See "Human Interaction and the Law," supra note 11. There is no need to
discuss the many schools of law running from natural law through positivism and
including both historical and sociological jurisprudence because many others have done
this. See, e.g., E. M. Schur, Law and Society 23-58 (1968).
At the broadest level, law comprises a series of norms which a given

society accepts at a given time.23 These are, in effect, the base lines along
and against which an individual organizes his life with respect to others.24
People accept limitations on personal freedom for the good of the group
and receive, in return, an increased sense of security and a higher level of
predictability. These aorms are observed most clearly, perhaps, in laws
controlling anti-social behaviour (e.g., criminal law), but they also find
expression in rules governing such matters as torts, contracts and
property.
Viewed in these general terms, law facilitates social interaction. It
regulates conflicts and disputes, attempts to restore equilibrium in the
social system when it becomes unbalanced, gives some degree of predict
ability and certainty to voluntary transactions and arrangements, guides
social action by rationality and efficiency, teaches people what is right and
wrong according to the prevailing normative standards, and helps to main
tain historical continuity.25 It should also be recognized, however, that
just as law facilitates social interaction, so social interaction and the social
forces working on the individual through the process of "reglementation"26
facilitate the very efficacy and relevance of the law in society.
All forms of "law" share these general characteristics. For analytical
purposes, however, it is helpful to disaggregate "law" into four subcate-
gories on the basis of their respective origins: customary law, contract law,
enacted (or authoritatively declared) law, and adjudicative law.27
Customary law is the foundation of every legal system.28 It is in
human interactions that one finds the social context for all existing law
and the probable parameters for new law. Professor Lon Fuller has
distinguished the concept of customary law from mere habit or usage by
suggesting that it is:29
. . . a language of interaction. To interact meaningfully men
require a social setting in which the moves of the participating
players will fall generally within some predictable pattern. To
engage in effective social behavior men need the support of inter-
meshing anticipations that will let them know what their opposite
numbers will do, or that will at least enable them to guage the
general scope of the repertory from which responses to their
23. See e.g., T. Hobbes, The Leviathan; J.Locke, Two Treatises of Government; an ,
"Human Interaction and the Law," supra note 11.
24. Ibid.
25. See supra note 21.
26. Sally Falk Moore, Law as Process, supra note 11.
27. See "Human Interaction and the Law," supra note 11.
28. Ibid.
29. Id. at 2.
actions will be drawn . . . the term 'complementary expectations'

indicates accurately the function I am ascribing to the law that
develops out of human interaction, a form of law we are forced—
by the dictionaries and title headings—to call "customary law".
Taking Fuller's customary law a step further, Sally Falk Moore in

Law as Process, introduces the concept of the "semi-autonomous field"
as a perspective from which to study law and social change and the in
herent limitations of law as a medium of change in society. In identifying
the semi-autonomous field, Moore speaks of the influence of law on the
individual in the form of "reglementation" or rules of the game by which
an individual functions in his particular role in society. In so doing, Moore
emphasizes the vital imperative of the social context, or the "governing
and non-governing sites of rule-making and enforcing"30 on law itself.
She writes:
To understand these rules—legal, non-legal, or illegal—it is

essential to know something of the social context in which they
are formed. There is a general utility in looking at legal rules in
terms of the semi-autonomous social fields on which they impinge.
It tempers any tendency to exaggerate the potential effectiveness
of legislation as an instrument of social engineering, while demon
strating when and how and through what process it actually is
effective. It provides a framework within which to examine the
way rules that are potentially enforceable by the state fit with
rules and patterns that are propelled by other processes and
forces.31
At another point she says:
The social reality is a peculiar mix of action congruent with

rules (and there may be numerous conflicting or competing rule
orders) and other action that is choice-making, discretionary,
manipulative, sometimes inconsistent, and sometimes conflictual.
Some 'systems' of normative rules are 'used' in social life, they
have to be such as to accommodate that action complex.32
Moore's notion that law, and the social context in which it operates,
must be inspected together, forms one of the bases of analysis in the
"culture-specific" approach and helps in refining still further our inter
pretation of customary law.
30. Law as Process, supra note 11 at 17.

31. Id. at 77-78.
32. Id. at 3.
Customary law as used here is thus by no means limited to primitive

societies.33 Rather, all societies have customary law, a portion of which
happens to be codified. "Plea bargaining" in the United States is, in
this sense, one example of customary law—a practice which has grown
from neither statute nor case law, but rather has arisen from the peculiar
social setting in which criminal law functions in this country. Similarly,
the hallowed doctrine of "stare decisis", the very basis of the common law
legal system, cannot be traced to statute or case law but only to habitual
practice resulting from a particular environment.
Contract law, as here employed, refers not to the corpus of jurispru
dence typically assembled under this heading for purposes of the introduc
tory law school course, but rather to the law which a formal, voluntary
agreement brings into existence.31 In other words, within limits, when
two individuals enter into a contract, they create their own law. Contract
law is, therefore, the institutionalization of individual choice together with
state enforcement.35
Enacted or authoritatively-declared law is created by the legislative
or the executive branch of the government, which may be a village council
and its chief in one place or a modern legislative body and the head of
government in another. Administrative law then becomes a sub-category
of enacted law encompassing all of the rules, regulations and procedures
devised by the bureaucracy to implement enacted law and, in this form,
safeguards the "rule of law" by regulating the power of the state over
individuals.3·
Adjudicative law relates to the decisions of judicial or quasi-judicial
or other dispute resolution bodies. These decisions typically reflecta
choice between competing constructions of enacted or contract law, often
on the basis of customary law, and, as interpretations and integrations of
these other forms of law, constitute still a fourth category based on
origin.
One or more of these categories of law may dominate in a particular
society depending on its social, economic and political structures. Every
society, however, is likely to have each of the four categories in some pro-
33. See B. Malinowski, Crime and Custom in Savage Society (1926).
34. See "Human Interaction and the Law," supra note 11, at 14 and 27-30; and
"Toward a Social Theory of Law," supra note 10 at 32-34.
35. Of course, if a contract goes beyond the bounds of accepted norms, society will
not enforce it. Thus, society will not enforce a contract between A and B for the
murder of C on the grounds that it is contrary to "public policy". Id., note 99 at 33.
36. See e.g., A.V. Dicey, Law and Public Opinion in England (2nd ed., 1914); S.P.
Simpson and J. Stone, Cases and Readings on Law and Society (1948); and W.G.
Friedmann, Law in a Changing Society (2nd ed., (1972) [hereinafter cited as Law in a
Changing Society]. But see R. M. Unger, Law in Modern Society (1976) 176-216. Unger
views the gradual disintegration of the "rule of law" as an inevitable feature of the
"rule of welfare state."
portion. In a traditional agricultural subsistence economy, for example,

one would expect to find a slowly-evolving customary law concerned
primarily with personal law problems such as marriage, divorce, inheri
tance, property rights and the practices associated with barter.37
Disputes would be settled primarily through some form of mediation or
conciliation. By contrast, in a market economy, one would expect
contract law and a more formal adjudicative system, both operating within
the bounds of customary law, to prevail.38 In a mixed economy, enacted
law should be found operating side-by-side with a more restricted contract
law, and the adjudicative bodies would probably include both courts and
administrative or quasi-judicial institutions.39 Finally, a strongly centralized
and directed economy should be differentiated from the previous example
in that the role of contract law would be greatly reduced and would be
more compulsory than volitional.40 Adjudicative bodies in the form of
courts and quasi-judicial or administrative institutions would continue to
play an important role.
Customary law, as noted earlier, is the foundation and legitimation for
all other categories of law. It establishes the normal limits of enacted
and contract law, which in turn determine the parameters of adjudicative
law. This analysis underlies Professor Fuller's argument that "we cannot
understand 'ordinary' law (that is, officially declared or enacted law)
unless we first obtain an understanding of what is called customary law."
The analysis also underlies Sally Falk Moore's distinction between "law"
as government enforced rules and "reglementation" which includes both
governmental and non-governmental sites of rule making and enforcing.41
Customary law, and reglementation which are constantly evolving, is, thus,
an integral part of adjudicative and enacted law, all of which may become
or form the basis of the customary law over time, A totalitarian or autho
ritarian government may, by sufficient force, impose rules on society which
go beyond the boundaries of prevailing customary law.4* The success of
37. See e.g. M. Gluckman (ed.), Ideas and Procedures in African Customary Law
(1969).
38. See generally "Toward a Social Theory of Law", supra note 10 at 32-34; and
"Human Interaction and the Law," supra note 11 at 13-20.
39. See "Toward a Social Theory of Law," supra note 10, at 32-34. See also A.T.
von Mehren, ΤΆ« Civil Law System 465-820 (1957); and R.B. Schlesigner (ed.). Forma
tion of Contracts: A Study of the Common Core of Legal Systems (1968).
40. See "Toward a Social Theory of Law, supra note 10. See also W.R. La Fave
(ed), Law in the Soviet Society (1965).
41. "Human Interaction and the Law," supra note 11 at 2. Also see Law as Process,
supra note 11.
42. An Interesting example is the manner in which the Cuban government succeeded
in improving the status of women. For a contrary result see G.J. Massel, "Law as an
Instrument of Revolutionary Change in a Traditional Milieu: The Case of Soviet Central
Asia. " Law and Society 179-228 (1968).
these measures in the short run depends upon the relative degree
of organization and power of the non-consenting elements of the
society.43 In the long run, such measures will, assuming the government
maintains power, eventually be subsumed by an expanded customary
law unless the government is first overthrown.
In summary, "law" should be viewed as a process and should be
disaggregated into its four component parts before attempting to relate
it to the other sectors of a society.
Law and social change
At an early stage one interested in law and change should clearly

identify his or her implicit or explicit theory of change because this will
bias the view of the role of law in change. There is a long-standing con
troversy over whether law "leads" change or "follows" change, i.e.
embodies change which has already occurred.41 Thus, some practitioners
believe in the efficacy of rationally-construed reforming laws48 whereas
others believe that only when popular custom has fully evolved could and
should the legislators take action.48 History provides numerous examples
to support both positions. For instance, the legal concept of "limited
liability" is an example of a law which clearly led change.47 On the other
hand, abortion law decisions by the U.S. Supreme Court seem to reflect
the fact that abortions are being performed in large numbers and with
widespread acceptance. Here, the judiciary is merely legalizing the
practice.
In broad terms, "change" is of two types: continuous or evolutionary
and discontinuous or revolutionary.48 The most common form of change
43. See Law in a Changing Society, supra note 36 at 375-97.
44. See "Legal Culture", supra note 19.
45. See H.L.A. Hart, The Concept of Law (1961). Historically, this group of scholars
has included both the "formalists", such as Austin and Kelsen, and the "utilitarians",
such as Bentham and Ihering. see E.M. Schur, Law and Society 23-58 (1968).
46. This group includes the "cultural" and "historical" schools as represented by
Savigny and Maine as well as the "sociological jurisprudence" school represented by
Ehrlich and Pound. Contemporary examples of this approach in the developed
countries are the many trends toward decentralization such as the "little city halls"
which have become increasingly popular. With respect to the less-developed countries,
at least one school of political modernization thinking emphasizes the institutionalization
of popular participation techniques. Compare D.E. Apter, The Politics of Modernization
(1965) with S.P. Huntington, Political Order in Changing Societies (1971).
47. Following the introduction of the legal concept of limited liability, the amount
of risk [capital available for business greatly multiplied. See W. Sombart.
48. For general theories on change see A. Etzioni and E. Etzioni (eds.), Social Change
(1964); W. Moore, Social Change (1963); W. Moore and R. Cook (eds.), Readings on
Social Change (1967).
is continuous. This day-to-day incremental change is a subtle, but dynamic,

factor in social analysis.49 For those concerned with increasing the rate
of change, the most common technique is by planning.50 Planned change
may be either continuous or discontinuous, depending upon whether it
works within the existing social order or outside of it. Discontinuous
planned change, such as the 1917 revolution in Russia, involves a deliberate
effort to radically alter existing norms and structures. Lenin and other
early Soviet leaders realized that the discontinuous change is more easily
planned than implemented. Many of the new Soviet edicts conflicted with
the customary or "living" law of the people and were rejected.51 Lenin's
statement of "two steps forward and one step backward", although made
in a different context, was a fairly accurate reflection of how change took
place in the Soviet Union during these formative years. Time, education
and indoctrination, coupled with the threat or reality of sanctions, were
all necessary ingredients in bringing about the desired change.
Still another significant form of discontinuous change is brought about
by cataclysms such as floods, droughts, wars and depressions.52 These
events may facilitate or even necessitate radical changes in social norms.
For example, the farmer without reserves and no rain is forced to move,
establish a life in a new community and, perhaps, assume a new profession.
In so doing he will also be forced to adapt to his new environment and to
accept new norms. This may be thought of as discontinuous, unplanned
change.
Given the miracles which governments in developing countries are
called upon to perform, extending into all spheres of society and with the
time constraints which are perceived to be operative, it is not surprising to
find a heavy reliance by these countries on discontinuous planned change.63
49. For instance, a verse by T.S. Eliot goes:
What we know of other people
Is only our memory of the moments
During which we knew them. And they have changed since then
To pretend that they and we are the same
Is a useful and convenient social convention
Which must sometimes be broken. We must also remember
That at every meeting we are meeting a stranger.
From The Cocktail Party.
50. Seee.g·., A. Waterston, Development Planning (1969); W.A. Lewis, Development
Planning (1966); and, W.G. Bennis et al. (eds.), The Planning of Change (2nd ed., 1969).
51. See e.g., M. Dobb, Soviet Economic Development Since 1917 (1948).
52. An interesting area which merits further investigation is whether it is possible to
artificially induce the kinds of tensions in individuals which lead to "cataclysmic
change". On the other hand, even if it is possible, such manipulation of individual
behaviour raises difficult ethical questions.
53. See supra note 46. Specific examples include the Soviet Union after 1917, Cuba
under Castro, and more recently many Latin American and African countries such as
This is commonly referred to as a "top-down" or "instrumentalist"

approach because it involves rules from the upper echelons of government
being imposed on society, usually through the intermediary of bureau
cracy.54
Even when the underlying policy analysis is valid, however, there are
major social impediments to the success of a purely instrumentalist
approach to change and, in turn, to law. In particular, instrumentalist
approaches tend to ignore one or more of the three most important
linkages between law and society: (I) the linkage between the legal and
f ocio-economic systems; (2) the interaction between customary and enacted
law; (3) the linkage between the legal-administrative infrastructure and the
implementation of law.
1. Legal and socio-economic linkages
The examples set forth above in relation to the types of law which
dominate in different societies suggest that a change in a society's economic
structure sets limits on the form of its legal system, and vice versa. The
same might be said for various political and social systems. A failure to
recognize these inter-relationships may seriously impair the implementation
of development policies.
Writes Sally Falk Moore, "legislation consists of conscious attempts
at social direction. But clearly, societies are in the grip of processes of
change outside this kind of control."55 Planning, she writes elsewhere,
is therefore "the study of the way partial orders and partial controls
operate in social context."56 It must suffer the "direct and secondary
effects of many other simultaneous events and processes which were not
necessarily legislated into being.57
She adds, summarily, that legislation is "intrusive" on society, a
"tinkering with an ongoing social field."58 One must understand Moore's
concept of "networks of interaction" in her morphology of semi-autono
mous fields of "corporate groups", "groups that have the capacity to
make some rules that bind members,"58 and which may conflict with the
laws of the state.
The matter is still more complex because many developing countries
Ethiopia and Ghana. These countries seem to believe that instrumental use of law
can short-cut the process of change and development in their societies; and, their
attitudes have been shared by many lawyers in developed countries as illustrated by
Trubek, Galanter, and Seidman.
54. See Seidman, "Law and Development: A General Model," 1972 L. Soc'y Rev.
311 thereinafter cited as "Law and Development: A General Model"].
55. Law as. Process, supra note 11 at 66.
56. Id. at 30. (emphasis added).
57. Id. at 8.
58. Ibid.
59. Id. at 17
have "dualistic" economies60 and, thus, dualistic legal systems*1 and more
complex and competitive corporate groups working on the allegiance of
the individual. Laws and institutions which function well in the monetary
sector may come to a halt in the subsistence sector.
In addition both historical and cultural factors may influence the way
that law is viewed by society.82 For example, the sanctity of contract is
a characteristic of both the United States and the United Kingdom. In
these countries the parties will generally be held strictly to what they have
incorporated into their written agreement, whereas in many other countries
the courts will more readily go behind the contract and order reformation
if events have arisen which were not originally contemplated by the parties.
These approaches to contracts reflect but one example of the different
views of human interaction which characterize different societies.
2. Customary and enacted law interactions
A proposed change, embodied in a law or new institution, may be

radically at variance with the "living" or customary law concepts of the
population.63 It is not enough to reply that, if the solution is "good"
for the people, it should be imposed on them. A prominent development
economist has stated: "We know how to develop the country if only
those damn politicians would let us do the right thing."61 If there were
no people either no doubt his job would be still easier. Unfortunately,
many interested in change are not in a position to anticipate conflicts with
customary law simply because they do not know what the local customary
law is. These problems are particularly acute in heterogenous societies
where several not always consistent bodies of customary law may coexist.65
The feedback mechanisms of a modern industrial state, which operate
through interest groups and fairly accurately reflect the opinions of the
various sectors of society, are not usually good indicators in many developing
countries because these groups are poorly organized and financed if they
60. See e.g., B. Higgins, Economic Development (2nd ed-, 1968) 224-66 and
296-326.
61. Harvey, W.B., Introduction to the Legal System in East Africa (1975).
62. See "Legal Culture," supra note 19, and J.W. Hurst, Law and the Conditions of
Freedom (1956).
63. See Ehrlich, "The Study of the Living Law," in R.D. Schwartz and J.H.
Skolnick (eds.), Society and the Legal Order 149-54(1970). An example familiar to
most Americans of a statutory law which was radically at variance with the "living"
law was prohibition.
64. Statement of Hollis Chenery, a noted international economist at an informal
meeting attended by one of the authors.
65. Many African countries such as Nigeria and Tanzania, for example, are
comprised of different tribal groups having different cultural backgrounds and often
speaking different languages or dialects.
exist at all. As a result, poorly conceived, controversial or simply

inappropriate legislation is often enacted but seldom successfully
implemented, at least in the short run.
3. Legal-administrative linkages
Even assuming that legislation is not contradicted by customary law,

or the reglementation of the semi-autonomous fields in society, it still may
not be effectively implemented if there are weaknesses in the society's
legal-administrative infrastructure. How does a society communicate
changes in the law in circumstances where good communication and
transportation systems are lacking? Are the peripheral areas away from
the centre of government kept informed of legal changes in some regular
manner? Is there a feedback mechanism to keep the center in contact
with the periphery? Does the enforcement system extend beyond the
capital into the countryside? Is justice applied evenly or is it based on
class, ethnic or other distinctions, in other words, is there a selective
enforcement of law?68 Are incentives (positive sanctions) or penalties
(negative sanctions) or some combination of the two more likely to bring
about compliance with the law? Are the courts used? Is there respect
for the law? If the court arrives at a judgment, will it be readily enforced
or must the parties begin to negotiate once again?87 Do the poor have
access to the legal system or is it too expensive in time or money or both?
Answers to these questions cannot be taken for granted.
Accordingly, a better understanding of the nature of law, the way it

operates in a society, and its relation to social change is an indispensable
prerequisite for legislators, development practitioners and reformers. In
the next section this background on the nature of law and its role in
society is applied to analyzing the leading contemporary approaches to
law and development.
66. In L. Fuller, Anatonyofthe Law 17-18 (1968), for example, Professor Fuller
illustrates this point by posing two hypothetical cases arising under a statute which
makes it a misdemeanor "to sleep in any railway station." In the first case an
"alcoholic derelict who came to the station dragging a tattered blanket, spread himself
out for the night, and was then arrested while his eyes were still open." In the second
case, a "neat and orderly traveller, waiting at midnight for a train that was five hours
overdue, had just fallen asleep sitting upright when he was arrested." "Has either of
these men violated the statute," asks Professor Fuller, "and if so, which?"
67. For example, in a recent multi-country case study, Professor David N. Smith
and Robert F. Meagher report the common practice in Indonesia of the winning party
to a law suit having to negotiate with the government official responsible for enforcing
judgments. See R.F. Meagher and D.N. Smith, Law and the Development Practitioner
(Final Report to the Agency for International Development, No. AID/CSD-3977-
1974).
II Contemporary Law and Development Models
Before analyzing particular approaches to the linkages between law

and change it is useful to define the parameters of these writings within
established fields of law. There are two distinct perspectives. The first
involves international and thus external factors. The second, municipal or
internal factors. On the international level Wolfgang Friedmann has made a
useful distinction between traditional public international law which he calls
"The Law of Coexistence" and some of the newer post World War II pers
pectives which he classifies as "The Law of Cooperation". The latter category
includes foreignaid and investment, international trade and the many new
institutions created to facilitate international co-operation and development.
This analysis focuses on the impact of international law and institutions on
national change. The internal legal factors and their effect on change are
usually considered with the general rubric of law and society studies includ
ing issues of administrative law, land reform, social welfare law etc.
These external and internal perspectives may be represented schematically as
follows":
LAW
INTERNATIONAL LAW LAW AND DEVELOPMENT
/ \ / \
LAW OF COEXISTENCE LAW OF COOPERATION LAW AND
| I SOCIETY
I I I
Traditional public Aid Land reform
International law Trade Welfare law
Investment Legal aid
International organizations Administrative law etc.
Emphasis in this paper will be restricted to the Law and Society
perspective although both internal and external factors are constantly
interacting.68
A major obstacle to analyzing law and development models is the
difficulty in finding a way of categorizing and labelling them. Without this
preliminary step, it is impossible to compare and contrast the different
68. See Friedmann, "The Relevance of International Law to the Process of Economic
and Social Development", in R.A. Falk and C.E. Black (eds.), The Future of the Inter-
national Legal Order, vol. II 3-35(1970). See also W.G Friedmann, The Changing
Structure of International Law (1964); S.P. Simpson and J. Stone, Cases and Readings on
Law and Society (1948). See also W.G. Friedmann and G. Kalmanoff (eds.), Joint
International Business Ventures (1961); W.G. Friedmann and J. Beguin, Joint Internationa
Business Ventures in Developing Countries (1971); and W.G. Friedmann et a!., Inter-
natioal Financial Aid (1966).
models and to attempt an actual or hypothetical application of the models

to a given set of facts. All classification schemes are inherently arbitrary
and imprecise. First, there are usually no compelling reasons for drawing
the lines in any particular places; second, there are usually no places where
the lines can be drawn such that at least some of the cases under conside
ration do not at least partially cross the lines.
There is, then, no unique classification scheme for law and development
models and we have uncovered no valid basis for preferring one scheme
over the alternatives. The selection of a classification scheme in itself
reflects a certain bias and predisposition toward the subject which is being
classified. This is probably unavoidable in studies of this type and, as long
as it is kept in mind, should not detract from the validity of those studies.
The classification scheme that is employed in this study is based on
the extent to which inputs from the society in question are brought into the
law and development model. By the "extent" of the inputs, we mean the
quantity of inputs, the point at which they are introduced,-and the use to
which they are put. Based on this classification scheme, contemporary law
and development models can be categorized into the following three schools:
(A) the "Core Conception—Liberal Legalism" school;69

(B) the "Middle-Level Hypotheses" school;70 and,
(C) the "Culture-Specific" school."
The essential characteristics of each of these three schools are compared
below.
69. The "Core Conception-Liberal Legalism" school has two branches—the

"traditional" core conception and the "enlightened" version which its proponents call
"eclectic critique". The diíerences and similarities between these two versions
of the core conception school are discussed in the text, infra. Professors
Trubek and Galanter directed the label "core conception" to themselves, prior
to their "enlightenment", as well as to others in the field. The newer "eclectic
critique" version waj developed by Trubek and Galanter, see Scholars in Self-Estrange-
ment, supra note 3, and they remain its leading proponents. Trubek and Galanter
acknowledge, however, that some law and development scholars continue to cling to
the "traditional" core conception, Id. at 1096 and note. 92.
70. The leading proponent of the "Middle-Level Hypotheses" school is Professor
Seidman. See Law and Development: A General Model, supra note 54. See also his
book, The State Law and Development (1978).
71. The leading proponents of the "Culture-Specific" school are Professors Lawrence
Friedman, Sally Falk Moore, David Smith, and the author Robert Meagher. See,
e.g., "Legal Culture", supra note 19. But for the fact that he never applied his writings
to the development field perse, Professor Lon Fuller might certainly be included in
this listing. See "Human Interaction and the Law," supra note 11. In general, the
cultural anthropologists also subscribe to this school of thought. See, e.g., A.H.
Niehoff (ed.), A Casebook of Social Change (1966); and, C M . Arensberg and A.H.
NiehofF, introducing Social Change: A Manual for Americans Overseas (1964).
A. The process spectrum and varying approaches to law and development
As discussed above, the classification scheme used here for categorizing

the different approaches to law and development is based on the extent to
which inputs from the society in question are brought into the law and
development model. The three schools of thinking which have been
identified according to this scheme are not hard and firm, but rather
represent so-called "ideal types" on a spectrum of approaches to law and
development. This division is, nevertheless, a useful one for comparing
the writings of the scholars in the law and development field and as a
point of departure for critical analysis.
Each of the three schools of thought are essentially "process"-oriented
approaches to law and development. The real differences are at what
stage in the process inputs from the society in question are introduced, and
this is the primary basis for classification. The other characteristic
features of each of the three schools—the answers each school provides to
the key question "What is Law?", "What is Development?", and "What
is the Linkage?"—are intimately related to this initial question.
Under the "traditional" core conception once espoused by David
Trubek and Marc Galanter,72 both goals and means are pre-defined, and
societal inputs do not enter the process until the very end when the
process is complete and the results, for better or worse, are being
evaluated.
Under the middle-level hypotheses model, by contrast, societal inputs
are brought into the process in the "middle" stages, after the goals have
been established but before the means for implementing them are selected.73
Robert Seidman, the principal proponent of this school, has few if any
reservation?., however, that once the society has been studied, rules can be
formulated and sanctions (positive or negative) devised which will be
effective in bringing about the desired changes. Thus, Seidman's proposi
tions for change are aptly called "middle-level" hypotheses.74 Seidman's
propositions are "hypotheses", however, only to the extent that Seidman
acknowledges some limits to what new rules can accomplish.One
of these limits is based on physical limitations;75 the other is based on
the values of the society in question.7e Seidman gives these limitations
relatively little attention, however, and, within the boundaries of these
limits, Seidman's "middle level hypotheses" are not hypotheses at all but
72. "See Scholars in Self-Estrangement", supra note 3. See also "Toward a Social
Theory of Law," supra note 10, and Galanter, "The Modernization of Law", in
M. Weiner(ed.), Modernization (1966).
73. See "Law and Development: A General Model", supra note 54.
74. /rf. at 311.
75. Id. at 314.
76. Id. at 314-15 and 322-33.
rather prescriptions for change."

Finally, there is the culture-specific school more or less represented by
Robert Meagher, David Smith and Lawrence Friedman.78 For this school,
the societal inputs come at the very beginning of the process and become a
part of the formulation of goals as well as the means for achieving those
goals.79
From this scheme it becomes, clear, for example, that the new enligh
tened" Trubek and Galanter model—what they call "eclectic critique"
approach still falls predominantly within the general core conception
school. In particular, the "enlightened" Trubek and Galanter model still
clings tenaciously to a "middle-class America" conception of what develop
ment should be,80 albeit an idealized vision of middie-class America fits
this Utopian image.81 But Trub;k and Galanter are at least ready to
acknowledge that a "Western legal system will not invariably lead to the
realization of these goals."82 Instead, having formulated a set of goals,
Trubek and Galanter say ¡t is necessary to study each society to determine
whether a "Western" legal system will lead to the realization of those
goals.83 Thus, the "enlightened" Trubek and Galanter position brings
societal inputs into the middle stages of the law and development process.
They are not yet prepared, however, to let the society in question deter
mine either the goals in development or the means to achieve them.
B. The middle-level hypotheses' critique of the core conception school
As discussed above, even the "enlightened" Trubek and Galanter

model, the "eclectic critique", is still a long way from Seidman's middle-
level hypotheses. The reason Trubek and Galanter are stumped, the
reason they are "scholars in self-estrangement" says Seidman,84 is because
having studied a society like Brazil and finding that "liberal legalism" will
not work, Trubek and Galanter have no alternatives, nowhere else to
77. Ssidman makes it quite clear that his goal is to establish a planned society that
this must be done quickly. He does not discuss the implications of a slower or
alternate approach.
78. Sse "Legal Culture", supra note 19 at 1007 and "Law and the Development
Practitioner" supra note 67.
79. "Scholars in Self-Estrangement", supra note 3 at 1099.
80. For example, Trubek and Galanter state, id.:
We call this approach "critical" because it has transformed into critical standards
what were previously assertions about the goodness and potency of law.... We
call it "eclectic" because, at the same time, it abandons the notion that in the real
world tendencies toward these values will cluster coherently.
81. « . a t 1081 and 1090-91.
82. Id.
83. Id.
84. See Robert B. Seidman, The Lessons of ¿Self-Estrangement: On the Methodo
logy of Law and-Development (unpublished monograph 1975).
turn.85 What you need to get out of this rut, says Seidman, are "middle-
level hypotheses"86—that is, alternatives to the "liberal legalism" tack.
Different alternatives may be needed to implement the desired changes in
different societies, admits Seidman, but there is no doubt that a careful
study of a society will lead to an instrumentalist approach that works.87
Why, then, did Trubek and Galanter fail to look for alternatives and
develop middle-level hypotheses like Seidman? Seidman has a ready
answer for this as well. It is because Trubek and Galanter do not have as
their goal the general notion of economic and social development. Instead,
they are wedded to a particular notion of development—the idealized
middle-class American image—and sometimes a study of a society dictates
an alternativ eapproach, for example, socialism and authoritarian govern
ment which is anathema to Trubek and Galanter are in a dilemma because
their goals—•"development" on the one hand, a free market economy and
democratic government on the other—are often found to conflict.88
Seidman writes: "They assume that law and social change in
conditions of development is not different from law and social change
generally. They begin with variables derived from studies of law and
society in the Western developed world 'universalistic rules' or 'the legal
culture' or the 'autonomous legal system'. They study the Third World
and its legal order not in order to ameliorate the torments of LDCs, but
as an exotic laboratory in which to test the chosen variables."89
Seidman, by contrast, purports to be relatively "value-free" or purports

to show the desirability of imposing rational intellectual controls over
"discretionary choices" in research.80 His sole goal is "development"; if
development entails some degree of socialism and authoritarian govern
ment, he is ready to embrace these. Whether this is not a thinly-veiled
disguise for a value preference different from that of Trubek and Galanter
is, of course, another question. A second and more important observation,
however, is that, in certain respects, Seidman's model and the "enlightened"
Trubek and Galanter model are open to the same criticism. First, both
85. Id. at 6.
86. Ibid.
87. Thus, Seidman observes, id. at 11: "Values enter into policy-choice only at the
point of deciding upon ends, not in determining the means."
88. Id. at 13.
89. See Seidman, The Stale, Law and Development 16 (1978).
90. Id. at 65. He writes, "The methodology of problem solving . . . contains a
number of discretionary choices. How to control these choices by intelligence and
experience rather than sentiments and values?... I have suggested that such intellectual
controls are possible because of the functional equivalence of values, ideal typical
models and large scale explanation or grand theory" Id. at 64.
schools begin by defining the problems of a society (although Trubek and

Galanter define the problems differently than Seidman). Second, both
schools look to rulemaking as the means for achieving their respective
goals, i.e., both schools are "instrumentalist" (again despite the fact that
Seidman may be willing to consider a broader set of rules than Trubek
and Galanter).
Accordingly, both schools share certain common features with respect
to their views of law, development and the linkage between law and
development which are significantly different from those of the third school
of Meagher, Smith and Friedman. Both the core conception school and
the middle-level hypotheses school see "law" as a set of state-made rules
enforced by sanctions. The stage at which these two schools bring societal
inputs into the process and their instrumentalist methodology dictate a
definition of law in these terms. While Seidman appears to be somewhat
more flexible in his definition of what kinds of "sanctions" may be used to
enforce the rules,81 this is not a material difference.
Similarly, while the core conception school's definition of "develop
ment" differs markedly in specifics from that of the middle-level hypo
theses school, as discussed above, the important overriding factor is that
both schools define "development" without reference to the specific
preferences of the society under consideration.
The approaches of the two schools to the linkage between law and
development has been discussed above. Looking at specific details, the
core conception school presents only a single type of linkage defined by
the "liberal legalism" model (which may or may not work), whereas
Seidman presents a number of alternative linkages or "middle-level
hypotheses" (one of which is bound to work if designed and selected
with an eye on the society in question).
C. The culturalist critique of the middle-level hypotheses school
As discussed above, the core conception and the middle-level
hypotheses schools share a common view of law dictated by their instru
mentalist methodologies, but differ with regard to the linkage between law
and development because of their different views of development.
By contrast, the views of the third school on each of these matters is
different because of the different stage at which societal inputs are brought
into the process. Under the culture-specific model, not just the imple
mentation means but the very goals are defined in terms of the legal,
economic, political, social and religious conditions prevailing in the
society in question.93 In other words, it is necessary to study how the
people actually behave.93 Not even the most avid instrumentalist could
91. See supra note 50 at 331-32.
92. See "Legal Culture", supra note 19.
93. See "Human Interaction and the Law", supra note 11.
deny that people's behaviour is fashioned, in part, by all of the existing

types of law prevailing in a society91 whether governmental or not.
Therefore, while the proponents of the core conception or middle-level
hypotheses schools can limit their attention to enacted law, proponents of
the third school are obliged to consider all four forms of law—customary,
contract, and adjudicative as well as enacted law. Li other words the
important point here is that the positions each school adopts on the key
questions of "What is Law?", "What is Development?" and "What is the
Linkage?" are not independent variables.95 Rather, logic and consistency
dictate certain answers to these key questions depending on the stage at
which societal inputs are brought into the process. Correspondingly, it
is not proper for the proponents of the school to criticize the viewpoints
of the proponents of other schools on their answers to these questions. To
be fair the criticism must be directed toward the school itself because the
viewpoints on law, development and linkage flow directly from allegiance
to the particular school.
Thus, one should address not the potential criticism that the culture-
specific school might have about the core conception and middle-level
hypotheses views of law, development and the linkage between them, but
rather focus on criticism of these schools as a whole, namely on the point
at which societal inputs are brought into the process. In this respect, the
Seidman model and the "enlightened" Trubek and Galanter model are
subject to the same criticisms. Both schools assume that having defined
certain goals independently of a society, there still must exist some
instrumental means for achieving these goals (although Trubek and
Galanter reject all but one of these means because of the undesirable
side-effects). Although Seidman certainly offers a broader range of
instrumentalist options than Trubek and Galanter, unlike Trubek and
Galanter he has not had the opportunity to put his model to the test. Is
it so clear that some form of instrumentalism can achieve any goal in any
society? Or, are the two limitations so blithely dismissed by Seidman,
especially the limit of societal values,86 more substantial and significant
than he would lead others to believe? This, in essence, is the culture-
specific school's major point of criticism of the Seidman and the
"enlightened" Trubek and Galanter models.
The Brazilian legal theorist Roberto Unger provides, however, perhaps
the harshest criticism of both the core conception and the instrumentalist
approaches to development.97 In so doing, Unger espouses a number of
approaches to law and development which intersect with those of the
culture-specific school. His approach, however, in contrast to both the
94. See e.g.. Law and Development: A General Model, supra note 50 at 315-16.
95. S.F. Moore, Law as Process 3.
96. Id. at 314-15 and 332-33.
97. Roberto Unger, Law in Modern Society (1976).
Law ard Social Change 21
instrumentalist and the culture-specific approach, embodies a natural law

concept. In addition, development or modernity for Unger is defined as
the resolution of the problem of order in society through a proper
identification of a latent or natural order in social life which reconciles
social organization with man's consciousness.
The identification of this "natural order" in society, (very much in
the Weberian tradition of structural transcendence in that it reconciles both
the immanent and transcendent nature of the social organization), must
emerge from the very core of the society. Communal consensus, embodied
in custom98 is the foundation, the cement, and the dynamic of change for
society. He thus rejects the bureaucratic rule of law and instrumental
role of lawmakers. He rejects the worth of exogenous, and therefore
artificial, inputs into the formation of society as it confronts the challenge
of modernity.
In this last respect, he goes farther than would the writers of the
culture-specific school. He differs more fundamentally from the culture-
specific school, however, in his recognition of and emphasis on an emergent
universal community of shared human value, the developing moral
language of mankind." For Unger, the theoretical postulate of comparison
among cultures is the unity of the human spirit. Social theory, for Unger,
should incorporate and fuse the metaphysical and the political. This
transcendent quality of Unger's writings place him outside the culture-
specific school yet his conception of change coming from within (how
societal inputs relate to the change process) and the concept of law as the
embodiment of custom, place him in close proximity.
The import of Unger's writings, however, rests in the fact that as a
legal theorist from a developing country he strongly challenges Western
liberalism in both its structure and mode of thought. His approach thus
merits consideration as an alternative approach to the study of law and
modernization from a decidedly non-Western point of view.
D. The instrumentalist critique of the culture-specific school
The fundamental difficulty in completely rejecting the instrumentalist

approach to law and development is that this is tantamount to throwing
up one's hands and becoming resigned to the idea that the LDC's will
have to suffer a slow and painful evolution toward development and that
98. Thus Unger conceives of two senses of custom. ' O n the one hand [customs]
can be the devices with which to defend the established beliefs and values of a parti
cular community, as articulated by those who have governed it in the past or control
it in the present... it may also serve as the primitive form taken by the struggle to dis
cover a universal given order in social life". Id. at 242.
99. Unger's leap to the universal is a hypothesis. The culturally specific school may
eventually arrive at the same conclusion but not before much more empirical work is
done.
there is little or nothing the developed countries can do to speed or ease

this transition. Indeed, some members of the culture-specific school
expressly endorse such a "hands-off" philosophy.100 Although the
majority of the proponents of the culture-specific school do not see the
cause as hopeless, they have been justifiably criticized for failing to offer a
concrete programme.
The low esteem accorded to this school of thought by the LDC's
themselves is, in large measure, attributable to the lack of a definite
programme. It is sometimes said that the LDC's would reject a culture-
specific approach in any event because it implies slow and gradual change
whereas they want rapid change.101 Such rhetoric, however, disguises the
fact that the seeming demand among the people of a society for rapid
change in the economic sector is usually tempered by their reluctance to
face the necessary concomitant changes in the political and social sectors.102
Therefore, it is believed that the people of a developing society would be
amenable to a culture-specific approach which promised steady progress
toward economic development at a pace which was compatible with
acceptable rates of change in their political and social sectors. It is
toward developing and applying such an approach that the remainder of
this article is directed.
Ill A Culture-Specific Model for Law and Development Studies
The previous section examined the contemporary approaches to law and

development studies and the criticisms applicable to each. If instru-
mentalism does not work or, even if it does, if it leads to undesirable
side effects, what can developing societies do to facilitate development?
The "receptivity-to-change" spectrum
Saying that law is "culturally-specific" implies, in effect, that law is

"subject-matter specific". Thus, in some areas law can lead change (i.e.,
100. See e.g., C M . Arensberg and A H . Niehoff, Introducing Social Change: A

Manual for Americans Overseas (1964).
101. See e.g., "Law and Development: A General Model", supra note 54 at
335-36.
102. In Modern Economic Growth (1966) at 157, for example, economist Simon
Kuznets observes:
In short, a high rate of modern economic growth is attainable only if the required
market shifts in industrial structure are not too impeded by resistance—of labor
and of capital, of people and their resources in the old and accustomed grooves.
See also Dennis Goulet, The Cruel Choice (1971).
a top-down approach is effective) whereas in other areas law can only

follow change. Of course, these subject matter areas are not fully
polarized but rather fall on a spectrum:
% receptivity to
0% 100%
"top-down" law
This is analogous to the "receptivity" spectrum posited by William M.
Evan.103 Evan further suggests that the effectiveness of a top-down
approach will vary according to the prestige of the rulemaking body.104
Thus, the legislature may be a more effective rulemaker than the courts in
a typical society.105 Several writers, for example, have noted that it is
relatively easy in a society to effect changes in commercial law by
legislation and reasonable enforcement mechanisms.10* Thus the area of
commercial law might be said to have, say, 75 per cent receptivity to a
"top-down" approach.
It is important to note that this does not necessarily imply a 25 per cent
receptivity to "bottom-up" law. For example, in commercial law areas
there is no reason to think that a "bottom-up" approach (that is, a change
in basic commercial practices started among the merchants and their
customers) might not also be 75 per cent effective.
It is not, however, a foregone conclusion that a "bottom-up" approach
must be 100 per cent or close to 100 per cent effective either. Although at
first consideration this might appear to be the case because a "bottom-up"
approach merely reflects how merchants and customers are actually
behaving, such movement may encounter fierce resistance by small but
powerful interest groups or by the government.107 Thus, there are actually
two "receptivity" spectrums—one for "top-down" approaches and another
for "bottom-up" approaches—and the two do not necessarily coincide. A
particular change in commercial law, for example, might have either a
75 per cent or 50 per cent receptivity on the "top-down" scale, depending
on whether it was initiated by a respected legislature or a less-prestigious
court, while at the same time a 60 per cent receptivity on the "bottom-up"
scale.
Where a particular subject matter area falls on these two scales is
what may be thought of as being "culturally-specific". This, then, is a
means by which the culturally-specific approach can be linked to a
103. See Evan, Law as an Instrument of Social Change, in Gouldner and Miller
(eds.), Applied Sociology: Opporturicties and Problems 285, 287 (1965).
104. Id. at 288-91.
105. Ibid.
106. Ibid.
107. Ibid.
positive course of action with respect to change and development. The

steps, in general, are as follows:
First, as always, it is necessary to define a set of goals. There must
be an answer to the question "What is Development?" This, however, is
not a major problem for the culture-specific school. By studying the
particular society it should ordinarily be possible to identify the priorities
which that society sets for itself.108 The problem for the culture-specific
school has characteristically been where to go from this point.
The next step in this model is to identify what changes are necessary
in order to achieve the goals determined in the first step. At this point
effective collaboration between development practitioners (legislators,
bureaucrats, lawyers and social scientists) becomes indispensable. The
required social changes are defined in terms of discrete "subject matter
areas".
The third step is to locate each of the "subject matter areas" on its
associated "receptivity" scales. It should be possible to do this with a
reasonable degree of accuracy based on the extensive preliminary empirical
investigations which constitute an essential part of the culture-specific
school's approach to law and development. For example, the Meagher
study of Ethiopian land reform discussed in Part IV draws some
conclusions of this general nature, e.g. receptivity to land reform
efforts and to the constitution of special adjudicative tribunals.10*
Finally, for those "subject matter areas" where change can be
effectively realized by "top-down" approach, the necessary laws should be
enacted—preferably by the most prestigious body in the particular society
(whether that is a legislature, a court, a charismatic leader, or whatever)
to insure maximum receptivity.110
For "subject matter areas" where it appears that change cannot be
effectively realized by a "top-down" approach, the subject matter must be
progressively disaggregated into smaller and smaller parcels until reaching
108. As previously noted, this can be a difficult problem in heterogenous societies

where several not always consistent bodies of customary law and different development
goals may coexist. See, supra note 65 and accompanying text. In these cases it
should still be possible to identify a set of "least common denominator" development
goals to which all or at least most of the members of the various societies would sub
scribe, for example, the elimination of hunger. The feasibility of adding additional
development goals to this basic list would then have to be judged in light of the amount
of opposition likely to be provoked among the dissident sectors of the society and
possibilities for coopting or otherwise overcoming this dissention. Generally speaking
both the development plan and the annual budget of a society reflect the official goals of
the society.
109. See pp. 25-39, infra.
110. See supra, notes 103-05, and accompanying text.
a point where each parcel does lend itself to an instrumental approach.1U

Alternatively, if even after disaggregation important sectors of the society
in question remain resistant to instrumental change, methods must be
devised for promoting "bottom-up" or customary law change building
wherever possible on existing, accepted structures and institutions.112
Given the fact Aat the developer's goals are those set by the society itself,
gentle prodding, education, publicity and, perhaps, small economic and
social incentives should do the job. If change by the latter method seems,
in a particular case, to take inordinately long, it must be because the
society itself, despite protestations to the contrary, does not really want
to change more rapidly.
These four steps, then, constitute a general theoretical framework for
applying a culture-specific law and development approach to a given
society. The next section, excerpted from a recent AID study conducted
by Robert F. Meagher and David V. Smith,113 demonstrates how such an
approach might be applied in practice.
IV Ethiopian Land Reform—The Culture-Specific Approach in Practice
As in most non-industrial countries, land tenure relations constitute

the basic institutional structure of Ethiopian society. With an estimated
per capita income of only $ 50, Ethiopia is one of the poorest of the less
developed nations. Ninety per cent of the population lives in rural areas,
and agriculture accounts for about 60 per cent of GDP and 90 per cent of
all exports. It has been argued both by foreign development advisors and
some Ethiopian officials that realization of the dual objectives of increased
agricultural productivity and an expansion of rural employment oppor-
111. For example, if the broad policy goal of land reform were directly attacked by
legislation requiring the liquidation of land holdings above a certain size, realization of
the goal might well be defeated by fierce resistance on the part of the landlords and a
combination of hesitancy and insufficient capital on the part of the tenant farmers. On
the other hand, land reform can be disaggregated into smaller and better manageable
goals such as reform of landlord-tenant relations and improved access off farmers to
cash crop markets through better transportation, communication and storage facilities.
These are "Subject matter areas" which better lend themselves to legislative solutions.
112. See pp. 28-29, infra. For example, Professor Lawrence Friedman observes:
"But it does not follow that the law cannot achieve a particular result, within a
certain culture, by making use of the tools which work best for that culture.
"Attitudes towards law within a community can act as an obstacle to social change
or they can serve as a tremendous source of strength— a value which can be tapped
at low cost or no cost to the government."
"Legal Culture", supra note 19 at 1013.
113. R.F. Meagher and D.N. Smith, Law ami ¡he Development Practitioner (Final
Report to the Agency for International Development, No. AID/CSD-3977 1974). The
case study which is illustrative of the approach has not been brought up to date.
tunities would require a comprehensive land reform programme. Such a

programme providing, inter alia, for nationalization of private landholdings,
reform of landlord-tenant relations and land registration was designed by
the government in the late 1960s. Legislation to implement the programme
was prepared by the Ministry of Land Reform and Administration, and
an adviser (economist) to the government was requested<io draft a policy
paper for presentation to the Parliament in support of the land reform
programme. The following case study examines the draft legislation and
the policy paper in the context of what is and what is not known about the
Ethiopian legal system with a view to determining what relevance law and
development analysis may have to the land reform problem.
A. Background
Ethiopia is a modernizing autocracy. Historically, the principal
elements underlying the struggle for political power have been ethnicity,
religion and class. Because national integration is still very tenuous, it
is essential to look carefully at the various sub-cultures when attempting
to design and implement any development programme.
Although characterized by very considerable ethnic diversity, Ethiopia
is dominated by two groups which together constitute about 73 per cent of
the population. The first group includes the Amhara and their close
relatives the Tigre, who total about 25 and 8 per cent, respectively, of the
population. The Amhara-Tigre are found in the central highland plateau
and the provinces of Tigre and Eritrea; and they share a common culture,
religion and history, and similar political, social and economic institutions.
The second major ethnic group is the Galla, who number about 40
per cent of the total population. Unlike the Amhara-Tigre, the Galla are
split along lines of tribe, religion, language and social institutions. Their
heterogeneity stems in part from the fact that they are found in all but
two provinces and they have, to a certain extent, adopted the ways of
those among whom they live.
The basic relationship in the Amhara-Tigre society is that of patron-
client: obedience to authority and deference to superiors characterize all
relationships, including those within the household. The Galla present
some interesting contrasts. Insofar as it is possible to generalize about so
heterogeneous a group, a greater degree of equality prevails. Political
position is based more on ability and achievement, and a political stru
cture of age-grades ((gada system) permits virtually everyone a degree of
responsibility at some time in life. The ideal of the Galla is tokumma, or
oneness with group: the individual is concerned with his role as a member
of the group.
The Christian Amhara-Tigre, the most famous of whom is former
Emperor Haile Selassie 1, are politically and economically dominant in
Ethiopia. However, the slightly more numerous Gallas, most of whom
are Muslim, also command important positions in the government, armed

forces and imperial bodyguard.
Over the years, the Emperor had consolidated his power over the
Ethiopian orthodox church and local nobility. Through a series of
well-conceived moves, he detached the church from its traditional seal in
Alexandria and gained control over the appointment of the bishops, who
in turn elect the head of the church. The power of the nobility was
successively minimized over a forty-year period by the development of the
imperial army to a level stronger than that of any regional army. In
addition, a new elite force, the imperial bodyguard, was created; and, in
1942, the taxation power of the local nobility was eliminated.
A revised Constitution in 1955 provided for the establishment of a
semi-elected Parliament with a bicameral legislature: an upper house
(Senate) consisting of senators appointed by the Emperor for six years
from among nobles, dignitaries and high-ranking church and government
officials over 35 years of age; and a lower house (Chamber of Deputies)
elected by universal suffrage from among Ethiopians holding land in their
constituency and who are over 25 years of age. Legislative initiative
rested with either the Emperor or a group of ten or more members of
either house of Parliament, and legislative enactments required the approval
of both houses and the Emperor. There were no political parties.
Although the Emperor had succeeded in consolidating and broadening
his base of authority, he was not without contenders for power as an
attempted coup d'etat in late 1960 and the successful 1974 coup
demonstrated. The earlier coup, headed by the commander of the
imperial bodyguard, also involved the Emperor's son, the commissioner
of police, chief of security and several provincial governors. As a result,
the territorial army was formed as a counter-balance to the imperial
army and the bodyguard, and it has been suggested that the event also
marked the beginning of the Emperor's willingness to delegate more power
to the legislature and to institute land tenure, taxation and land tenancy
reforms.
B. Ethiopian agriculture
Agriculture is the most important productive sector in Ethiopia,

accounting for about 60 per cent of GDP and 90 per cent of exports in 1970.
A majority of those engaged in agricultural activities participate only
marginally in the market economy. Most commercial farming, to the
limited extent that it exists, is in the hands of foreign concessionaires and
is primarily export-oriented. The technology by Ethiopian farmers is
generally antiquated, ranging from the hoe and other hand tools to ox-
drawn implements common in the highland plateau. Tractors and large
combines are used mostly on the relatively few commercial farms.
The Third Development Plan (1968-73) adopted a "package programme"

approach towards the modernization of peasant subsistence agriculture.
The package concentrated scarce manpower and investment resources in a
few strategic areas to implement comprehensive rural and agricultural
development schemes. The government had also adopted what are called
"minimum package programmes", which were basically extension service
schemes. These represented a less costly effort and were aimed at reducing
specific resource constraints.
Land tenure systems in Ethiopia are as diverse as the ethnic composi
tion of the country. Essentially, however, there are five broad categories
of tenure systems: communal, individual, pastoral, government and a resi
dual category known as gult.
1. Communal
In north-western Ethiopia, land is held communally by the extended
family. Theoretically, each member has a right to farm a portion of family
lands by virtue of his descent from the founding father. In practice,
insufficient land compared to the number of claimants results in numerous
disputes as to which family member has the strongest claim to a particular
parcel of land. Family lands once allocated for an individual's use are
generally held for life and inherited by both male and female heirs,
although they may not be disposed of by gift or sale without the family's
consent.
Another form of communal tenure is that of village ownership: every
person residing in a village is entitled to an equal share of the village lands,
which he receives at a periodic distribution by lot held every three to seven
years. Some of the undesirable effects of the communal system are in
security of tenure, lack of continuity of farming, fragmentation of farms
and frequent litigation of competing claims for land.
2. Individual
In the southern provinces the tenure system is characterized by indi
vidual rights in land, which take the following different forms:
(a) Private ownership or freehold, as rist or gebar, is the most preva
lent form of individual tenure. Landowners are required to pay taxes (land,
agricultural income, education and health); and they can sell, lease,
mortgage or bequeath their land.
(b) Ownership in which the primary or reversionary interest has been
vested in the church, known as semon, is the second most common form
of tenure. Revenue from the education tax and a negotiated amount in
lieu of land tax is paid to the church, and the agriculture income and health
taxes are paid to the state. Semon land can be sold, leased, mortgaged
or bequeathed.
(c) Siso, which means one-third, relates to land formerly held by the
first settlers in the south. After the conquests from the north, the govern
ment took two-thirds of the land and left one-third to the previous owner.
Only a nominal tax in kind was imposed on this land. Siso was legally abo
lished in 1966, but it still exists in practice.
(d) Mederia. Mederia is an allocation of land by the state as a sub
stitute for or supplement to salary. The land is held and worked only
as long as the grantee occupies the position or performs the function
which entitled him to the land. In some cases use is for life. In a series of
studies conducted during 1966-68, the government found the following
distribution of individual tenures: gebar or rist (73%), seinon (13%), sisa
(10%) and maderia (4%). Two-thirds of all individual holdings, including
both tenancies and owner-operated units, consist of one hectare or less
under crops; forty-two per cent have one-half hectare or less. Absentee
ownership is another feature of individual land tenure: twenty-six per cent
of all owners, controlling thirty-six per cent of the land, are absentees.
3. Pastoral
Parts of Ethiopia's arid and semi-arid land is used for grazing live
stock by pastoral groups numbering about two million. These groups have
developed a body of customary rights which have no standing in written
law. Land taxes are not imposed on pastoral lands.
4. Government
The government owns some 11.8 million hectares of arable land, part
of which is rented to concessionaires and part reserved for grants to
various groups, including patriots, the armed forces, police, civil servants
and landless or unemployed people. There are also a number of squatters
on government land.
5. Quit
Gult was the right given to a private individual to collect land taxes
from landowners at rates prescribed by law and to exercise certain admi
nistrative or quasi-governmental functions within the area. The indivi
dual would retain a share of the tax revenue and pass the remainder on to
the government. Gult rights were not normally hereditary. A proclamation
in 1966 abolished gult tenure, thereby depriving private individuals of this
source of income and power. However, during the 1966-68 land surveys
mentioned above, over 12,500 instances of gult were encountered.
C. Ethiopian land reform proposals
Over the years, the Ethiopian government has made various ad hoc
attempts at land reform: in 1928 personal service of tenants of landlords
was abolished; in 1930 an Imperial Order distributed excess land to ten

ants; and in 1955 another Imperial Order was issued for the purpose of
distributing government land to landless farmers. A more systematic
approach to land reform was initiated in 1961 when, after an abortive
coup d'etat the preceding year, the government established a special Land
Reform Committee. This was followed in 1964 by the creation of a Land
Reform Authority to implement the committee's principal recommenda
tions: a ceiling on land ownership, tenancy legislation, abolition of some
antiquated aspects of the tenure systems and an improved land tax. The
authority, which was subsequently converted into the Ministry of Land
Reform and Administration, studied the various tenure relationships exist
ing in the country and drafted several pieces of reform legislation. The
government requested the assistance of a development adviser in the pre
paration of a policy paper to be presented to Parliament in support of the
proposed reform programmes of the Ministry.
As described in the policy paper, the Ministry's objectives with res
pect to land reform were to:
1. Make land a more efficient factor of production.
2. Enable landless and unemployed persdns, tenants and owner-cul
tivators with small plots to reap the benefits of modern agricultural techno
logy.
3. Provide tenants who fulfil their obligations to their landlords with
security against arbitrary eviction.
4. Provide employment opportunities for both the over two million
new rural families that could not be absorbed at reasonable income levels
into areas of existing settlement over the next thirty years, and for a share
of the population that is presently landless or subsisting in extreme pover
ty on holdings of sub-economic size.
5. Bring into use under public auspices, for the purpose of settling
such families, sections of large privately-owned holdings that currently pro
vide only limited employment.
6. Bring about a more equitable distribution of income, with particu
lar reference to agricultural income and ownership of rural land, limiting
the area of land in which any individual or company may have a bene
ficial interest, and granting government land only to persons who require
it for their personal cultivation in order to earn a reasonable livelihood.
Reasoning that Ethiopia's principal hope for economic development
would be the widest possible diffusion of modern agricultural technology,
the Ministry nevertheless feared that in the absence of effective land reform
the adoption of new technology might actually hurt the small farmer and
result in even greater inequality of distribution of rural income. Whereas
in the past tenants and landholders respected a set of long-standing mut
ual obligations which rarely ended in evictions, the promise of large
gains through mechanization might bring about a new approach to agricul-
ture; and the rate of tenant evictions might increase as farming became
more mechanized.114 In any case, tenants remaining on the land would
have little incentive to use modern inputs since up to 50 per cent of all
gains in productivity would have to be shared with the landlord.
The policy paper further argued that the problems of rural unemploy
ment and underemployment had grown worse during the past 20 years
and, if there were to be a more equitable distribution of income,
that Ethiopia must develop forward-looking employment policy. The
alternative of investing heavily in modern capital-intensive industry and
then distributing the resulting income among the masses in the form of
expanded social services and employment in related industries was reject
ed as impractical. Instead, it was postulated that any rise in living stan
dards would come from modest increases in output within the framework
of smallholder agriculture. Under present tenure arrangements, however
many peasants would have been forced off the land and those who rema
ined would not have had adequate security of tenure to prompt them to
raise productivity.
An analysis of population growth rates suggests that an average annual
increase in the rural population of over half a million is likely, with
160,000 persons of working age seeking agricultural employment. Over
the next 30 years, not more than one-third of the increase in rural house
holds could be supported at standards of living equivalent to or better
than today's levels through the normal process of bringing unutilized
private or communal land into cultivation and intensifying the use of
already-cultivated land. Thus, of the 3.1 million projected increase in farm
families, at least 2.0 million (plus about 150,000 pastoral households)
would have to be accommodated either on government land or private
holdings.
In fact, the government does not own enough suitable, unoccupied
land to fully absorb the surplus rural population which cannot be accom
modated under existing arrangements. Of the 11.8 million hectares of
arable government-owned land, 3.4 million hectares are not available for
distribution. This includes land already committed under grant orders, land
allocated to large-scale farming, land occupied by pastoralists, squatters
and recognized tenants, land allocated to national park and wild life
preserves, and irrigable land which cannot be developed until the next
century. The remaining 8.4 million hectares would suffice, under the pre
sent system of patronage grants, for grants to either 200,000 civil ser
vants115, military personnel and police, or to 425,000 landless and unem-
114. As evidence for this position, the experience of a comprehensive "package

program" development scheme (CADU) is cited. As of 1972, some 20-25 per cent of
tenants farming the land in the 1960s have been evicted, and it is estimated that the rate
of evictions will increase to 67-75 per cent within a ten-year period.
ployed citizens. If the grant order system is not modified, most of the
land is likely to go to the former groups. Of 2.0 million hectares distri
buted by the government since World War II, for example, only 5.1 per
cent went to landless and unemployed persons, for whom the complex
process and cost of obtaining land were prohibitive.
The policy paper therefore concluded that the government should
eliminate the patronage grant system, at least for civil servants who are
covered by pension legislation and do not need the land grants for
income.115 If this were done, government land would suffice to provide
employment for a majority of the peasant households which will require
accommodation by the year 2000. The Ministry of Land Reform and
Administration drafted legislation to substantially limit the categories of
individuals entitled to ptronage grants. Patriots of World War II, their
widows and daughters would continue to receive land grants. Legal
holders of maieria would be allowed to convert a portion of their land
into freeholds, but maderia would be abolished as a tenure system. Also,
members of the armed forces or police who retire after ten years of active
service would be allocated 60-year leaseholds.
It was suggested that the remaining gap in the land required to support
the expected growth in peasant households be filled by nationalizing parts
of large private holdings. Various taxation measures were explored as
alternatives to nationalization, but they were rejected as being too difficult
to implement. Even if successful, taxation would most likely promote
large-scale commercial agriculture, which would not serve the government's
employment objectives. Thus, the policy paper argued in favour of estab
lishing ceilings on landholding; the government should acquire all land in
excess of the ceilings, compensating the owners with government bonds.
The Ministry of Land Reform and Administration drafted legislation
relating to the size of landholdings which could legally be held by private
individuals.
Land registration was also advocated as an integral part of land
reform. The present uncertainty about land ownership and the location
of boundaries, as well as the absence of legal titles to land, results in much
time-consuming and expensive litigation. Land registration, in addition
to eliminating these problems, would give the government an inventory of
land resources and data on land ownership, assist in the efficient adminis
tration and planning of agricultural development, become the basis for
controlling transactions in land such as excessive fragmentation or undue
concentration of ownership, and correct inaccuracies in the tax register.
A comprehensive bill for the registration of land titles was presented to
Parliament. It provided for adjudication, survey, demarcation and record
ing of land rights.
115. It was also pointed out that in a sample survey in five provinces only 35 percent
of the lands granted to civil servants was in agricultural use, and in only one-third of
the cases was the owner enaged on his own account.
Finally, the policy paper suggested that achievement of the govern

ment's development objectives required a number of reforms in tenancy
relationships, including the elimination of informal verbal lease agreements,
exorbitant rents and sharecropping. The Ministry of Land Reform and
Administration drafted legislation which dealt with each of these issues and
provided for a quasi-judicial administrative procedure to improve the
tenant's bargaining power vis-a-vis the landlord.
There is an extensive tenancy system in Ethiopia, primarily on the
individually-owned land. Forty-six per cent of the rural population work
on fully-rented land and an additional nine percent work on partly-owned
and partly-rented land. An examination of typical leases revealed the
following characteristics: special fees are paid to obtain leases; 90 per cent
of all leases are verbal; a very few landlords provide bullocks, seed or
fertilizer to their tenants; tenants pay one-third to one-half of their crops
as rents; many tenants are obliged to pay a tithe116 (even though legally
abolished by the government in 1956), or the land tax, or both, in addition
to the standard rental; and in the event of eviction, the landlords rarely
reimburse the tenant for any fixed improvements.
Under the new legislation drafted by the Ministry:
1. The landlord could negotiate a plan of cultivation with his tenants.
2. Either party to the lease or the Ministry of Land Reform and
Administration could demand a witten lease.
3. Tenants ceuld obtain a mortgage on the basis of the lease.
4. Tenants would receive compensation for the unexhausted value of
the property when they leave the land.
5. Tenants' financial obligations were restricted to rent plus payment
lor actual inputs of the landlord. The rent and inputs could not exceed
50 per cent of the gross crop.
6. Fixed rents could be established, but they may not exceed one-
third of the normal crop, net of the tenant's input.
7. In bad years, when production was low, there was to be an equit
able division of the output.
8. The conditions permitting evictions were specified: rent default,
damage to the property, abandonment, failure to adhere to the plan of
cultivation, conversion of land to non-agricultural use, transfer to a third
party, use of the land by the landlord's family to cultivate crops, and a
decision to convert the land to non-agricultural use or large-scale commer
cial farming. (The last condition required the approval of the Minister of
Land Reform and Administration.)
The legislation also provided for a dispute resolution mechanism in

the event of disagreements between landlord and tenant. An appointed
116. A religious tax known as asrat is collected by the state.

tenancy officer would seek agreement in the first instance; if he were

unsuccessful, the dispute would be referred to a tenancy committee for
arbitration. The committee would consist of five to seven elders (an equal
number of landlords and tenants) appointed by the Minister of Land
Reform and Administration and would be chaired by an owner-cultivator.
A tenancy tribunal consisting of one judge would hear appeals from the
tenancy committee, approve all evictions, and review' and modify agricul
tural leases. The judge could also adjust rents and postpone evictions for up
to three years beyond the two-year notice required by statute. Finally, the
tribunal judge could establish "disturbance compensation" which would
be payable by the landlord to an evicted tenant. The only appeal from
the tenancy tribunal would be to the High Court of the province.
The policy paper advised that successful implementation of the total
land reform programme (nationalization of private landholdings, reform of
landlord-tenant relations, land registration, limitations on the maximum
size of individual landholdings, and modification of the patronage grant
system) would require strong political will at the highest levels of govern
ment plus adequate governmental administrative resources to implement
the provisions or strong peasant organizations to protect the interests of
tenants against the greater power of the landlords or both. To carry out
the reforms, the Ministry of Land Reform and Administration was being
reorganized and special in-service training programmes were planned for
large numbers of new staff.
D. Culture-specific analysis of Ethiopian land reform
The proposed land reform programme, which struck at the very heart
of the basic institutional structure of Ethiopian society, raised a number of
questions. Some of the most important questions for the purposes of this
study concern: (1) the relationship between law and the socio-economic
system in Ethiopia; (2) the interaction between customary and enacted
law in Ethiopia; and (3) the importance of the legal/administrative infra
structure as implemented in Ethiopia. The proposed legislation reflected
an egalitarian political system and a concept of distributive justice which
one would expect to find in a welfare state. Could a programme, so in
conflict with the existing socio-economic system, have been enacted and,
if it had, could it have been implemented?
Ethiopia is a hierarchical subsistence economy dominated by a small
elite of religious and civil landholders who were being asked to sacrifice
their preferential position in society without any obvious quid pro quo.
Legislation reducing the holdings of the largest landlords is a direct attack
on the primary status symbol of Ethiopia—property. Further, the proposed
tenancy legislation conflicted with existing perceptions of status in that the
leader (i.e. the landlord) would lose status if he shared his authority with
an inferior. Currently leases are, for the most part, verbal and demons
trate the hierarchical nature of the landlord/tenant relationship. The new
tenancy law, however, implied an equality between the parties in the

negotiation of future leases.
Land registration would lead to the individualization of tenure in areas
which are currently communal. Allan Hoben, an anthropologist who has
worked extensively with Gojjam Amhara farmers living under a communal
system, states emphatically that the farmers in the area do not want a
change in the rules under which they compete with one another for
land.117
All of the proposed legislation was directed toward the end of trans
forming the subsistence farmer into an individual with a market orienta
tion. Besides reform legislation and the few agricultural development
projects currently underway, this would require a much greater allocation
of financial and institutional resources to the subsistence sector including
rural credit, improved seeds, fertilizers, irrigation, farm implements,
marketing arrangements and transport facilities. More important, perhaps,
is the fact that a market economy assumes a legal system based upon con
tractual arrangements and an administrative system which can enforce
them. Implicit in this system are the concepts of faith, trust and predic
tability.
Of the total land reform programme, only the tenancy legislation was
voted on in Parliament. The legislation had been approved a number of
times by the Chamber of Deputies, only to be defeated in the Senate. Yet,
the Senate was appointed by the Emperor, who had publicly supported
the legislation. Perhaps the Emperor did not actually favour the legislation
but wished to maintain the support of his increasingly modern bureau
cracy118 and, at the same time, placate the multilateral and bilateral aid
117. From a general demographic and social point of view the rist system is not
merely a way of allocating land to people. It is also a way of allocating people to avail
able land in accordance with their social and political prominence. It serves to move
people from communities which are densely populated to ones which are not; and at
the same time, it allocates to individuals with unusual political skills the lands commen
surate with their political attainments. It is thus a method of adjusting the actual
ecology of an agrarian society to the political realities of a competitive and fluid polity
without producing a large class of landless and alienated peasants. In the absence of
another mechanism for allocating land to people and people to land, the transformation
of rist to freehold—through a cadastral survey, and the registration of individual title to
land as it is currently held—would, in effect, freeze a transitory pattern of land holding
and social stratification at one moment in time. It would convert a fluid system of
individual inequalities into a permanent pattern of economic and social stratification;
and, paradoxically, in the absence of substantial economic development, it might well
lead to the creation of many landless peasants. See Hoben, "Social Antrhopology and
Development Planning—A Case Study in Ethiopian Land Reform Policy", 10 J.
Modern African Studies 561 (1972).
H8. By 1966, seventy per cent of the Ministers and fifty-eight per cent of the Vice-
Ministers had been educated abroad. See C. Clapham, Haile, Selassie's Government
88 (1969).
donors who had strongly urged land reform. Perhaps the Emperor had
limited influence over the Senators who were chosen as much to incor
porate different interest groups into the Parliament as they were to imple
ment the Emperor's wishes. By pitting the elected against the appointed
house, the Emperor broadened his appeal to the popularly supported
body. Even the defeat of the legislation may have had a positive impact,
for each time that it was debated in Parliament, more individuals were
confronted with the issue and were slowly being conditioned to recognize
that a different order of relationships was possible. Thus, over a period
of years, what began as a revolutionary change could evolve slowly into a
more incremental change.
Assuming the legislation were actually passed, however, what was the
likelihood of its being implemented? To answer this question, it is first
necessary to examine the interaction between customary and enacted law
in Ethiopia. Ethiopia is a country of diverse ethnic groups, poor
communications and transportation infrastructure, and no history of
colonial domination. Customary law—a base line along and against
which the individual organizes his life with his fellows—still dominates
the legal system. Although the place of enacted law in society has grown
since 1931 when the first Constitution was promulgated, passage of laws
in Ethiopia does not automatically, or even usually, mean that they will
be implemented.
From 1954, when a Codification Commission was established, through

1965, work was carried out by Ethiopians with the assistance of foreign
advisers to modernize the legal system.119 Six new codes (penal, civil,
commercial, maritime, criminal procedure and civil procedure) and a new
Constitution (1955) were produced. Nevertheless, a study characterized
Ethiopia as being at the "pre-engagement" stage in the application of its
new legal codes, a stage of development when enacted law is neither
communicated to nor understood by the people charged with applying and
using it.120
This conclusion was reached after a group of eight principal resear
chers and over 100 part-time assistants undertook a series of studies
over a two-year period directed at assessing the extent to which the new
codes had been received and absorbed by the country. The study found
that there was little knowledge or application of the codes, even in the
more modern urban areas of Ethiopia, although some ten to thirteen years
had elapsed since they had been enacted. Several hypotheses were set
forth concerning what factors might have been hindering the penetration
119. See e.g., Singer, "A Traditional Legal Institution in a Modern Legal Setting: The
Atbia Dagnia", 18 UCLA L. Rev. 308 (1973); and, "The Ethiopian Civil Code and the
Recognition of Customary Law", 9 Houston L. Rev. 460 (1970).
120. See Beckstron, "Handicaps of Legal-Social Engineering in a Developing
Nation", 22 Am J. Comp. L. 697 (1974).
of the enacted laws. These factors included: a deeply ingrained, traditional

dispute settlement mechanism divorced from the official system; the absence
of a well-trained judiciary; the absence of a well-trained, numerous, and
geographically-dispersed legal profession; the absence of a well-developed
administrative structure; a low literacy rate and low general formal
educational level among the population; and the absence of a well-deve
loped communications system. The study concluded:»21
What we can now tell legal-social engineers is that problems of

getting the law to engage with the population so as to be in a
position to begin to have its desired effect on the social fabric can
be acute when the law is ambitious and key resources in the
society are not well developed. . . ,
In addition to the comprehensive legal codes referred to above, there
are many other ambitious laws which have never reached the "engagement"
stage in Ethiopia. For example, in 1928 personal service on the part of
tenants was legally abolished, but continues, defacto, to the present time.
Excess government lands which were to be distributed to the tenants in 1930
never reached the intended beneficiaries. In 1955 there was a decree for
distribution to landless farmers, but only a few fortunate individuals receiv
ed any land. Asrat, the tithe tax, was legally abolished in the mid-1960s,
but tenants continue to pay this to landlords; and, extensive gult holdings
still exist although gult rights were abolished in 1966.
There are many reasons why the Ethiopians have clung to their old
ways rather than readily embracing the new ones. The most obvious is a
strong desire for continuity, which seems to be especially important in a
traditional society. Second, other sub-cultures may simply prefer their
own institutions to the Amhara-dominated legal system. Third, customary
law utilizes individuals/institutions which are known personally to the
parties involved in contrast to the unfamiliar people and institutions
associated with the new laws.
In 1947 the government attempted some integration of customary and
official law by establishing a new system of local judges {Atbia Dagnia).^22
This was part of an overall scheme aimed at creating a unified society in
which all persons would eventually assume Amhara social ideologies.
According to this plan: 123
....Transition would be made from the traditional system in its
121. Id. at 712.

122. See Singer, "A Traditional Legal Institution in a Modern Legal Setting: The
Atbia Dagnia," 18 UCLA L. Rev. 308 (1970); and "The Ethiopian Civil Code and the
Recognition of Customary Law", 9 Houston L. Rev. 460 (1970).
123. Singer, "A Traditional Legal Institution in a Modern Legal Setting: The Atbia
Dagnia," 18 UCLA L. Rtv. 308, 313 (1970).
pure form to a hybrid and then to a pure form of the imposed

system. Change would be carried out through the non-legal
devices [education, communications, mass media, etc.] which would
be used to speed integration. Power would shift from the local to
the central authorities as matters formerly of tribal concern
became increasingly universalistic.
In both the Amhara and non-Amhara areas, however, the traditional
dispute resolution fuctions never shifted, and the attempted reallocation
of power, as well as the institutionalization of a new procedure, were
never successfully implemented. In the non-Amhara areas, disputes
continued to be referred to persons within the respective social systems
who could produce a settlement acceptable to both parties.124 The
Swedish government investigated the effectiveness of the Atbia Dagnia
within three Amhara-settled areas and found that of 40 petitions submitted
during the period of the study, only five came t o a final adjudication.
Twenty-four were referred elsewhere (usually to the customary dispute
resolution mechanism) and eleven received no response from the defendant.
The study concluded:125
The basic shortcoming of the program was the attempt to insti
tutionalize legal values without first investigating the readiness of
the various segments of Ethiopian society to accept a shift in the
power structure.
How can existing customary norms and procedures be made to yield
to those new values and institutions which are implicitly or explicitly
provided for in the proposed land reform legislation? One approach is by
a concerted effort to build new structures utilizing wherever possible the
forms of existing structures. In the 1970 draft of the tenancy reform
law, the tenancy committee (which is to resolve disputes which could not
be handled by the tenancy officer) was undefined as to membership. In
conversations with concerned officials, the author pointed out that if
membership were left undefined most probably landlords and those with
some legal training would be appointed to the tenancy committee. In
the 1971 draft, however, both tenants and landlords were to be equally
represented, and the government-appointed tenancy officer would chair
the committee. In the 1972 draft, the committee was to consist of five to
seven elders, appointed by the Minister of Land Reform and Adminis
tration, and would include an equal number of tenants and landlords,
with an owner-cultivator chairman. Thus, over a three-year period, the
government devised a local dispute resolution institution embodying the
same kinds of individuals who are customarily called upon to resolve such
disputes.
124. Id. at 333.
125. Ibid.
This brief study of problems in Ethiopian land reform is illustrative

of some of the many areas where a mutual exchange between development
practitioners and those knowledgeable in the customs and values of the
society in question could be fruitful.
V Conclusion
Both the ends and the means of development are human beings.
Consciously-directed change—the business of the development practitioner
and the stuff of which all national plans are made—is, in the end, an
effort to alter the fundamental patterns of human interaction. Man's
relationships with his fellow men and his physical surroundings are
reshaped to conform to some perception of an ideal, or at least a superior
order. "Law", in the very broad sense that the term has been used in this
article, reflects those patterns of human interaction in a society at any
given time. It mirrors how people relate to one another, their values,
what they consider worth preserving in life, and how they define their own
security. "Living" or customary law offers insights into both the most
effective means for and the limits on inducing change or establishing new
standards of behaviour.
Of course, all of the disciplines which have engaged in development ana
lysis—principally economics, political science, and sociology—have been
concerned with human interaction, but each from a distinctly disciplinary
perspective. Law and the legal system, however, are a composite product
of the economic, political and social systems prevailing in a society.
Furthermore, law is an integrated derivative of the economic, political
and social systems. As a derivative system, law is not autonomous;
therefore, legal variables cannot be isolated for analytical purposes, as
can economic phenomena, for example. In other words, law is not a
discipline comparable to economics or political science. Law's importance
stems rather from the fact that in both its formulation and application
(or non-application) it provides a synthesis of constituent economic,
political and social variables. Thus, the proposal that the development
practitioner examine the relationship between law and the development
process implies that development problems must be approached in an
multi-disciplinary manner.
This article has approached law and development analysis from three
standpoints:
(1) the linkage between law and the socio-economic system;
(2) the interaction between customary and enacted law; and
(3) the role of the legal/administrative infrastructure in the
implementation of development programmes.
These three standpoints, however, are simply different approaches to the
same issue. For example, enacted law often conflicts with customary law
because it presupposes a different socio-economic system than that which

actually exists. Similarly, the legal/administrative infrastructure is
designed to uphold the existing system and in that sense may be inadequate
for implementing a new law based on an entirely different system. Hence,
the characterization of law as "traditional" or "modern" has little real
meaning. Rules and institutions are right or wrong, effective or in
effective, only insofar as they support the economy, the polity, and the
society. It is this crucial point which has eluded the instrumentalists and
caused their frustration and disillusionment.
In place of instrumentalism—the pre-definition of development goals
or means or both—this article proposed a fresh look at the culture-
specific approach to law and development studies in which both goals
and means are defined by the society in question. Only after a careful
empirical study of the society can goals be identified and the complex
social variables be disaggregated to ascertain the best means of realizing
those goals. In some cases this may primarily take the form of instru
mental rulemaking; in other cases reliance will have to be placed on
persuasion, education and economic or other inducements to promote
incremental changes in customary law. The short study of Ethiopian land
reform was offered as one example of an application of the culture-
specific approach.
Obviously this is only a modest beginning, and much work remains
to be done. But surely an effort at resuscitating law and development
studies is a more worthwhile endeavour than a resigned obituary. For the
sake of the many less-developed countries if not the world as a whole, it
is hoped that the grave robbers will agree.

Law and Social Change

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LAW AND SOCIAL CHANGE

1. The Premature Burial (1844).

The communications gap

An understanding of the nature and role of law is of fundamental

1. Law does not exist in developing countries or is very "underdeve­

To most non-lawyers, the word "law" signifies a collection of rules.21

At the broadest level, law comprises a series of norms which a given

actions will be drawn . . . the term 'complementary expectations'

Taking Fuller's customary law a step further, Sally Falk Moore in

To understand these rules—legal, non-legal, or illegal—it is

At another point she says:

The social reality is a peculiar mix of action congruent with

30. Law as Process, supra note 11 at 17.

Customary law as used here is thus by no means limited to primitive

portion. In a traditional agricultural subsistence economy, for example,

Law and social change

At an early stage one interested in law and change should clearly

is continuous. This day-to-day incremental change is a subtle, but dynamic,

This is commonly referred to as a "top-down" or "instrumentalist"

2. Customary and enacted law interactions

A proposed change, embodied in a law or new institution, may be

exist at all. As a result, poorly conceived, controversial or simply

Even assuming that legislation is not contradicted by customary law,

Accordingly, a better understanding of the nature of law, the way it

II Contemporary Law and Development Models

Before analyzing particular approaches to the linkages between law

models and to attempt an actual or hypothetical application of the models

(A) the "Core Conception—Liberal Legalism" school;69

69. The "Core Conception-Liberal Legalism" school has two branches—the

A. The process spectrum and varying approaches to law and development

As discussed above, the classification scheme used here for categorizing

rather prescriptions for change."

As discussed above, even the "enlightened" Trubek and Galanter

Seidman, by contrast, purports to be relatively "value-free" or purports

schools begin by defining the problems of a society (although Trubek and

deny that people's behaviour is fashioned, in part, by all of the existing

instrumentalist and the culture-specific approach, embodies a natural law

D. The instrumentalist critique of the culture-specific school

The fundamental difficulty in completely rejecting the instrumentalist

there is little or nothing the developed countries can do to speed or ease

Ill A Culture-Specific Model for Law and Development Studies

The previous section examined the contemporary approaches to law and

The "receptivity-to-change" spectrum

Saying that law is "culturally-specific" implies, in effect, that law is

100. See e.g., C M . Arensberg and A H . Niehoff, Introducing Social Change: A

a top-down approach is effective) whereas in other areas law can only

positive course of action with respect to change and development. The

108. As previously noted, this can be a difficult problem in heterogenous societies

a point where each parcel does lend itself to an instrumental approach.1U

IV Ethiopian Land Reform—The Culture-Specific Approach in Practice

As in most non-industrial countries, land tenure relations constitute

tunities would require a comprehensive land reform programme. Such a

are Muslim, also command important positions in the government, armed

Agriculture is the most important productive sector in Ethiopia,

The Third Development Plan (1968-73) adopted a "package programme"

was abolished; in 1930 an Imperial Order distributed excess land to ten­

114. As evidence for this position, the experience of a comprehensive "package

Finally, the policy paper suggested that achievement of the govern­

The legislation also provided for a dispute resolution mechanism in

116. A religious tax known as asrat is collected by the state.

tenancy officer would seek agreement in the first instance; if he were

tenancy law, however, implied an equality between the parties in the

1. Law does not exist in developing countries or is very "underdeve

was abolished; in 1930 an Imperial Order distributed excess land to ten

Finally, the policy paper suggested that achievement of the govern