Traditional Judges and Litigants in the Facing Positive Law Justice in Cameroon: Recrimination, Backlash and Expectations

Abstract

This article is in line with the problem of the conflicts between tradition and modernity on the legal-judicial level. It is based on the legal functionalist theory, which advocates, among other things, the rejection of the legal-judicial system based on positive law and the dependence of the customary system on institutional power. It answers the question of why and how indigenous litigants challenge the positive law embodied in institutional justice and questions possible reconciliations between this law and custom through paradigmatic models of judicial pluralism. This issue was identified through oral information gathered from the field, legal texts, and written sources from articles, books, reports, and dissertations. The results of the study indicate that customary laws, customary judges, and customary courts are muzzled at all levels by the principles of institutional justice based on positive law. Dissatisfied with this situation, there is a proliferation of dispute resolution offices that make use of local customs while escaping state control. The reconciliation of custom and positive law, according to the litigants and the traditional judges, requires the valorization of customary judges, the unification of customary courts with those of the law, and the confrontation of the two sources of law before any verdict.