Ideas and Institutional Stability: Dispute Settlement in Ghana

By Camille Steens

Much of the literature on justice in post-colonial societies assumes that the majority of the population of these societies prefers traditional ‘informal’ customary justice institutions. The case study of Ghana however shows a different tendency. In Ghana, land disputes can be adjudicated through different institutions: informal or family tribunals, chiefs’ courts, quasi-legal state agencies and the formal state courts. Surprisingly perhaps, the state courts are overworked by the popular demand for them, while there is popular resistance to consider out-of-court dispute settlement. State court judges are respected and the kind of justice provided by these institutions is seen as appropriate and fair.

This is interesting to consider within the framework of thinking about ideas in institutional change, for before the British rule the traditional informal family courts were the only form of dispute settlement. The arrival of the British brought the system of state courts and emphasized the value of formal state courts versus informal dispute settlement. In order words, the British colonialists in Ghana created a “convention”: a shared idea that coordinates agents’ expectations, as defined by Mark Blythe (2002). Such a convention, Blythe argues, is a function of the ideas that have been used to “dismantle and replace the previous institutional order.” The British colonialists changed the formal institution available for dispute settlement because they had the idea that such a formal system with state courts was the best way to create an authoritative and enforceable judicial system. Blythe argues that once new institutions are constructed out of new ideas, these ideas “underpin” conventions and “make institutional stability possible.” 

When the British left Ghana the institutional order that they implemented remained the preferred route for dispute settlement among the Ghanaian population. This shows that the new institutions constructed through an ideal of a formalized judicial system by the British structured Ghanaians’ expectations about the future by creating the convention of preferred authoritative and enforceable settlements by the state.

A Red Record: Lynching as a Competing Informal Institution

By Camille Steens

After the emancipation of slaves in 1865 in the United States’ South, white people that had previously had “unlimited power” over their slaves and could subject them to “any and all kinds of physical punishment” in order to force them into labor, saw their “white supremacy” threatened. Therefore, a system of “anarchy and outlawry” emerged as described by Ida B. Wells Barnett in her pamphlet A Red Record. Lynching became a practice that was often employed to punish black people suspected of a crime without granting them a judicial trial. Lynchings are open, public murders that are carried out by a mob.

Robert Gibson describes this practice as emerging from the Federal Government’s “laissez-faire” policy in regard to black people in the South. This coupled with the idea that lynching emerged as a way to “compensate” the loss of white supremacy seems to reflect a concept that Helmke and Levitsky (2004) described as a “competing informal institution”. This is an informal institution that “coexists with ineffective formal institutions”. Because formal rules and procedures are not systematically enforced, actors can ignore them. Because actors ignore the formal rule, the competing informal institution creates a divergent outcome from the one intended by the formal institution. In the case of lynching, the formal institution is that all American citizens have equal rights, yet this informal institution creates unequal rights for black citizens.

The case of lynching is an example of a case in which an informal institution emerges out of an ineffective formal institution and in which this informal institution competes with the formal institution.

To Smoke or Not to Smoke on the LUC Campus

By Camille Steens

Mahoney and Thelen address the challenges of explaining change in institutions. If the idea of persistence is virtually built into the definition of an institution, they challenge us to think, then how can it change? Well, the authors of Explaining Institutional Change provide us with an intriguing answer. They argue that institutions instead of being completely self-perpetuating are subject to varying interpretations and levels of enforcement.

According to Thelen and Mahoney power is the driving force for change. Institutions can create certain power-distributions, some rules or the way they are enforced or applied benefit some and disadvantage others. Let us turn to a practical example to illustrate this idea.

An example from our own University Campus is the no smoking in the building rule. The Student Handbook clearly states, “smoking in any indoor location including your room and common room is not allowed. From the start of my time in the building however, I have smelled cigarette smoke all across the residential areas, especially during social events in the common rooms. Clearly, this is an example of a rule that is not enforced and therefore does not have its intended effect. Instead, an informal rule came about that smoking was allowed in all the residential areas.

However, slowly more voices started protesting against this informal rule. People who have a problem with cigarette smoke felt severely limited in their freedom to go to social events in the common rooms. As more and more people complained about the non-enforcement of the no smoking policy, it became clear that the informal rule had to change. A struggle over the meaning, application and enforcement of this rule ensued. Smokers felt that they were severely limited in their freedom to smoke in their own room. Therefore smokers did not comply with the rule. This created a gap between the rule and its interpretation and enforcement.

Consequently, the institution had to be changed to make it effective again.

The official rule itself is stable, in order to change the rules of the building and in the student handbook, many parties have to officially agree. However, the enforcement can be changed.  At LUC, in order to create a rule that is closer to the desires of both the smokers and the non-smokers, enforcement now only happens in the common rooms, smoking in the private rooms of students is still, unofficially, allowed.

Therefore, at LUC institutional change took place in the ‘gap’ between the rule and its interpretation. All this happened because compliance with the institution changed over time.