Working Paper No.41. Access to Justice: The Palestinian Legal System and the Fragmentation of Coercive Power

Abstract

In recent years there has been an increased interest amongst development practitioners in the potential role of law in situations of violent conflict. The Middle East has increasingly become the focus of this concern. In particular, it has been claimed that the Palestinian National Authority (PNA) has failed to provide adequate access to the law for many Palestinians, and has instead ruled through patronage and violence. In this context the PNA has been the site of repeated calls for legal reform. Legal reform is often treated as a technical question of legal procedure or as an issue of the cultural appropriateness of legal regimes. This paper takes a third approach, which stresses the political and normative aspect of legal processes. It argues that, in order to understand the obstacles to positive legal development in situations of political transition, it is necessary to discover the ways in which legal practices are understood, used and abandoned in particular contexts. In a context where law has no absolute moral value, but is attractive for the substantive claims that can be made through it, people are willing to use whatever resources are available to them in order to enforce the tangible benefits of legal claims. This opens up the law for political manipulation, and encourages what might be called 'legal patrimonialism', whereby legal entitlements are distributed according to political resources, rather than legal procedures. The paper concludes by arguing that in the context of the West Bank the promotion of effective legal processes should not be seen as a short cut to a stable political regime. Accountable legal processes require centralised, strong and stable coercive support, based in a measure of organisational cohesion and territorial sovereignty