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IOWA LAW REVIEW
nation as a whole, with a greater readiness and desire to accept new
ideas, and the application of the codes by judges capable of doing so. 230
In the interim, of course, there will be conflicts. Some judges wil
try to apply the codes while others will not. A case decided by a lower
court judge on the basis of customary law may be decided by the
appellate court on the basis of the codes, of which up to that time the
litigants may have been unaware. When the codes are applied in
such a case, the result may "shock" the parties and cause them to
resent the decision. This is unavoidable when society is changing, and
this was foreseen when the codes were adopted. All that can be said
is that this period will end at some time. Once the people are aware
of the new codes and their traditional way of life has been changed
somewhat by economic progress, they will conform their conduct to
the codes. The transition will be difficult, but this is inevitable in a
developing society.
There are other outlets, however, by which the impact of the new
law can be cushioned during the transitional period. In the first place,
the codes will only be applied in cases coming before the courts. It has
been traditional to submit disputes to elders and other respected persons
in the community. The people were frequently suspicious of the
government courts where such courts existed. These courts represented
governmental authority, and the social mores of the particular
area may have demanded that the people avoid them. The elders
would try to persuade the parties to compromise their dispute, but
failing compromise, they would render a decision. The basis of their
decision would be the customary rules prevailing in the community.
This practice will continue, and a decision by the elders would constitute
an "arbitration," which would be legally binding on the parties.
231 Indeed, to the extent that litigants do resort to the courts and
are dissatisfied with the decisions because not based on the customary
rules, they will return to the customary mode of adjudication. Parenthetically,
the increasing recourse to arbitration may be noted in
developed countries because of dissatisfaction with the results of
judicial litigation. The availability of customary adjudication then will
lessen the impact of the application of the new law. As the people become
more "advanced," they are more likely to want to have their
cases decided by the courts under the new law, and reliance on
customary adjudication will decrease. 232
www.abyssinialaw.com
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230 As to the applicability of the numerous regulatory provisions, see note 117
supra.
231 See Krzeczunowicz, supra note 36, at 65.
232 It is interesting to note that in countries with highly-developed legal systems
the trend is toward removing disputes from the courts and submitting them to
arbitration or giving jurisdiction to administrative tribunals.