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Working Paper No.41
Access to Justice: The Palestinian Legal System and the
Fragmentation of Coercive Power
Tobias Kelly
Development Research Centre, LSE
March 2004
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.
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