'Tradition first': inheritance conflicts and normative pluralism in Benin

On the 14th of June 2004, Benin ratified its brand new Code des Personnes et de la Famille (Code on Persons and Family), unifying its previously dual legal system while adapting to the requirements of international human rights law. But does this mean that what the Beninese call “tradition” has disappeared? Inheritance conflicts in Cotonou show that while state law is now unique, people still mobilize different set of norms to claim their share of the de cujus’ patrimony.
When it comes to inheritance cases, under the Fon customary laws, land rights were originally transmitted trough agnatic descent. Paternal uncles and elders made decisions while women were meant to get married outside the group. Today, the Code on Persons and Family grants all children equal rights to their parent’s inheritance, excluding uncles and other family members from the process but also entitling girls to their share of their father’s land. Surviving wives fully inherit from a quarter of their husband’s patrimony rather than just being granted the use of it. Legitimate and illegitimate children are included into the single category of “natural children” and all entitled to the same rights and obligations. Most importantly, customs are made redundant. Ethnographic data however shows that what the Beninese call “customs” or “tradition” intervene before, during and after judicial settlement of a conflict. They intervene in family dispute and discussions within the private sphere, causing people to delay legal proceedings; they are often used as arguments or implied as “common sense” during hearings; they are the excuse for not executing the judge’s decision.
For the purpose of this paper, I will focus on the various normative repertoires put forward in the justice world itself. I will analyze the different arguments underlined by the parties and their councils during hearings and on the rationale behind them. Is it truly about individualization, equality and family values or just about winning the debate – and the money? I will use interviews to analyse judicial officials’ and families’ discourses on inheritance conflicts, “tradition” and “modern law”. Finally, when land rights are still ruled by both “customary” and “modern” law, inheritance cases almost inevitably include a “traditional” dimension when their object is a plot with no Tire Foncier. Within that context, where do judges draw the line between the “modern” and “traditional” aspects of those cases? Just like a lot of African societies, Benin seems to be “in transition”. State law might be unique, but the norms mentioned in court definitely are not.