A Delicate Balance: Building Complementary Customary and State Legal Systems

Abstract

Development assistance programs in the law and justice sector have traditionally focused on reforming state legal institutions to the exclusion of customary legal systems. This is often because of host country pressure to achieve quick results, limited familiarity of foreign lawyers with the concepts of customary law, and donor reluctance to support customs that substantively or procedurally violate human rights norms. Yet, rule of law practitioners deployed to developing and post-conflict countries are increasingly confronted with the reality that customary legal systems are the preferred and, for the foreseeable future, the only viable means of dispute resolution available to the vast majority of people. Given the empirical evidence on the high level of recourse to customary law, this paper argues that customary legal systems are integral to development, and that both customary and state legal systems have a role to play in a functional justice sector. However, there is little systematic guidance for practitioners in the field, many of whom have had no previous exposure to customary law, on exactly what options are available to engage both systems and the issues that different types of interventions raise. This paper sets out a framework of policy options for programs that seek to harness the respective strengths of customary and state legal systems, giving examples of initiatives that have attempted to do this. The paper concludes by proposing good practices for rule of law practitioners to follow in supporting customary and state legal systems that co-exist in a manner which advances peace, economic growth and sustainable development.