Non-state Justice Systems Research Articles

Promoting Law Beyond the State

Abstracts In countries receiving foreign aid, non-state justice systems rooted in custom or religion generally handle most legal disputes. This dramatically influences the prospects of international efforts to promote the rule of law, yet scholars have paid little attention to foreign policy toward non-state justice. This paper explores how the nine largest rule-of-law-assistance providers engaged non-state justice between 2008 and 2018, illuminating the theory behind, and the reality of, donor-state policy. It proposes a new classificatory typology of donor approaches to non-state justice detailing five strategies (denial, acknowledgment, acceptance, transformation, and rejection) and four goals (judicial reform, symbolic recognition, state-building, and counterinsurgency). It then explores how the nine largest rule-of-law-assistance donor states addressed non-state justice through a structured comparison of policy documents as well as case studies of the five donors with the most comprehensive approaches. Donors strongly favored risk-averse approaches, even when this made success unlikely. Certain policy goals—such as state-building or counterinsurgency—sometimes prompted riskier choices, but only with a compelling justification and a reasonable prospect of success. Overall, major rule-of-law donors displayed risk-averse, superficial policy, minimal stakeholder engagement, a failure to grapple with the nuances of legal pluralism, and a lack of evidence to support existing policies.

Legal Pluralism in Theory and Practice

Legal pluralism has vast policy and governance implications. In developing countries, for instance, non-state justice systems often handle most disputes and retain substantial autonomy and authority. Legal pluralism's importance, however, is rarely recognized and dramatically under theorized. This article advances scholarly understanding of legal pluralism both theoretically and empirically. It proposes a new typological framework for conceptualizing legal pluralism through four distinct archetypes – combative, competitive, cooperative, and complementary – to help clarify the range of relationships between state and non-state actors. It posits five main strategies used by domestic and international actors in attempts to influence the relationship between state and non-state justice systems: bridging, harmonization, incorporation, subsidization, and repression. As post-conflict situations are fluid and can feature a wide range of relationships between state and non-state actors, they are particularly instructive for showing how legal pluralism archetypes can be shifted over time. Case studies from Timor-Leste and Afghanistan highlight that selecting an appropriate policy is vital for achieving sustainable positive outcomes. Strategies that rely on large scale spending or even the use of substantial military force in isolation are unlikely to be successful. The most promising approaches are culturally intelligible and constructively engage non-state justice networks of authority and legitimacy to collectively advance the judicial state-building process. While the case studies focus on post-conflict states, the theory presented can help understand and improve efforts to promote the rule of law as well as good governance and development more broadly in all legally pluralist settings.

Legal Pluralism and Women's Rights After Conflict: The Role of CEDAW

Protecting and promoting women’s rights is an immense challenge after conflict, especially when the capacity of the state’s legal system is limited and non-state justice systems handle most disputes. However, legal pluralism’s implications for gender equality remain under-theorized as is CEDAW’s potential to improve women’s rights in these settings. The article offers a theoretical framework to help understand the varying relationships between state and non-state justice. It also proposes strategies for interacting with different types of legal pluralisms that will allow the CEDAW Committee to more effectively promote gender equality in legally pluralistic, post-conflict states as is illuminated in cases studies from Afghanistan and Timor-Leste.

Legal Pluralism and International Development Agencies: State Building or Legal Reform?

This paper welcomes the interest that International Development Agencies (IDAs) have recently shown in legal pluralism and, more specifically, on Non-State Justice Systems (NSJS). Its objective is to remind development practitioners that NSJS are complex institutions that should be approached with great caution. Although formally NSJS are not part of the official state apparatus, they are not entirely outside the prevailing framework of governance. As a consequence, attempts to engage NSJS inevitably risks disturbing finely tuned governance arrangements which are not always easy to uncover or conceptualise using orthodox notions drawn from modern legal, political or economic theory. The materials discussed in this paper, drawn from Latin America and Africa, suggest that any successful engagement with NSJS requires a deep understanding of both local state structures and political processes. It also requires an in-depth understanding of the state and community within which NSJS operate. Indeed, as this paper shows, successful engagement should be seen as part of a continuing process of state building. Unless IDAs are willing to take a wider and more political approach to their involvement with NSJS, they will not achieve meaningful progress in rule of law and governance projects.

Legal Pluralism and International Development Agencies: State Building or Legal Reform

This paper welcomes the interest that International Development Agencies (IDAs) have recently shown in legal pluralism and, more specifically, on Non-State Justice Systems (NSJS). Its objective is to remind development practitioners that NSJS are complex institutions that should be approached with great caution. Although formally NSJS are not part of the official state apparatus, they are not entirely outside the prevailing framework of governance. As a consequence, attempts to engage NSJS inevitably risks disturbing finely tuned governance arrangements which are not always easy to uncover or conceptualise using orthodox notions drawn from modern legal, political or economic theory. The materials discussed in this paper, drawn from Latin America and Africa, suggest that any successful engagement with NSJS requires a deep understanding of both local state structures and political processes. It also requires an in-depth understanding of the state and community within which NSJS operate. Indeed, as this paper shows, successful engagement should be seen as part of a continuing process of state building. Unless IDAs are willing to take a wider and more political approach to their involvement with NSJS, they will not achieve meaningful progress in rule of law and governance projects.

Human Rights and Southern Realities

The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time international human rights ideas and principles continue to have difficulty in manifesting their relevance in the daily lives of those who are geographically and culturally distant from international institutions Two new books - William Twining’s Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im, Yash Ghai, Upendra Baxi, and Helen Stacy’s Human Rights for the 21st Century - address aspects of this paradox and lay the foundations for exciting changes in the international human rights regime to facilitate greater human rights permeation and legitimacy for actors globally in the 21st century. In this Essay, I provide a critical account of some important remaining gaps in the literature on international human rights theory and practice. I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the movement and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of the subjects of international human rights law and particularly those actually involved in human rights violations cases in the global South. What are victims’ and legal actors’ conceptions and expectations of human rights and their agendas and experiences in processing their cases? What factors affect their attitudes and behavior in this context? Such knowledge is critical in order to obtain a comprehensive picture of the workings of human rights on the ground. It is also key to enable greater comprehension of local, Southern actors’ needs, epistemologies and micro-realities. As such, bottom-up perspectives from local actors must inform macro-level scholarly conversations on human rights as well as policies aimed at improving respect for human rights at grassroots levels. I provide some such data from a forthcoming book, grounded in interpretive theory and based on the perspectives of legal and lay actors involved in the processing of human rights violation cases of violence against women in India. Actors’ discourses contextualize some of the issues set out in both volumes. The Essay further links actors’ understandings and objectives to norm diffusion theory in the international relations literature and to vernacularization theory in the law and anthropology literature, which like both reviewed books engage the issue of the permeation of human rights standards to grassroots levels. The Essay additionally argues that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework. This framework must be grounded not only in the perspectives of Southern actors, but must simultaneously imbed their epistemologies within the realities of human rights case processing in the legally pluralistic global South. This involves not only formal courts but also informal justice or quasi-legal non-State justice systems processing human rights cases. Drawing on insights from both books, I conclude with a call for more research into Southern actors’ human rights perspectives, including interpretive accounts of their contextual realities. Such knowledge is critical in order to innovatively engage the controversies in international human rights theory and practice and to assist human rights organizations and advocates to become more relevant to the poor and the oppressed. As such, they will be better able to effect realizable change for the subjects of human rights in the global South.

The Rule of Law and the UN Peacebuilding Commission: a social development approach1

There is a danger that the Rule of Law Assistance Unit of the United Nations Peacebuilding Commission will employ the same dominant but problematic paradigm that the international development community has pursued across the globe. This top-down, state-centred paradigm, sometimes known as ‘rule of law orthodoxy’, stands in contrast to an alternative set of strategies: legal empowerment. Legal empowerment involves the use of legal services, legal capacity-building and legal reform by and for disadvantaged populations, often in combination with other development activities, to increase their freedom, improve governance and alleviate poverty. It is typically carried out by domestic and international non-governmental organisations (NGOs), but also by governments and official aid agencies. This alternative approach focuses directly on the disadvantaged and integration with other development activities, which means it often operates under the de facto rubric of social development. Legal empowerment strategies vary among countries and NGOs. But their impact includes reforming gender-biased, non-state justice systems in Bangladesh; ameliorating the legal system's corruption in post-conflict Sierra Leone; keeping the human rights flame burning in post-conflict Cambodia; advancing natural resources protection and indigenous peoples' rights in Ecuador; and strengthening agrarian reform in the Philippines. Addressing such priorities can help alleviate poverty, ameliorate conflict and prevent chaos or repression from dominating the disadvantaged, particularly in conflict or post-conflict societies.

A Typology of Relationships between State and Non-State Justice Systems

The literature on non-state justice in more than 20 states is surveyed to provide an analysis of the range of possible relationships between state and non-state justice systems. The following models are considered with respect to their advantages and disadvantages, and the circumstances in which they should be considered:Repression of a non-state justice system by the state system.Formal independence between the systems but tacit acceptance by the state of a non-state justice system.No formal recognition but active encouragement of a non-state justice system by the state.Limited formal recognition by the state of the exercise of jurisdiction by a non-state justice system.Formal recognition of exclusive jurisdiction in a defined area.Formal recognition and the giving of state coercive powers to a non-state justice system.Complete incorporation of the non-state justice system by the state.It is concluded that in the majority of instances surveyed relationships between state and non-state justice systems are not mutually supportive, and that even the more ‘successful’ examples have problems. These findings suggest that for many jurisdictions what is required is reform of the relationship between the state and non-state justice system(s) to maximise the chances of the systems cooperating with each other, performing the tasks for which they are best suited to their fullest potential, and covering each others’ weaknesses with their own strengths.