Non-State Justice Institutions and the Law

Decision-Making at the Interface of Tradition, Religion and the State

M. Kötter, T. Röder, F. Schuppert, R. Wolfrum, M. Kötter, T. Röder, F. Schuppert, R. Wolfrum

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781137403278
• eBook ISBN: 9781137403285
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Law
• Index: Politics & International Relations

This book focuses on decision-making by non-state justice institutions at the interface of traditional, religious, and state laws. The authors discuss the implications of non-state justice for the rule of law, presenting case studies on traditional councils and courts in Pakistan, South Sudan, Ethiopia, Bolivia and South Africa.

1

Introduction: A Bifurcated Theory of Law in Hybrid Societies

Brian Z. Tamanaha

1. The recent turn to non-state justice institutions

In recent years, development organizations have finally begun paying greater attention to non-state or informal justice systems. This shift should have occurred long ago. Countries with non-state justice systems in their midst have grappled with their implications for many years, and legal anthropologists and sociologists have been studying and writing about these systems for decades. But development organizations have mostly ignored them, focusing their activities instead on state legal systems. Now, non-state justice systems are taking on primary importance for development agencies and policy-makers.

1.1. Urgent geo-political events

Two main factors have contributed to this enhanced attention. The first factor relates to global geo-political events. The US-led invasions into Iraq and Afghanistan altered or destroyed existing institutions of legal and social ordering. The military forces could not depart these countries until stable institutions that would prevent a slide into social chaos were in place. It became imperative to find or create institutions that would maintain order and resolve disputes, but this proved to be highly problematic.

General Stanley A. McChrystal, the commander of coalition forces in Afghanistan, gave a speech in 2009 recognizing that an essential element of defeating the Taliban insurgency is providing people with access to a fair system of dispute resolution (Dempsey and Coburn 2010). However, the Afghan state legal system was weak, dysfunctional, plagued by corruption, stained by a history of despotic rule, distrusted by the people and had very little presence in rural areas where most people live (Barfield et al. 2006). It was quickly realized that building the state legal system to meet the needs of the populace was an immensely difficult project that would take decades to complete.

The obvious alternative was to turn to existing non-state institutions. The United States Institute of Peace (USIP) issued a publication in 2010 advocating this approach:

[T]he majority of civil and criminal disputes in Afghanistan are resolved locally through traditional means, including tribal and community councils that have operated in local communities for centuries. These councils (often called shuras or jirgas) generally consist of community elders and other respected individuals sitting together to reach equitable resolutions of disputes and to reconcile the disputants, their families and the community as a whole.

(Dempsey and Coburn 2010: 2)

Traditional justice mechanisms are familiar to the population and are less costly and more accessible than state courts. Decisions made by local shuras and jirgas are generally consensual, and reach a final resolution much faster than state courts. The focus is on making the parties whole through equitable outcomes rather than adversarial courtroom proceedings that have winners and losers. Traditional justice resolutions are also more likely to obtain compliance and enforcement because respected elders have authority within the community and disregarding their decisions can disrupt social harmony. Support for non-state justice systems, for these reasons, became an essential element of US policy in Afghanistan (Dempsey and Coburn 2010).

1.2. The failure of law and development efforts

The second factor driving the recent turn to non-state justice institutions is the general recognition that little improvement has resulted from over a billion dollars spent on developing state legal institutions in the past two decades by law and development organizations (Tamanaha 2011b).

Law and development work is carried out by major international and national institutions, public and private, prominently including the World Bank, the Ford Foundation, the Carnegie Endowment for International Peace, the American Bar Association, the United Nations Development Program (UNDP), the US Agency for International Development (USAID), the Inter-American Development Bank, the European Bank for Reconstruction and Development, the UK’s Department for International Development, the Asian Development Bank, the Japan International Cooperation Agency and many more.

By most accounts, the actual improvements in law realized from these efforts have been meagre. Thomas Carothers, director of the rule-of-law project for the Carnegie Foundation, offers this assessment:

The effects of this burgeoning rule-of-law aid are generally positive, though usually modest. After more than ten years and hundreds of millions of dollars of aid, many judicial systems in Latin America still function poorly. Russia is probably the single largest recipient of such aid, but is not even clearly moving in the right direction. The numerous rule-of-law programs carried out in Cambodia after the 1993 elections failed to create values or structures strong enough to prevent last year’s coup. Aid providers have helped rewrite laws around the globe, but they have discovered that the mere enactment of laws accomplishes little without considerable investment in changing the conditions for implementation and enforcement. […] Efforts to strengthen basic legal institutions have proven slow and difficult. Training for judges, technical consultancies, and other transfers of expert knowledge make sense on paper but often have only minor impact.

(Carothers 2006: 11–12)

Matters are worse than this passage lets on, unfortunately, because he omits the most disheartening failures (a catalogue of the widespread and persistent failures can be found in Stephen Golub 2006). In excess of a 100 million dollars has been spent in Africa on law and development, with results that have been characterized as “pretty depressing” (Piron 2006: 289).

A long-time participant confided in Carothers that “we know how to do a lot of things, but deep down we don’t really know what we are doing” (Carothers 2006: 15). “The lessons learned to date have for the most part not been impressive and often do not actually seem to be learned.” (Carothers 2006: 27)

This dismal assessment is widely shared. A review of three recent notable books on law and development observed that “[a]lthough the contributions to these volumes reflect decades of both practical experience with and scholarly reflection upon legal reforms in developing countries, at the end of the day they are remarkably inconclusive. None of the authors represented in these volumes seem strongly optimistic about whether legal reforms are likely to promote development (at least early in the development trajectory)” (Davis and Trebilcock 2008: 897).

The most an optimist can say is that it is premature to draw overly pessimistic conclusions. It “will take many years or even decades before it becomes clear whether and to what extent sustained impact transpires” (Golub 2006: 125).

In the face of this lack of progress, it is no wonder that development organizations have begun to take a serious look at non-state justice institutions. An influential background paper for the 2006 World Development Report was produced by the World Bank Legal Department, urging that development practitioners engage with customary or informal legal systems. The authors concluded that the almost total neglect of these systems by the international development community makes little sense given their dominant role:

In many developing countries, customary systems operating outside of the state regime are often the dominant form of regulation and dispute resolution, covering up to 90% of the population in parts of Africa. In Sierra Leone, for example, approximately 85% of the population falls under the jurisdiction of customary law, defined under the Constitution as “the rules of law which, by custom, are applicable to particular communities in Sierra Leone.” Customary tenure covers 75% of land in most African countries, affecting 90% of land transactions in countries like Mozambique and Ghana […]. In many of these countries, systems of justice seem to operate almost completely independently of the official state system.

(Chirayath et al. 2005: 3)

There are separate sets of negative reasons for people to turn away from state legal systems, and positive reasons for their affirmative preference of customary systems. State legal systems frequently are seen as corrupt, dysfunctional, biased, too expensive, too distant, too delayed, or too unfamiliar and unaccountable. Whatever the combination of reasons, state legal systems often lack legitimacy in the eyes of the populace. In contrast, people may prefer non-state institutions because they are more accessible, more accountable, better understood and resolve disputes more effectively to the satisfaction of the people involved. Hence, informal systems are often seen as more legitimate.

Recent case studies of Indonesia, Liberia, South Sudan, among other places, reveal that the majority of the population, at least in rural areas, express a preference for non-state justice systems (World Bank 2008; Isser et al. 2009; Leonardi et al. 2010; Isser 2011).

1.3. The problems with non-state justice institutions

But non-state justice systems raise serious questions and problems. Were it not for these issues they would have received greater attention from development organizations long ago.

(1) Detrimental to state-building project – One problem is that it has long been a prevailing assumption that every state must possess a welldeveloped legal system, necessary for economic development, to help maintain social order, to control government corruption and to create the rule of law. The state has a monopoly over law; and in the modern view, is perceived as a unified system backed by coercive enforcement.

Enhancing the role of customary or informal institutions is seen as potentially in tension with the state-building project: they might be rivals to the state for power and popularity, and they disrupt the uniformity of the legal system. Even when the state officially incorporates or recognizes these informal institutions, as many states have done, they might still be perceived as alternatives to the state rather than aspects of it.

A report on informal systems in Afghanistan noted the ambivalence of legal professionals about these systems. On the one hand they can help reduce the strain on the state legal system by handling cases. The report observes, however, that many in the legal profession are concerned that recognition of customary systems might reduce the status and prestige of the formal system and its agents. Successive Afghan governments have opposed formal recognition of customary law institutions in part because the state wanted to exert its exclusive right to make and execute laws (Barfield 2006).

(2) Violations of constitutional and human rights – A second major problem is that customary systems may be inconsistent with the national constitution and violate human rights or women’s rights. These problems were also noted in the Afghan report:

Some traditional practices violate Afghan and international law, including honor-killings, forced and underage marriage, and payment of blood money in lieu of punishment. Women rarely, if ever, participate directly in informal mechanisms, and their basic rights under Afghan law are often ignored.

(Barfield 2006: 3)

A World Bank paper highlighted the problems that women and children face under many customary regimes:

[I]n much of sub-Sahara Africa, traditional systems are patriarchal in nature and often systematically deny women’s rights to assets or opportunities. Women are unable to own, control, or inherit land, and are only able to access land through a man (generally either their father or husband). This dependency, and systematic denial of control over land, exposes women to violence and exploitation, both from the males they are dependent on or from male relatives when they are widowed. Widows, divorcees and orphans are often forced into isolation and destitution. In many regions, land security is linked to food security, with people heavily dependent on their own food production, making the lack of access to land even more devastating for many women.

(Chirayath 2005: 4)

Furthermore, customary law in some locations punishes witchcraft, conducts trials by ordeal (Isser et al. 2009) and in some instances imposes harsh punishments (Connolly 2005: 246–47). Thus, it is understandable that human rights and women’s rights advocates frequently oppose recognition of customary law.

(3) Controlled by local elites – A third common objection to customary systems is that they are captured by local elites or favoured groups who use the law to maintain their own advantage. As the World Bank paper noted, “many forms of traditional law are seen to discriminate against marginalized groups and perpetuate entrenched discriminatory power structures within the local community” (Chirayath 2005: 4). In addition, local power brokers can sometimes ignore with impunity the findings of informal justice systems because they typically lack the capacity to forcibly enforce rulings. The USIP paper on Afghanistan remarked that “[c]ustomary law has little impact on powerful militia commanders who can afford to ignore community sentiments and act as they wish” (Barfield 2006: 17).

(4) Inability to resolve disputes between communities – Another problem with informal justice systems is that they are less effective in resolving disputes between members of different communities (religious, ethnic, territorial, or outsiders) (Forging the Middle Ground 2008: 51–4). This may be because communities follow different norms, or because decision-makers are seen as biased in favour of their own community, or decision-makers are not respected or trusted by both communities. Securing compliance with a decision can also be problematic, because the primary enforcement mechanism is social pressure from the community, which has less influence on outsiders. “In the absence of strong common bonds, disputants have less incentive to accept an unfavourable outcome or to consider a ruling as binding.” (Barfield 2006: 17)

(5) Inconsistent with norms of legality – A final common objection against customary systems is that they function in a manner inconsistent with the rule of law. Customary laws are often unwritten; sometimes there are no laws; or competing or inconsistent norms and principles are available, and decisions are not based on the strict application of legal norms. A report on Indonesia offered this summary of informal systems:

Disputes are often resolved on the basis of local conceptions of justice or fairness or indeed what the local leadership subjectively thinks is an appropriate outcome, without any reference to state, religious, or traditional law. The party able to muster most authority is likely to determine the venue, the process and thus the likely outcome. Thus, while there are many “paths to justice”, informal dispute resolution is on the whole not a comprehensive and coherent system, but a set of processes run by a range of influential individuals. They dictate the structures, processes and norms to be applied […].

Thus, in most circumstances, non-state justice is in fact a delegalized environment. This can facilitate flexible mediate solutions, but in the absence of a mandated structure or agreed norms, much discretion lies in the hands of the non-state justice actors.

(Forging the Middle Ground 2008: 27)

For most informal systems, the overarching goal of decision-makers is to come to an outcome that obtains a consensus among the parties involved, often under pressure from the community. Beyond the substance of the particular dispute, the identities of the parties and their respective power relations sometimes matter to the outcome. Hearings are not always fair and impartial in the Western sense, often do not meet due process requirements, and do not follow such procedures as the presumption of innocence (Connolly 2005).

1.4. The benefits and drawbacks

The positive and negative characteristics of non-state justice systems were specified in the Afghanistan report (Dempsey and Coburn 2010):

Benefits of traditional justice:

• culturally familiar

• relatively ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables and Figures
• Preface and Acknowledgements
• Notes on Contributors
• 1. Introduction: A Bifurcated Theory of Law in Hybrid Societies
• Part I: Recognizing Non-State Justice Institutions: Five Cases
• Part II:  Non-State Justice Institution and the Law: Conceptual Approaches
• Bibliography
• Index