"Customary Justice and the Rule of Law in War-Torn Societies"
- What dilemma does customary justice present to international justice actors and how does this volume address it?
- What challenges or constraints do rule-of-law practitioners face when engaging customary justice systems?
- What are the arguments against engaging with customary justice systems?
- Why is it so important for international justice practitioners to take customary justice systems into account?
- What principles does the volume set forth to guide policy and programming in environments of legal pluralism?
- How can the rule-of-law community mainstream the approach described in the book?
What dilemma does customary justice present to international justice actors and how does this volume address it?
From its outset, this volume has recognized the primary dilemma cited by many international justice actors. On the one hand, customary justice systems are far more accessible than formal institutions to the local population. On the other hand, customary systems tend to be inaccessible—both practically and culturally—to outsiders, who generally lack the skills as well as the legitimacy to engage with them.
This volume seeks to deepen knowledge of how customary justice systems might further—or obstruct—the goals of stability and rule of law in the immediate postconflict period. It tackles the difficulties that arise from clashing conceptions of justice and how these play out in the fragile and devastated terrain of societies emerging from mass violence. It lays out concrete guidance to national and international policymakers and practitioners on how to address these complexities in justice reform initiatives.
Perhaps the most important message of this volume is that efforts to promote the rule of law in legally pluralistic societies must begin with a deep and broad understanding of the entire justice landscape: deep because it must look beyond laws and institutions on paper to include socioeconomic and political dynamics that shape the justice environment; broad because it must consider the full range of justice mechanisms, including formal, customary, and those that are in between.
What challenges or constraints do rule-of-law practitioners face when engaging customary justice systems?
Three fundamental constraints continue to hinder a shift in practice.
- The first is the widely held tendency to see justice reform as a technical exercise of drafting laws and building institutions and therefore as something to be done by international legal professionals. But lawyers schooled in Western formal law rarely have the background, skills, or access needed to account for the contextual complexities of customary justice systems. This attitude is symptomatic of the broader flaws of the rule-of-law enterprise in postconflict societies.
- The second constraint is a normative one. As the rule-of law enterprise has grown into a core element of peacebuilding operations over the past fifteen years, its normative basis has also become firmly established. The United Nations’ definition of the “rule of law” explicitly calls for consistency with international human rights norms and standards. A primary and generally unquestioned goal of most postconflict rule-of-law interventions is often stated as nothing less than full compliance with these standards. This built-in normative bias poses an obvious challenge facing customary systems that are not based on the international ideal of rule of law (based on Western liberal democracy) and include practices that fall short of international norms.
- The third constraint concerns the nature of the postconflict peacebuilding enterprise. The objective of state building calls for the (re)establishment or expansion of state sovereignty, which is generally seen as entailing a state monopoly on delivery of justice and regulation of crime. Rule-of-law practitioners thus tend to regard customary systems as a distraction from their main task. What are the arguments against engaging with customary justice systems?
Arguments against engaging usually come from two camps. One posits that customary systems are so far from the goals of rule of law—especially international human rights standards—that justice reform strategies should seek to replace them rather than engage them. According to this argument, any official recognition of customary systems is tantamount to sanctioning human rights violations.
The other camp is more cognizant of the positive role customary systems can play but argues that since it is so difficult for outsiders to understand and since the risks of engagement are so high, efforts and resources should be focused exclusively on the formal justice system. After all, the argument goes, while the international community may not know how to engage customary systems, it does know how to write laws and reform state institutions.
Why is it so important for international justice practitioners to take customary justice systems into account?
First of all, customary justice systems are and will likely remain far more accessible and effective than the broken and mostly distrusted formal systems. Second, the customary systems offer a paradigm of justice preferred by much of the population and can often resolve problems that the formal system cannot, including dealing with root causes of conflict, ending cycles of blood vengeance, resolving sociospiritual problems, and promoting social reconciliation. Third, constructively engaging customary justice systems can improve the legitimacy of the state and its formal institutions, whereas repressing them can exacerbate tensions. These conclusions call for a fundamental shift in how justice reform is pursued, to take into account the sociocultural and political context that shapes local perceptions of justice and the dynamics of change.
What principles does the volume set forth to guide policy and programming in environments of legal pluralism?
The volume outlines four principles to guide policy and programming:
- Justice reform policies and programs must be based on a deeply contextual understanding of the entire justice landscape.
- Policies and programs concerning customary justice should be aimed at developing practical solutions to real problems.
- Reform strategies need to be grounded in current—and realistic—expectations of institutional capacities and social realities.
- Justice reform strategies should provide space for developing a justice system that uniquely reflects the values and identity of the population as a whole.
How can the rule-of-law community mainstream the approach described in the book?
Mainstreaming this approach will require the rule-of-law community to fill several remaining knowledge gaps as well as adjust institutional support structures. A growing number of researchers, practitioners, and donors are dedicating time and resources to this topic, adding much-needed evidence, experience, and analysis. Key priorities for deepening the existing knowledge base include the following:
- Document and evaluate interventions related to customary justice.
- Strengthen the body of comparative data and analysis. There is an understandable tendency for justice reformers to look for models from other countries regarding the legal status of customary justice and other policy issues. But comparative data can be misleading, especially when they are limited to describing the structures used elsewhere. For comparative information to be truly useful, it needs to be deeply contextual so that it may account for the political, social, and economic variables that underlie the policies and determine their impact.
- Deepen the theoretical basis of justice reform work. The mainstream rule-of-law community needs a stronger intellectual underpinning that connects justice reform with theories of change management and understands the relationship between justice reform and other peacebuilding goals.
- Set an agenda for focused research. Along with the wider research agenda on legal pluralism laid out above, a number of narrower topics—women’s rights, religious and ethnic minorities, and youth—merit focused research attention.
- Embrace cross-sectoral and interdisciplinary approaches. In most field missions, rule-of law departments staffed with professional lawyers live a separate existence from civil affairs, governance, or economic departments. This artificial isolation of the justice sector from the broader context discourages much-needed interdisciplinary problem-solving. Both groups—researchers and practitioners—should explore collaborative efforts toward strategies of reform that are both nuanced and practical.
