When people talk about legal pluralism, they refer to the fact that different legal and judicial systems co-exist within one geographical area. Some examples:
- The laws that are valid within a state are often a mix of national and international legislation.
- In many ex-colonies, some of the laws have been imported from (and by) the colonizing country, while others have a more traditional origin and date from before the colonization.
- Some countries have recognized indigenous claims and transformed those into rights, laws and judicial procedures. These indigenous laws and procedures may be valid only for disputes among members of the indigenous populations, but they may also affect the rights and interests of other citizens – as in the case of hunting rights, land rights etc. Indigenous rights may then come into conflict with other elements of the law, such as equality, non-discrimination, property rights etc.
- Other countries revive traditional law or traditional informal justice mechanisms because rulers are inspired by their religion to do so – as in the case of Shari’a – or because they believe that their formal systems aren’t capable of dealing with the existing demand for justice – as in the case of the Gacaca courts in Rwanda.
- Some subpopulations have developed their own informal justice mechanisms that operate without the approval or interference of formal state bodies: criminal gangs may create and enforce their own rules, and the same is true for terrorist groups like the IRA.
As is clear from these examples, the relationship between legal pluralism and human rights is a difficult one. Even if we set aside gang law (a marginal phenomenon that doesn’t affect large numbers of people) and indigenous law (which is a problem that can be solved), we’re still left with a problem, and it’s one that affects mainly poor and developing countries. In other words, countries where human rights are often already precarious for other reasons.
Many developing countries, and especially the poorest ones where the formal state systems of law and justice are underperforming or perhaps even failing altogether, are tempted to condone or even promote and quasi-institutionalize some of the existing informal and traditional systems, because those are the only ones operating somewhat effectively and with some level of legitimacy. It’s difficult to estimate how the positive side of this balances out with the clear risks to human rights that it entails. Let’s have a look at both sides of the coin.
Advantages of informal justice systems
Informal justice systems are obviously to be welcomed when they are the only or main source of justice. People need ways to settle their disputes and claim their rights, and when the formal system fails then an informal one may be better than nothing. And formal systems in many countries fail re obviously failing, because of many different reasons:
- A lack of resources: institutions may be underdeveloped, people may not have the right qualifications; prosecutors in the formal system may not have the material resources to investigate crimes and claims in hard to reach parts of the country; people seeking justice may not have the means to travel to the city, which is where the formal system usually operates.
- The lingering effects of violent conflict or genocide.
- Language problems or cultural and religious sensitivities: for example, some people may not speak the official national language, which is the only language accepted in the formal system.
It’s estimated that informal justice systems deal with over 70% of all disputes in some developing countries. That can probably be interpreted as an indictment of the formal system.
Disadvantages of informal justice systems
There’s a clear risk of gender discrimination since most informal justice systems are traditional and/or based on religion. For many women, the outcome of informal systems may be worse than nothing. There’s also the issue of cruel and inhumane punishments being handed out by some traditional courts, and it’s certain that none of the existing informal justice systems provide all the guarantees for the fairness of trials: appeals are often impossible, the justices are not selected or appointed on the basis of their qualifications, they are not removable or accountable, and hence in many cases corrupt or partial.
One of the causes of this lack of attention to human rights is that many informal justice systems are about keeping and restoring social harmony and about the maintenance of relationships and peace. Individual interests and therefore individual rights as well come second. Informal justice systems are meant to settle disputes; they are not a means to give everyone what he or she deserves or has a right to have, but rather a means to guarantee social stability. They are not about designating winners or losers in a dispute.
That is why you often see “solutions” such as a fine payable in livestock as compensation for murder. That’s not a real punishment for the perpetrator since it’s often his clan or tribe that has to pay, and neither is it real justice for the victim or his family. But it does help to maintain the peace and relationships between groups. And perhaps that is also what is most important to some of the victims, more important perhaps than criminal-type justice. Victims may believe that it is more beneficial for them, in the long run, to maintain good relations with others on whom they depend economically than to pursue criminal charges and individual rights.
This emphasis on social harmony is also a threat to the principle of the equality before the law: members of out-groups or groups that are considered unimportant for social harmony will not get a fair hearing.
So the evaluation is mixed: informal justice systems are OK is there is nothing better, but we should be careful when promoting them.