Customary justice systems are impossible to ignore when looking to improve the quality of justice in fragile societies in the short-term. The challenge is to look beyond their obvious advantages and disadvantages and find practical ways to engage them productively. Based on recent field research in Mali, this expert opinion is suggesting that developing a partnership between key customary and state justice institutions can create a platform for legal innovation if the tension between the need for local autonomy and the desire for central control can be productively negotiated.
This expert opinion is part of our Sahel Watch living analysis
The conflict in Mali has its roots in history, but can also be seen as a product of current economic, ecological, political, security and geopolitical developments in the region.
Nearly every analysis of the state of justice in fragile societies reveals the critical importance of customary justice systems for ordinary people’s ability to resolve disputes. Yet, the same analyses also tend to regret their patriarchal and conservative nature that commonly leads to exclusion of low status social groups and violations of international human rights. Such transgressions of global norms, a lack of familiarity, and/or a state building-focused policy narrative often stops (inter)national state actors from dealing with customary justice systems.
The puzzle of customary justice in fragile societies
Customary justice systems somewhat represent a development paradox. On the one hand, they are bottom up expressions of social norms and culture that reflect how communities, typically small and rural, see right and wrong. Given their origins, the focus is often on collective interests and reconciliation, with town and state far from each other. Their grassroots and bottom up characteristics speak to core tenets of peacebuilding; although customary justice systems are also vulnerable to the forces of modernization and capturing by local power structures. Yet their key strengths of accessibility, flexibility and adaptability of changing values are enduring.On the other hand, the state building discourse argues that effective and legitimate states represent a key exit route out of conflict. It is often implied that this is also a peaceful route. Historically however, state building has inherently been a top down, expansionist and conquering process, including built-in drivers of violence as scholars Huntington, Tilly and North have long since pointed out. There is also little evidence that the present is different from the past. In this view, customary justice systems are simply alternative power centres that need to be brought under control to establish an effective central state. The inability of the state to provide comparable services while suppressing old ones – however appreciated or efficient as they are – may matter less than its desire to establish hegemony.
A possible solution: Negotiating a partnership that reflects the reality of legal pluralism
A negotiated partnership between customary and state justice systems would provide an ideal short-term solution for this tension. It would seek to create both greater clarity about respective systemic boundaries and interactions, as well as start a process of mutual learning and synergizing. This can ensure continuity of access while creating time to develop improvements that ‘fit’ locally. In the long run, a more effective state justice system may assume part of the functionality of customary justice systems because it has greater potential to standardize rights and solve 21st century complexities. Yet, the long run amounts to 40+ years.In terms of its characteristics, such a negotiated partnership will require customary justice ‘office holders’ to accept a light measure of schooling (for example, on human rights) and some state regulation (for example, on minimum procedures and consultation on key appointments). The aim here is less to satisfy global norms and more to satisfy the desire for state control. Inversely, it will require state justice actors to accept a high level of autonomy in how communities adjudicate both civil and (types of) criminal disputes, a willingness to learn from customary proceedings, and to integrate some customary values into the state’s legal system. Ideally, this is achieved via innovative deliberation by the different involved justice stakeholders.
Overcoming power asymmetries is key to partnership: A role for donors
The feasibility of reconciling the need for local customary autonomy with the desire for central state control varies in function of the relative power of social forces, the centre versus periphery relations, and the extent to which ruling elites are development oriented. At a minimum, reaching a positive negotiated outcome requires overcoming the power imbalance that is a result of the fragmented nature of customary justice and the centralized nature of state justice. It is here that international actors might add their greatest value: not by interfering with the content and provision of justice, but by helping to develop dialogue that enables different stakeholders to deliberate on equal footing about the ‘justice ecology’ they wish to create.On a final note, the shortcomings of customary justice systems are easily matched by many state justice systems. Consider for example the shocking pretrial detention rates found in the developing world, or the disproportionate rule of ‘three strikes you’re out’ in the United States. Imperfection is a reason for engagement, not disengagement. It is also worth recalling that every society features more flexible justice systems than those provided by the state. Modern manifestations include mediation, ombudsmen and ‘justices of the peace’ that, in a way, pay tribute to the enduring strengths of customary justice.
 Connolly distinguishes three modalities for the relation between customary and state justice systems: abolition; incorporation and; separation. She leaves political and developmental considerations largely out of account. Connolly, B., ‘Non-state justice systems and the state: Proposals for a recognition typology’, in: Connecticut Law Review, Vol. 38: 239, 2005-2006. See, for example: Huntington, S., Political order in changing societies, Yale, YUP, 2006 . World Bank, Conflict, security and development, Washington D.C., World Development Report, 2011.
Photo credit main picture: Elders / Photo by Julien Harnels / Via Flickr