Non-State Justice Systems
Siddharth Peter de Souza
- Constitutions and international law — Supraconstitutional authority — Constitutional processes — Quasi-judicial bodies — Supranational constitutional courts — Jurisdiction — Customary international law — Decisions of international courts — International organizations
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1 Understanding non-state justice systems requires exploring both the plural legal orders within which they operate and understanding the role of the state in the administration of justice. This entry has four sections. In the first it examines the evolution, recognition, and definitions of non-state justice systems within the domain of legal pluralism. The second looks at how these systems are organized and the relation between such systems and the state. The third section explores how these systems manifest in constitutional provisions, and the final section assesses the treatment of these institutions within constitutional frameworks.
B. Evolution and Recognition
1. Exploring Plural Legal Orders
2 Legal pluralism recognizes that laws and legal institutions cannot be subsumable within the framework of one system or influenced only from the sovereign state. It suggests instead that such systems emerge through interactions and competition within various social fields (Griffiths 1–5). This idea is predicated on the notion of a heterogeneous state where different cultures (culture) and regulatory influences imply legal and administrative operations beyond those central to a state (de Sousa Santos 42). There is, therefore, no unitary conception of law but instead the achievement of certain historical and political conditions which allow for different structures and categories that go beyond an orthodox understanding grounded in the state (Dupret 3). This multiplicity of form also finds resonance in the idea of ‘semi-autonomous social fields’, as conceptualized by Moore, where boundaries between these fields are not defined by their organization but by ‘processual characteristics’ (Moore 57). These different fields, forms, and norms in practice, therefore, suggest that legal pluralism provides a set of templates and models through which various legal orders are regulated and authorized (Jayasuriya 168). The complexity with legal pluralism is being able to distinguish what aspects of a social phenomenon must be considered to be legal and how to demarcate inter-relations between law and other social practices (Merry 878).
2. A Preoccupation with a State-Building Project
3 Non-state justice systems play a prominent role within plural legal orders. In Malawi 80–90 per cent of all disputes are resolved through customary systems (custom), in Bangladesh, it is an estimated 60–70 per cent, and in Sierra Leone, approximately 85 per cent of all disputes of the population fall under the jurisdiction of customary law (Wojkowska 12). The form that these systems take depends upon the historical context of the country; the process of decolonization; the procedures, borrowed, shared, and employed; the composition of the systems; and the ways in which the judgments/orders are operationalized (United Nations Development Programme (‘UNDP’) 8).
4 Over the years, a preoccupation with a state-centric conception of rule of law, and a belief that transferability of norms and institutions can work regardless of socio-political and cultural contexts, meant that there was focus instead on replicating state systems across national boundaries (Chirayath 1). Frankenberg has criticized comparativists for over-emphasizing similarities and labelled comparative law as a ‘post-modern form of conquest executed through legal transplants and harmonization strategies’ (Frankenberg 262–3).
5 Development actors have sought to link legal reform with economic growth without debating about the nature and form of the law, the connections that it has with economic activity, and how it adapts to different political, social, and institutional contexts (Upham 33). As a result, this advances a formalist model of law, Upham argues, based on two assumptions on law and society. Firstly that law understood as a system of rules can guide the functioning of legal systems, and secondly that law’s primary role is in terms of dispute resolution and this dispute resolution depends on formality to ensure legality and stability (Upham 8–9). The presumption of the critical role of the state in rule of law promotion has led to a rule of law ‘orthodoxy’, ie a set of ideas that were of a technocratic nature focussed on economic growth, good governance, and poverty alleviation (Golub 7). This has resulted in strategies aimed at replicating legal systems with pre-decided terms of reference manifested in building courthouses, passing legislation, adopting particular codes and legal idiom, and conducting capacity building workshops (Golub 23).
6 However, there is now a rescaling and pluralizing of governance issues which cannot be resolved exclusively through the nation-state or through its hegemonic notions of development (Porter 169). This is because the existence of hybrid legal systems and legal pluralism in practice has resulted in challenges to political accountability, a fragmented politics, and increased legitimacy for neopatrimonial systems of governance (Porter 170). After decades of investment in justice sector reform with its emphasis on state-building, there is now an increasing acceptance in adopting a ‘multi-layered’ approach that builds the capacity of the state, engages in productive partnerships with non-state justice systems, and establishes minimum standards for justice and security reform (OECD 6–7). It is in this context of areas of legal pluralism and development that this entry seeks to make an intervention into the importance of exploring non-state justice systems through a constitutional lens.
3. Definitions and Recognition of Non-State Justice Systems
7 Non-state justice systems have been defined by the UNDP as forums where the adjudication of cases is not by the judiciary as established by law, and the substantive, procedural, and normative foundations are not based on statutory law (UNDP 8). The Department for International Development refers to them as all systems that exhibit some ‘non-state authority in providing safety, security and access to justice’ (Department for International Development (‘DFID’) 1). The phrase ‘justice systems’ suggests the existence of sophisticated and specialized systems for the administration of justice (Faundez 5). In this case, however, the emergence of processes and procedures is not through rules but through different variations and influences of culture, tradition, religion, community, and politics (relation of religion to state and society). These different origins for these forums are the reason why these systems have a ‘non-state’ attribute (Koetter 5–6). In many instances, these forums place an emphasis on restoring social harmony where there is conflict. They also have similar characteristics, which include informal processes, social pressure that encourages participation (principle of participation), compromises between parties, and an increased role of the community in adjudicating disputes (Connolly 241). Some of the benefits of non-state justice systems is that they use language and procedures that are accessible and familiar, they are also affordable, efficient, and encourage reconciliation and as a result of public participation. They also have a high degree of community investment in the dispute resolution process (de Souza 488; Connolly 243). The challenges of such systems are also several and include the replication of power hierarchies and elite capture among dominant members of communities and thereby the lack of participation of women and children in these forums, the lack of adherence to human rights, and also the lack of accuracy and certainty of decisions within the forums (Connolly 243–6; de Souza 488).
8 Over the past years, the acknowledgment of plural legal orders and non-state justice systems has become more visible, prominently occurring in the 2007 UN Declaration on the Rights of Indigenous Peoples (UNGA Res 61/178; rights of indigenous communities). In Article 4 emphasis is placed on the ‘right to autonomy or self-government in matters relating to internal as well as local affairs’, providing a ‘right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions’ while also continuing to be able to participate fully in the life of the state. In Article 34, attention is paid to the right to ‘promote, develop, maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems in accordance with international human rights.’ This right, however, does not preclude persons who use indigenous systems from also having the right to fair and just procedure for the resolution of conflicts and disputes with the state and other parties.
9 Much earlier, in 1989, the International Labour Convention concerning Indigenous and Tribal Peoples in Independent Countries (No 169) provided in Article 8 that
these peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle.
10 Article 9 similarly provided that ‘to the extent compatible with the national legal system and internationally recognized human rights, the methods customarily practised by the peoples concerned for dealing with offences committed by their members shall be respected.’ From both these documents there is recognition not just of the existence of a tradition and its socio-political and economic importance to the user, but also a strong advancement that the user must not have to choose between alternative forums for dispute resolution. These provisions place human rights as the central criteria for access to justice.
11 This careful balancing act which recognizes the virtues of traditions, cultural rights, and the universal standards of human rights was also attempted in General Comment No 32 to Article 14 of the International Covenant on Civil and Political Rights (1966) where the Human Rights Committee acknowledging legal plurality stated that ‘Art. 14 is also relevant where a state, in its legal order, recognizes courts based on customary law, or religious courts, to carry out or entrusts them with judicial tasks’ (religious courts). It also recommended setting standards for their functioning including firstly, that binding judgments could not be given unless recognized by the state, secondly, that proceedings must be limited to minor civil and criminal matters and thirdly, that they must meet the minimum requirements of a fair trial and be validated by state courts in consonance with provisions in the covenant.
C. Forms, Structures, and Linkages
12 Organizationally it becomes important to understand how principles of inter-legality and plurality function in operation. Chiba suggests these can be segmented into official law, where law is authorized by the ‘legitimate authority of a country’, unofficial law, where the law is not officially authorized by legitimate authorities, but sanctioned in practice by the general consensus of a certain ‘circle of people’, and legal postulates, which are a ‘value principle or system which is specifically connected with and worked to justify a particular official or unofficial law’ (Chiba 203). Tamanaha submits a more expansive list of categories of normative ordering, though he concedes that these were rough labels with significant overlap. These are relevant in order to understand the plurality that different forms of non-state justice systems take. These are (i) official legal systems which are linked to institutions and find form in legislatures, enforcement agencies, tribunals, etc; (ii) customary/cultural normative systems which are associated with shared social rules and norms; (iii) religious/cultural normative systems which are oriented and have a specific religious context; (iv) economic/capitalist normative systems which relate to capital production and market institutions; (v) functional normative systems which are organized around a specific purpose, for example a university, etc; (vi) community/cultural normative systems broadly, which are organized around a common way of life (Tamanaha 397–400).
13 Understanding these different categories and forms of normative ordering is critical to navigating the nuances of the relationship between non-state justice systems and the state. Levy proposes three methods for incorporating indigenous law within formal legal systems including, firstly, as customary law, where the state recognizes the survival of law based on customary rules but does not concede sovereignty to the community, secondly, through common law where the state recognizes customary approaches but where these approaches are incorporated in procedures of common law, and thirdly self government where there is also a concession of territorial sovereignty (Levy 5–12).
14 Given the different types of non-state justice systems, the relation with the state can be examined with a typology. Forsyth proposes one where there are varying degrees of state coercion and control over the independence and functioning of non-state justice systems (Forsyth 67–8). At one extreme there is total repression by the state whereas at the other extreme, there is complete incorporation of the non-state justice system by the state. In this continuum a series of dimensions arise, including the extent of repression by the state, the constitutional recognition of different systems, the extent of formal regulation, and the manner in which the state enforces different decisions made by the non-state justice systems (Forsyth 69). Connolly also suggests different models where the state engages in attempts to abolish these forums, one where they are fully incorporated within the formal legal system, a third model which results in low levels of accountability to the formal system, and the fourth which suggests co-existence between these different forums.
15 Determining what type of linkage is optimal requires deep understanding of the context, legitimacy, and popular usage of these systems. In models where these systems are completely repressed or abolished, it leads to a counterproductive situation where many individuals would not have access to any forum of dispute resolution (Wojkowska 25). In cases where there is co-existence or limited incorporation, as in the middle of the continuum, better dialogue is possible between the systems with improved regulation, accountability, and standards of justice delivery (Wojkowska 28–9). Greater interaction will facilitate adherence to human rights standards and improved methods for compliance and monitoring, but independence will allow for certain unique characteristics and familiarity to remain untrammelled. Full incorporation on the other hand may result in a situation where there is a suppression of cultural diversity and practices, a top-down approach to engagement, and a skewed harmonization with the formal system hegemonizing the interaction (Wojkowska 26).
16 Along this continuum from non-state justice systems to the formal state system, there is a transformation from ad-hoc and spontaneous dispute resolution forums, to more well-defined forums based on ethnic or religious identity, to stable and institutionalized forums (UNDP 35–6). This shift would demonstrate a move from forums based on negotiable norms to those subject to some borrowing of norms from the state system, to finally a framework where legal norms are codified or even guaranteed by statutory law. When moving across degrees of formality, there is a transformation from negotiable procedures and penalties, to those relatively fixed but capable of adaptation, to those in state systems which are stable and provided in statutes (UNDP 35–6).
17 The question of whether the strength of the state plays a role in the sustenance of non-state justice systems has also been an important point of discussion. While the World Justice Project (‘WJP’) argues that non-state justice systems are in geographies where the formal justice system does not play an effective role in the delivery of justice (WJP 12), Koetter argues that while non-state justice systems may be more prominent in fragile countries with weak statehood they are also well entrenched in countries of strong statehood, such as South Africa, with its well-functioning judiciary and yet exclusive customary courts, and Germany, where religious communities are given autonomy to manage their own affairs (Koetter 11).
18 These variations across degrees of formality and purposes are also found in the institutional frameworks that are represented in the constitutional provisions.
D. Comparative Constitutional Descriptions
19 Non-state justice systems are recognized and emerge in several constitutions across the globe particularly in Africa, Latin America, and South Asia. Cuskelly, in her findings for the International Union for Conservation of Nature, has listed 16 African constitutions that contain provisions related to traditional institutional arrangements, six Meso and South American constitutions with similar provisions, while only a few Asian, European, and North American constitutions which provide for such provisions (Cuskelly 6). This section explores different ways in which these traditional institutions have been recognized in different constitutions, and limits their description to where institutional frameworks have been accounted for.
20 There are several reasons and regulatory motives for the increasing formal recognition of non-state justice systems; firstly for the protection of cultural rights of indigenous groups, secondly, for the fulfilment of international obligations such as International Labour Organization Convention No 169 (referred to earlier), thirdly, due to the extension of state public law into new territories, and fourthly to increasingly juridify these systems in order for them to comply with minimal human rights standards and due process (Koetter 23; Van Cott 264).
21 In the following descriptions, the need to balance a protection of indigenous rights and institutions with a need to increasingly establish Rule of Law assumes a primary role in the design of these constitutions.
1. South America
22 In the Constitution of Bolivia, there is an explicit acknowledgement of the precolonial existence of indigenous farmer nations and people, and thereby recognition for a variety of traditional non-state justice systems which emerge from their shared cultural identity, historical traditions, and language (Constitution of the Plurinational State of Bolivia: 7 February 2009, Arts 2, 30 (Bol). In terms of judicial functions, these traditional systems will apply their own principles, cultural values, norms, and procedures but must respect the right to life, the right to defence, and other rights guaranteed in the Constitution (Art. 190 of the Bolivian Constitution). In the Plurinational Constitutional Court, there is representation from both the indigenous system and the formal system in recognition of the different streams of dispute resolution forums (Art. 197). The Constitution envisions that this Court will also resolve conflicts between the ordinary and indigenous jurisdictions.
23 In Colombia, the Constitution mandates that indigenous people may exercise jurisdictional functions in a manner that reflects their own laws and procedures provided they are not contrary to the Constitution and other national laws (Political Constitution of Colombia: 1 July 1991 (as Amended to 2015) Art. 246 (Colom)). In Peru, native communities also have the freedom to establish traditional forums provided the fundamental rights of the individual are not compromised (Political Constitution of Peru: 29 December 1993 (as Amended to 2009) Art. 149 (Peru)). Further, when there is an instance of a legal gap that impedes the delivery of justice, the Constitution provides that reference must be made to general principles of law or customary law to resolve the situation (Art. 139).
24 The Constitution of Venezuela similarly requires that forums for dispute resolution based on ancestral tradition do not operate contrary to the Constitution, law, and public order (Constitution of the Bolivarian Republic of Venezuela: 15 December 1999 (as Amended to 2009) Art. 260 (Venez)) and the Ecuadorian Constitution provides that while allowing for the creation, development, application, and practice of traditional legal systems, such systems must not infringe on the rights of women, children, and youth (Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 21 December 2015) Art. 57 (Ecuador)).
25 Several African constitutions also recognize the different institutional arrangements with respect to non-state justice institutions.
26 In Angola, the Constitution recognizes the status, role, and functions of traditional institutions provided such organizations do not conflict with the Constitution or the dignity of the person (Constitution of the Republic of Angola: 21 January 2010, Art. 223 (Angl). In the Democratic Republic of Congo, while recognizing the role of traditional authorities, the Constitution places a duty on such institutions to promote national unity and cohesion (Constitution of the Democratic Republic of the Congo: February 18, 2006 (as Amended to January 20, 2011) (Dem Rep Congo), Art. 223). In Ethiopia, the Constitution recognizes the role of traditional institutions particularly in the domain of marriage law (Constitution of the Federal Democratic Republic of Ethiopia: August 21, 1995 (Eth), Art. 34). In Ghana, the National House of Chiefs and the Regional Houses of Chiefs are established to advise and interpret matters concerning traditional customs and also required to evolve a unified set of rules which would ensure that those practices which are socially harmful or outmoded are eliminated (Constitution of the Republic of Ghana: 8 May 1992 (as Amended to 1996) Art. 272 (Ghana)).
27 The Swaziland Constitution recognizes engagement with custom in its preamble as a key component of promoting good governance (Constitution of the Kingdom of Swaziland Act: 2005, Preamble (Swaz). It establishes a council of chiefs to advise the king in matters pertaining to customary law issues (Art. 251(1)). The Constitution also provides that custom, though recognized and enforced as part of the law of Swaziland, must not be repugnant to principles of natural justice, morality, or general principles of humanity (Art. 252).
28 Madagascar, in Article 2 of its Constitution, provides for the preservation of the Fihavanana. This group of elders is responsible for ensuring that ancestral values among the Malagasy people are protected and that crises and conflicts of all kinds that affect national unity are prevented. The elders have the authority to ensure that internal societal links are not damaged in order to maintain and continue to value culture and traditionally acquired knowledge (Constitution of Madagascar: 2010, Art. 2 (Madag).
29 In South Africa, a different approach is mooted. Here, the formal courts are asked to refer to customary law when it is applicable. However, the Constitution also provides that such application of customary law must be subject to, and must promote, the spirit of the Bill of Rights (Constitution of the Republic of South Africa: 18 December 1996 (as Amended to 2012) Art. 39(2) (S Afr)). Kenya similarly requires that traditional dispute resolution systems must not contravene the Bill of Rights or the Constitution but also provides that these forums should guide the formal courts (Constitution of Kenya: 27 August 2010, Art. 159(2) (Kenya).
30 In South and East Asia, there are limited provisions which explain institutional arrangements with regard to non-state justice systems and this is because a majority of these institutions are concerned with representation of indigenous rights in existing political institutions (Cuskelly 17). In Pakistan, the Constitution allows for customary institutions in the Federally Administered Tribal areas to operate on the basis of their own rules and beliefs. Article 247(3) of the Constitution provides that no Act of Parliament shall apply to these areas unless so directed by the President (Constitution of the Islamic Republic of Pakistan: 12 April 1973 (as Amended to 2017) (Pak); constitutional protection of the autonomy of ethnic groups).
31 In Vanuatu, there is a provision for the administration of justice where the courts must determine matters in conformity with substantial justice and where possible also custom (Constitution of the Republic of Vanuatu: 1 January 1980 (as Amended to 2013) Art. 47(1) (Vanuatu)). In the US, there has been a wave of anti-Sharia bills with over 200 since 2010 (Shanmugasundaram 2018). These bills have been criticized by the American Bar Association (‘ABA’) as stoking anti-Muslim sentiment, which opposed the blanket prohibition of the use of religious law by US courts. The ABA stated that such a law would not be applied if it were contrary to public policy and rights guaranteed by the US Constitution (Constitution of the United States of America: September 17, 1787 (as Amended to May 7, 1992) (US)) (Shanmugasundaram 2018).
32 In India, the Sixth Schedule of the Constitution provides for the preservation of administrative apparatus of regions with a large tribal population and in Articles 244(2) and 275(1), it also provides for the creation of Autonomous District Councils which are forums that deal with matters including tribal law as well as other governance functions (Constitution of India: 26 November 1949 (as Amended to 16 September 2016) (India)). In Israel, the Constitution provides for the establishment of religious courts to hear matters including marital issues, and the Supreme Court in Article 15 is empowered to order these religious courts to hear or refrain from hearing particular matters depending on jurisdiction (Basic Laws of Israel (Isr)). In Jordan, the Constitution provides for the creation of Sharia courts and in Article 105 determines their jurisdiction in matters related to the personal status of Muslims (constitutions and Sharia provisions). In these cases Sharia law applies according to Article 106 (Constitution of the Hashemite Kingdom of Jordan: 1 January 1952 (as Amended to 2016) (Jordan)). The Palestinian Constitution similarly provides for religious matters to be administered by Sharia Law in Article 101 (Palestinian Constitution: 2003).
33 A common thread that emerges when we describe the treatment of non-state justice systems is the tension between provisions related to human rights principles and those that govern these traditional institutions. In almost all instances, there is a clear priority being given to human rights principles and standards. It is relevant to recognize that institutionalizing non-state justice systems does not emerge from nostalgia for it, but from an appreciation of the diversity and histories of the nations that require the existence of different cosmological frames to deal with the dispute resolution. Despite this, the emergence of a constitutional framework presents an argument for whether there is a search for universal principles. This is explored further in the next section.
E. Comparative Assessment
34 The provisions for institutional arrangements of non-state justice systems as described in the previous section have a number of interesting and overlapping themes, and for the purpose of this entry, when conducting an assessment, the themes are organized around the aspect of recognition and identity, the challenge of transplantation, the emergence of blended values, and finally the necessity of constraints.
35 First, the increasing recognition of these systems suggests a contextual approach to constitutional design, one that places importance on the historical situation of the country, and whether its colonial past or its ancestral traditions should be given weightage, as well as the social and cultural situations of its people. It is a search to discover a constitutional identity, which as Jacobsohn argues, is through experience and a dialogic process representative of the past as well as a willingness to move beyond it (Jacobsohn). Through Rosenfeld’s three general descriptions of constitutional identity, of fact, content, and context, an identity for non-state justice systems can also be evolved (Rosenfeld 675). In this regard, the question of fact is important because the existence of constitutional provisions for non-state justice systems gives them a status more deeply secured when compared to similar systems which operate outside a constitutional framework. On the aspect of content, the formulation of the constitutional provision provides an insight into the antecedents and expectations of the functioning of the non-state justice system and finally with respect to context, it is an examination of how these systems are situated within the collective identity of that constitution.
36 Secondly, on the debate of transplantation, it is pertinent to note that many constitutions, which have expansive provisions on traditional justice systems, have been written in the new millennium, whether this is Bolivia or Swaziland, Ecuador or Madagascar. This perhaps reflects an acknowledgement of the failure of the state-building project with a wholly foreign conception of justice. As Perju argues, timing is an important factor in understanding the anatomy of constitutional transplants, as there is a continuous dialogic process and constitutions do not get written anew. Equally however, he argues for multiple motivations for such transplants and in this case both the functional and reputational approaches are important (Perju 1168). For the former, this includes whether transplants work and actually serve a particular function, and for the latter whether they have legitimacy within the community. An increase in the recognition of non-state justice systems is a result of accepting that formal systems do not have the same legitimacy or function that these unique systems have, and hence they too require a special place within the institutional design.
37 Thirdly, there is a need for balance and a search for constitutional values. Constitutional frameworks all represent a blend of attributes particular to that constitutional culture as well as common features of a ‘universal culture of constitutionalism’ (Jacobsohn 700). In Swaziland, the Preamble to the Constitution includes the blending of institutions of traditional law and custom with those of an open democratic society, with the goal to together encourage the economic and social development of the nation. This approach of balancing tradition is also reflected in the South African Constitution, which balances African values of truth, reconciliation, compensation, and rehabilitation with the more Western values of procedural justice, interspersed with constitutional ideals and principles (Rautenbach 121). By doing so these constitutions attempt to give values which can migrate and be borrowed from different jurisdictions, and for particular applications, depending on the local aspirations and habits of that country. The South African Constitutional Court has in recent times also made a conscious effort to not just look at official customary law, but also at how customary law is evolving (Osman 110). Osman argues how in cases such as Shilubana v Nwamitwa (2009) (S Afr) the Court provided guidelines for determining developments in customary law including by looking at the rights of the community to develop their own laws while still maintaining that this should be balanced with legal certainty and the need to also look at traditional practices of the community (Osman 105–7). In MM v MN (2013) (S Afr) the Court demanded more evidence when examining disputed rules in customary law thus proactively examining new developments (Osman 107–9).
38 Fourthly, on the question of constraints, even while blending does seem to be an approach that is routinely used, in many cases which have been described in the previous section, there is a clear preference that non-state justice systems must follow differently framed standards related to a bill of rights, human dignity, rule of law, public order, etc. There is a clear attempt by these constitutions to incorporate and enforce certain universal principles by postulating that certain problems can have common solutions. In doing so, the framework demands that while local particularities must be reflected in the institutional design of the constitutions to respond to people’s needs, aspirations, and histories, they must also operate within the framework of the constitution and its ideals, principles, and values. These arrangements signify that in the development and treatment of non-state justice systems, there is also a nod to the ‘internationalization of constitutional law’ (Chang and Yeh). This is seen through the incorporation of international human rights into domestic constitutions as seen by the reference to various standards, the convergence of national constitutions also visible in the frameworks for how non-state justice systems are treated across geographies, and with regard to constitutional devolution through the treatment of indigenous rights which is heavily influenced by the United Nations Declaration on the Rights of Indigenous Peoples referred to previously (Chang and Yeh 1038–41).
39 This entry is an attempt to present an understanding of how non-state justice systems operate within the framework of plural legal orders and the ways in which we can explore and define them. It is also an engagement briefly with the treatment of these systems by development actors, who have long propounded transplantation as part of a state-building project. It is an exercise in understanding the forms that non-state justice systems can take as well as the ways in which they can link to and can be incorporated by the state. In the description of different constitutional provisions, a common trend, as described previously, is how these systems pay attention to ancestral pasts but apply constraints based on more modern universal constitutional values.
40 An engagement with a comparative constitutional study of non-state justice systems is to discover how their identities have evolved through both local conditions, the politics and migrations of constitutional ideas, as well as engaging with finding a constitutional value while trying to blend these different influences. In responding to and transcending functional and often illegitimate transplantation, these systems have presented a new way of strengthening the local while attempting to build greater conformity with universal standards.
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