Five questions and five mantras on informal justice in fragile states

Organization: Van Vollenhoven Institute

On 20 October 2016, a group of thirty scholars and practitioners gathered at The Hague Institute to think about some of these questions. Geoff Swenson wrote a discussion paper, Understanding and Engaging Informal Justice. Many of the most important findings of the day were captured eloquently in a podcast by Alies Rijper with a number of attendees. In another useful blog, Erica Harper reflects critically on the developments in ‘the field’ of customary justice and donor engagement with it.

My instinct as an anthropologist is to problematize and ask more questions, and to subscribe to the worn out mantra ‘context is king.’ Based on my research in South Sudan, I am quite aware of the bedeviling complexity of a single conflict-affected society. What really do post-conflict or ‘fragile’ states have in common? There are countless differences between neighboring Burundi and the DR Congo – let alone between Iraq, Ukraine and Guatemala. Perhaps our goal should not be for a universal policy in concrete terms, but on agreement on lines of inquiry in abstract terms. In other words: can the specificity of various cases still be approached with something of a universal framework? Are there questions that a policy maker should sensibly ask in all countries where informal justice systems play a role?

I have – on my own title – attempted to translate some of the lessons from the meeting into five questions and five mantras for policy makers working on informal justice in fragile states. As always: your thoughts on my thoughts are most welcome.

  1. How do I learn?
    Your problems may not be unique, and it may not be efficient to reinvent the wheel. Another person once sat in your chair facing similar dilemmas. What has she learned that could be of use to you? What can you learn from academics and practitioners from other organizations? There have been countless publications on promoting ‘the rule of law’ abroad (Carothers, 2006) and engaging with ‘customary justice’ (Harper), yet we fail to learn the ‘lessons learned’ about legal reform (Channell, 2006). Policy makers often struggle to incorporate learning into their working week.
  2. Which country am I working on?
    Policy makers should always ask a few basic questions about the context they work in before rushing into action-mode. What defines this particular post-conflict context in cultural, socio-economic, historic, and legal terms? How does that influence the provision of justice? What useful publications have been produced on this country? Who are the quintessential domestic voices I should follow?
  3. What are peoples’ most important justice problems?
    In many post-conflict countries, little in-depth research has been done on peoples’ legal consciousness and their experiences and hopes of justice. But this remains a vital question: if we are serious about embracing a people-centered perspective on justice, (re)constructing the outward symbols of ‘rule of law’ might not be the most efficient and legitimate path. Justice problems may evolve around the conflict, but in the midst of war unaddressed quotidian problems over family and property may be crucially important too.
  4. Who is addressing these problems?
    To lawyers the intuitive point of departure for studying the resolution of disputes is the judiciary and legislature. But in post-conflict states, the judiciary is often weak and the legislature can be isolated from events on the ground. So a crucial question for a policy maker in this environment is who matters. Often customary, religious or military leaders play vital roles in the resolution of disputes – like in South Sudan. A mapping of ‘justice providers’ can aid an understanding of the power context of change and continuity. Justice is political, and so is change.
  5. How are things changing, why should I get involved?
    Everything flows, especially in societies that are or have been at war. Justice is made up of norms, actors and processes, and all three categories are challenged in conflict. The question here is how and by whom. How are norms negotiated, which actors have influence, and what processes are taking place? Inevitably, the policy maker’s effort to promote a particular change will be one of many, so why should she/he get involved? This question has both a normative component (democratic legitimacy of involvement, neocolonial critiques) and a pragmatic one (is involvement likely to promote the desired change?).

Once the problem has been understood, and the legitimacy of involvement established, the policy maker may move towards action. There are five mantras I would encourage them to internalize:

  1. Avoid mantras and checklists.
    This may be the most intuitive and faded mantra, and still it is the most important. The uniqueness of every context and process and richness of human diversity should not be regarded as a weakness of our frameworks of understanding, but rather as a vital strength in our pursuits for innovative ways towards human dignity. Stephen Golub pointed out that the political nature of justice problems renders technical approaches ineffective. Janine Ubink made a case for inclusive processes of solution-formation.
  2. Draw a big picture, but use color.
    Policy makers, much like researchers, will inevitably have to simplify in their analysis of a problem and generalize in their formulation of solutions. But this does not mean that there is no room for nuance. Unfortunately, the rediscovery of ‘legal pluralism’ led some donors to sacrifice attention for state structures on the altar of engagement with customary or non-state systems (Janse, 2013). Such simplicity of analysis is bound to lead to disappointing results, and to a perpetual moving between two inaccurate extremes of a pendulum swing.
  3. Be modest and honest.
    The rule of law-movement has been critiqued countless times for its overstated ambitions and faulty track record (Carothers, et al). In fragile contexts, the pursuit of ‘justice’ may be even more elusive. Modesty about goals and honesty about uncertainties beforehand and failures afterwards, may in the end do more good for our collective learning process than inflated promises, false certainties and hidden failures. A good example in the humanitarian field was given by Medicine Sans Frontiere’s ‘Humanitarian Negotiations Revealed’. Dishonesty and the failure to learn from failure may undermine the legitimacy of outsiders and insiders alike to promote change.
  4. Aim for incremental gains, not moonshots.
    Understand that real change comes from within, and aim for incremental gains. I can highly recommend a recent Freakonomics podcast on this matter. At our session in The Hague, Erica Harper argued how progressive change can be a slow process. Sometimes war and conflict can open the prospects for change, like in the West when emancipation was catalyzed by the Second World War. But at other times, the perpetual uncertainty of war and post-conflict recovery may draw people to a romantic version of conservatism and the time may not be ripe for new ideas.
  5. Inaction should always be an option.
    No good programs come from rushed spending drives. Sometimes the best thing to do is to do nothing for the moment. Informal justice systems are often fragile because they are supported by networks of allegiances, ideas and interests. Adding foreign support to that equation in an effort to address a justice problem may disrupt productive informal arrangements. Do no harm has been embraced elsewhere in the aid world. For informal justice the same should apply.

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