Benefits of linking formal and informal justice systems
At the Platform’s 4th Annual Conference, it was commonly acknowledged that state-centric approaches have failed to address the needs of populations. The state is often absent, and if justice is delivered it is often delayed and ineffective. Limited success of state systems enforce reasons why people resort to local sources of justice.
Informal justice systems hold legitimacy in the eyes of local populations, providing a pathway to justice where there might not be one otherwise. They offer benefits relating to cost, accessibility, physical proximity, and swift rulings and justice delivery. In some cases, informal justice systems provide basic human rights to people where governments may deny them.
Challenges with informal justice
However, despite the many benefits, there are also challenges in engaging with informal justice systems. Informal systems may be subject of elite capture: the consolidation of existing hierarchies and dominating powers often happen at the expense of the most vulnerable and disempowered. As a consequence, it may not be aligned with human rights standards and constitutional provisions: certain norms and practices, such as public humiliation and violence, contradict the fundamental principles of fair trial, non-discrimination and equality, among others.
What research shows us: benefits to linking the two
Traditional donor-led legal reform approaches have emphasized the negative attributes of informal justice systems and promoted formal institutions instead. As a consequence, informal justice has been discouraged or ignored, with the effect of distancing reform efforts from the lived reality of the majority. Despite the challenges of informal justice outlined above, emerging research findings suggest that linking formal and informal justice may improve both, with positive effects for the most vulnerable. IDLO’s work on justice systems in Somalia, for example, aims to strengthen these linkages and improve access to justice of vulnerable people by promoting the mutual recognition of the two systems and the adoption of minimum human rights standards. These efforts start from the premise that informal justice plays an important role in the everyday lives of many of the world’s poor and that customary systems are not inherently at opposites with human rights.
As IDLO’s work on women’s land rights in Burundi showcases the obligation to protect and promote human rights extends to formal and informal systems alike: both systems, in fact, can violate such an obligation, reinforce discrimination and deny procedural justice. Research points out that in many contexts informal justice systems deal with the protection of interests of women on crucial issues such as marriage, custody, inheritance and property. For this reason, and especially in contexts where state justice systems do not meet adequate standards, informal systems provide valuable entry points for practitioners to improve the delivery of justice and the protection of human rights, gender equality and procedural fairness.
What we can learn for programming
This research presents an opportunity for programming. We know that practitioners should engage with and support informal justice, but we need to better understand how to do so. As it stands, there is more research than practice. The complexity of informal justice is well understood through research and knowledge exchange, and practitioners can build on this to further establish what works. In order to do so, future programming should give due attention to norms (both customary and statutory), processes (both formal and informal) and institutions (both official and unofficial).
Programming should also remember the justice needs of outlying and isolated communities, not just communities in close proximity to national justice institutions. Though programming may be more difficult in remote areas with increased reliance on informal systems, practitioners should also work on the capacity of the formal system to reach out and connect to communities for their access to justice.
Finally, justice is not an isolated sector. The rule of law is a bedrock for development and central to the 2030 Sustainable Development Agenda. Though access to justice is featured in its very own Goal 16, we know that justice pervades all the SDGs, influences norms and shapes societal structures. The work to link formal and informal systems is implicated in broader development goals, and should be treated as such. By strengthening this link, justice can have far-reaching societal influence and advance the wider development agenda.
This blog was inspired by the Platform's 4th Annual Conference, and in particular related to the breakout session on “Linking informal and formal justice systems in fragile and conflict-affected states.” Keep an eye on our website (#srolconf #hardchoices) for the main outcomes from the conference.