Justice

Non-state justice and security systems

In many places, the main institutions dealing with disputes are not part of the state. Instead, these functions may be carried out by a variety of traditional, customary, religious and informal systems. Such systems can be more relevant and accessible for poor people than state institutions although they may reinforce local power inequities, patterns of social exclusion and human rights violations. It is therefore important that any support to non-state systems must pay attention to issues of accessibility and equity.

Page contents

Where is a good place to start?
Non-state justice and security systems
DFID Workshop papers
What other resource are available from the GSDRC?
Additional information resources

Where is a good place to start?

Department for International Development, 2004, 'Non-State Justice and Security Systems: A Guidance Note', March, DFID, London
Non-state justice and security systems deal with the majority of disputes in developing countries and are an important complement to formal state justice. What is the best way for donors and governments to engage with them? What are the policy options that increase security and justice for the poor and marginalised? This guidance note from the Department for International Development explores this issue drawing on examples from Africa, Asia and Latin America.
Full text available online

Non-state justice and security systems

Non-state justice systems include local customary leaders, such as chiefs in many African countries, community organisations, such as street committees in urban areas, and alternative dispute resolution systems. They are often the closest justice system for people living in rural areas. They also tend to address issues that are most relevant to poor people, such as land and property rights and the resolution of family and community disputes. Equality of access and human rights can be a concern as non-state institutions may discriminate against women or marginalised groups.

The issue of how donors should engage with non-state justice institutions is examined in the following three documents:

Golub, S., 2003, 'Non-State Justice Systems in Bangladesh and the Philippines', DFID, London
This paper examines non state justice systems (NSJSs) in Bangladesh and the Philippines. Lessons are identified that will assist DFID practitioners in deciding whether and how to engage with NSJSs. The paper stresses that these systems can take many forms and they produce variable outcomes in respect of equity and fairness. Importantly, certain forms of NSJSs can offer important checks and balances in poor societies, offering security for vulnerable groups.
Full text available online

Faundez, J., 2003, 'Non-State Justice Systems in Latin America. Case Studies: Peru and Colombia', Paper prepared for the DFID Workshop on 'Working with Non-State Justice Systems', 6-7 March 2003
Do non-state justice systems (NSJS) enhance or undermine poor people's access to justice? Can they complement formal state justice and governance systems? This paper by the University of Warwick analyses NSJSs in rural Peru and urban Columbia, concluding that they work better in rural areas due to greater community cohesion and different political contexts. Better understanding of NSJSs and their interaction with formal legal and governance systems is urgently needed.
Full text available online

Penal Reform International, 2001, 'Access to Justice in Sub-Saharan Africa: The Role of Traditional and Informal Justice Systems', Penal Reform International, London.
Access to Justice in Sub-Saharan Africa examines the role played by informal and traditional justice systems regarding access to justice. Examples are provided from Sub-Saharan Africa, in addition to South Asia (India and Bangladesh).
Full text available online

The following two documents provide an in-depth analysis of the accessibility and fairness of non-state justice institutions in Malawi and India.

Scharf, W., Banda, C., Roentsch, R., Kaunda, D., and Shapiro, R., 2002, 'Access to Justice for the Poor of Malawi? An Appraisal of Access to Justice Provided to the Poor of Malawi by the Lower Courts and the Customary Justice Forums'
To what extent do the poor have access to justice in Malawi? How can access to justice be improved in this context? This report, commissioned by the UK Department for International Development, analyses these questions with specific focus on the lower levels of the justice system - the subordinate and the traditional Courts. It suggests policy alternatives to better link formal and informal justice systems and recommends new approaches to improve overall accessibility.
Full text available online

Galanter, M. and Krishnan, J.K., 2004, 'Bread for the poor: access to justice and the rights of the needy in India', Hastings Law Journal Vol. 55 No. 4
At the beginning of the 1980s India introduced the Lok Adalat (People's Court) system. It was intended as a vehicle for settling disputes in a traditional manner at the grassroots level. But does Lok Adalat deserve the support it enjoys amongst politicians and judges in India? This study by the London School of Economics examines several different types of Lok Adalats. It concludes that the claim that this forum offers participants speedy, fair, deliberative justice needs serious reconsideration.
Full text available online

The following GSDRC helpdesk report looks at examples of alternative localised governance systems in relatively tribal environments that have delivered effective, consent-based rule of law.

GSDRC, 2007, 'Governance in tribal environments', Helpdesk Research Report, GSDRC, Birmingham
Unlike modern structures, the legitimacy of traditional leaders is not rooted in constitutions and electoral processes, but in inheritance or other historical mechanisms of leadership selection. The functions of these traditional structures can include security; dispute resolution; justice; regulation of social life and norms; small-scale community development projects; natural resource management; and social protection of the most vulnerable. Some of the mechanisms include tribal chieftains or leaders, customary courts, and participatory decision-making bodies. A key area of debate in relation to traditional and informal justice systems is whether justice can be made more accessible by encouraging such systems, by adopting or transforming some of their processes, or by facilitating a more collaborative approach between such systems and formal justice systems.
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Legal pluralism has become an important issue in many South American countries since democratisation and the new constitutional status of indigenous customary law.

Lee Van Cott, D., 2000, 'A Political Analysis of Legal Pluralism in Bolivia and Colombia,' Journal of Latin American Studies, No. 32, pp 207-234.
What has been the experience of implementing legal pluralism - the simultaneous existence of distinct normative systems within a single territory – in Latin America? What are the most important factors affecting the practical realisation of legal pluralism? This paper from the University of Tennessee compares recent efforts in Bolivia and Colombia to implement new constitutional provisions that recognise the jurisdiction of indigenous authorities over the administration of justice within specific territorial units.
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Non-state security systems include vigilante and neighbourhood watch organisations set up in local communities. Such organisations can be essential for poor people whose livelihoods are threatened by theft of private property. However, there are human rights risks where such organisations administer punishments without due process. The level of local legitimacy and inclusiveness of non-state security systems is important as they range from community groups to protection rackets and organised crime. In addition, private security companies are increasingly operating in countries where state law enforcement is inadequate, with implications for the security gap between the rich and poor.

Shaw, M., 2002, 'Chapter 6: The Impact of Private Policing,' in Crime and Policing in Post-Apartheid South Africa: Transforming under Fire, C Hurst & Co, London
Despite a peaceful transition to democracy, post apartheid South Africa has experienced a dramatic increase in violent crime. This trend has been met by a rapid increase in private security companies providing services to the suburban middle class. This chapter explores the nature of the private sector boom and its role in achieving justice and security in South Africa.
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Despite growing recognition of the importance of local, non-state security and justice providers in reaching the poor and of the inadequacy of state systems, donors and international organisations are still hesitant to rely on non-state providers. The articles below stress that various links between state and non-state actors in the security and justice sector already exist in the South (e.g. sharing of intelligence, sharing of equipment and training, sharing of operations), and that external actors should seek to draw on and strengthen them.

Baker, B., 2010, ‘Linking State and Non-State Security and Justice’, Development Policy Review, vol. 28, no. 5, pp. 597-616
How extensive are links between state and non-state security and justice providers? Should such links be supported, and if so, how? This study argues that state and non-state links abound, even creating hybrid institutions. Given that state- non-state links strengthen existing systems (rather than trying to build new Western ones), they seem an appropriate approach to security and justice in the South. Security and justice provision would be transformed if programmes, recognising the multiple layering of providers, were to build bridges across those layers.
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Baker, B., 2010, ‘Non-state Policing: Expanding the Scope for Tackling Africa’s Urban Violence’, Africa Security Brief, no. 7, Africa Centre for Strategic Studies, Washington, DC
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The following paper discusses examples of initiatives that have drawn on the respective strengths of state and non-state legal systems, and outlines a framework of policy options for such programmes.

Toomey, L. T., 2010, 'A Delicate Balance: Building Complementary Customary and State Legal Systems', The Law and Development Review, vol. 3, no. 1, article 6
This paper argues that, given the empirical evidence on the high level of recourse to customary law, customary legal systems are integral to development, and that both customary and state legal systems have a role to play in a functional justice sector.
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DFID workshop papers

In March 2003, DFID held a workshop on ‘Working with Non-State Justice Systems’. The background papers can be accessed below:

Reconciling Justice: 'Traditional' Law and State Judiciary in East Timor Tanja Hohe and Rod Nixon
Non-state Justice Systems in Bangladesh and the Philippines Stephen Golub
Non-State Justice Systems in Southern Africa: How should Governments Respond? Wilfried Schärf
Review of Experience in Engaging with 'Non-State' Justice Systems in East Africa Celestine Nyamu-Musembi
Non-State Justice Systems In Latin America: Peru and Colombia Julio Faundez

What other resources are available from the GSDRC?

The GSDRC topic guides on 'conflict' and 'fragile states' and the 'transitional justice' section of this guide include information on non-state systems which will be of interest.