Legal pluralism

What is legal pluralism?

Roseveare (2013) defines legal pluralism as ‘the existence of multiple sources of law (both state and non-state) within the same geographical area. Although the rule of law is often represented as law being made and administered by the state, a growing body of literature suggests that the provision of a range of different legal and quasi-legal security and justice mechanisms creates choices for individuals, communities, and even the state itself’ (p. 39). The UN (2011a, p. 67-68) identifies three broad types of legal pluralism:

  • Non-state legal orders: These exist in every country in parallel with the state system. They are not formally recognised or state-sanctioned. For example, conflict resolution mechanisms include informal village jirgas (councils) in Afghanistan and Pakistan and forums run by street committees in Brazil.
  • Formal legal pluralism: In many countries in the Middle East, South Asia and South-East Asia, for example, family and some property matters are governed by different laws for different religious or ethnic communities. In some African countries, women married under the customary, religious, civil or common law system are subject to different state-recognised laws on inheritance and property rights.
  • Quasi-state legal orders or state incorporation of non-state legal orders: For example, many African states have incorporated customary chiefs or local power-holders as the lowest tier of decentralised state legal systems. Alternative dispute resolution mechanisms are increasingly used to provide services where formal state capacity is weak or overburdened.

Linkages between state and non-state actors

Legal pluralism produces hybrid or mixed legal environments where state, local and non-state actors are linked and the lines between them are blurred (Roseveare, 2013). Security and justice actors can be viewed as ‘lying along a spectrum between the state and the purely informal’, where legitimacy is determined by factors including the degree of authority granted by the state (Zurstrassen, 2011, p. 117).

In most contexts, there will be certain functional linkages, where state law provides for official forms of collaboration (including appeal procedures, referrals, division of labour, advice, and assistance). Where this is not the case, there may be various forms of unofficial collaboration. Linkages may also be negative, with competition over jurisdiction stretching to opposition or hostility.

Apart from functional linkages, there are often instances of overlaps of norms, rules and procedures, which are based on interaction and coexistence over time (UNDP, 2012).It is common for state actors such as the police, judges and magistrates to collaborate with non-state actors by sharing intelligence about crime; sharing equipment and training; conducting joint patrols and operations; and delegating police work to non-state actors (Baker, 2010).

The importance of non-state provision in fragile and conflict-affected contexts

In fragile states, non-state actors are the main providers of safety, security and justice (OECD-DAC, 2007a, p. 6). This may be because:

  • State provision is unreliable: Fragile and conflict-affected states lack the financial, human and physical capital to deliver effective and accountable safety, security and justice (Baker & Scheye, 2007).
  • State provision is ineffective: The settlement of cases can take a long time due to bureaucratic procedures and the necessity of hard evidence (UNDP, 2012).
  • State provision is inaccessible: State providers might not speak the local language, are often located far from communities, and can be expensive (Derks, 2012). Evidence from Bangladesh, Ecuador, Malawi, Niger, Papua New Guinea and Uganda demonstrates that even when people are located close to state courts and the police, various forms of non-state and informal provision are still the preferred option (UNDP, 2012).
  • Inappropriate outcomes: States actors such as the police, prosecutors and state courts may be seen as overly retributive, whilst people may prefer restorative justice applied by non-state actors (UNDP, 2012).
  • Lack of trust in state providers: State institutions in fragile and conflict-affected states are often captured by political and criminal interests or discriminate against segments of society (Desai et al., 2011). They may be seen as illegitimate in some contexts due the history of state-citizen relations. Non-state providers are seen as more legitimate because they are part of local communities and serve their interests (UNDP, 2012).

Religion and legal pluralism

Religious officials or leaders often settle disputes in settings of varying formality. However, there are few examples of religious courts on matters affecting normal citizens outside of Islam. In many countries, Muslims rely on shari’a courts to settle various questions, particularly those of family law and inheritance. The application of Islamic law and its relation to the state varies. Many secular states with large Muslim communities employ formal legal pluralism, whereby state law incorporates tenets of Islam to govern matters of family law and personal status. In some cases, links between religious leaders are unofficial but deeply embedded. Other countries permit the legal recognition of settlements reached by religious bodies or officials. Some states offer a choice between civil or religious marriage and family law regimes. These are all distinct from countries that explicitly adhere to Islam, where shari’a-based penal laws are in force (UNDP, 2012, pp. 58-59).

The codification of customary law

Codification has been seen as a means of standardising and modifying customary law while remedying human rights deficiencies (Chopra & Isser, 2011). Advocates of codification argue that it could increase the external recognition and legitimacy of customary practice, but others have highlighted the need for flexibility and development in local and non-state provision (Baker, 2010, p. 611). However, evidence suggests that codification is expensive and does not lead to better outcomes, especially for women and vulnerable groups.

Codification in South Sudan

South Sudan’s experience demonstrates that codification is likely to reinforce the power of the local elite. Even ‘self-statement’, when communities record customary law themselves, does not enhance women’s voices. Prohibiting discrimination in customary law can produce a law that looks good on paper, but that is unlikely to be enforced or to change social norms. Moreover, the flexibility of customary law provides space for contestation and adaptation, including by women; codification reduces women’s opportunities to redefine norms.

Source: Chopra and Isser (2011, p. 30-32)

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