Traditional & Informal Justice Systems: Definitions & Conceptual Issues
The study of traditional and informal justice is marked by a panoply of terms such as "traditional," "customary," "indigenous," "informal," "non-state," "local, "community," "popular," "participatory," often conflated in both discourse and practice. In some instances they essentially seek to capture the same social phenomenon, while in others their meanings are quite different. This section explains those specificities and the reasons for the choice of the expression "traditional and informal justice systems" as the most encompassing. It also explores further different ways of understanding the notion of "tradition" as well as the different connections and disconnections between "informal" and "formal" systems. It ends by summarizing the different dichotomies at play on that topic.
Another way to define informal justice is to refer to its key attributes. It "is said to be unofficial (dissociated from state power), noncoercive (dependent on rhetoric rather than force), nonbureaucratic, decentralized, relatively undifferentiated, and non-professional; its substantive and procedural rules are imprecise, unwritten, democratic, flexible, ad hoc, and particularistic. No concrete informal legal institution will embody all these qualities, but each will exhibit some."2
The main problem with qualifying a justice mechanism as "informal" is that the term may imply that it is simplistic, inferior, or ad hoc, lacking in substantive or procedural guidelines. In fact many of these justice mechanisms apply a highly developed system of rules and follow well-established procedures.3
Informal vs. traditional justice
There is an important distinction to be made between "traditional" and "informal." Some "traditional" justice mechanisms in post-conflict settings are not "informal" in the sense of being outside the legal framework of the state, but are instead incorporated into the formal justice system. A clear example of this are the gacaca courts in post-genocide Rwanda, which, though conceptually based on pre-colonial customs of dispute resolution, applies codified state law.
An "informal" justice system is not necessarily a "traditional" one either, in the sense of being deeply rooted in the history of a particular community or locality. For example, the Rondas Campesinas in rural Peru are "informal" institutions, meaning existing outside the legal framework established by the state. However, they were created in the 1980s to respond to problems of cattle rustling, and thus were not rooted in long term history or "traditional."
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Traditional justiceGenerally speaking, peacebuilders consider practices to be traditional if they have been practiced for an extended period and have evolved within a society rather than being the product of external importation.4A key publication on traditional/informal justice in sub-Saharan Africa defines traditional justice systems as "non-state justice systems which have existed, although not without change, since pre-colonial times and are generally found in rural areas."5 This definition can be applied to other contexts, albeit with some adjustments due to the differences in historical trajectories. In all cases, it is important to note that the term "traditional" does not mean static or unchanging, but rather refers to mechanisms which, by essence, are susceptible to almost continuous change. Colonizing authorities and processes of modernization, civil war or genocide, in particular have had deeply disturbing effects on the original institutions.6 So, the notion of "tradition" has to be understood in a much more flexible way than the customary use of the word might imply.
Indigenous justiceClosely related to traditional justice is the term "indigenous." In some of the literature on traditional justice in post-conflict societies, "indigenous" is employed as a synonym to "traditional," meaning a justice practice that is rooted in the historical experience of a particular locality. In some parts of the world (for example, in Central and South America) "indigenous" has a more specific meaning, referring to the ethnic groups who lived there prior to European colonization. In some contexts, therefore, it may be more appropriate to speak of "endogenous" (defined as "arising from within" a particular community or locality) rather than "indigenous" justice mechanisms.
Customary justiceTraditional justice system is often conflated with the customary laws that it applies; conventionally understood as consisting of a communitys historically generated rules and norms. Customary laws are usually unwritten, passed down orally from generation to generation and "derived from the mores, values and traditions of indigenous ethnic groups."7 Here again, some analysts have stressed the strong influence of colonization. In some instances, so-called "customary law" may have been essentially invented by colonial rulers and their local counterparts, to "order" colonized communities according to colonial imperatives.8 The essentialist notion of organically generated customs may thus be more a figment of our imagination and the product of colonialism than a historical accurate depiction of "customary law."
Local justiceSome scholars and practitioners prefer to use the term "local" because of its apparent neutrality (in particular in comparison to "traditional" and "informal"). Others see a pragmatic value in this term. By using the term local, which suggests immediacy both temporally and spatially, scholars and practitioners seek to bypass the thorny debate about what is "traditional." The key element, in this view, is to observe what justice practices are being carried out by people in a particular post-conflict community.
Despite the merits of this approach, the term "local" seems to lack precision. In particular, it does not tell us whether a non-state justice practice is informal, traditional, and the nature or degree of its association with the formal justice system. In addition, in the language of international law, "local" may mean national or state law, whereas nationals may see "local" as referring to the community.
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Understanding traditional justice through its broader social functionThe term "traditional justice" should not be understood in a narrow juridical sense to mean only the administration of justice; traditional justice in post-conflict settings encompasses a wide array of social goals including accountability, truth-telling, reparation, and reconciliation.9 In contexts where there is no clear separation between justice (retribution), reconciliation (restoration), and healing, these social goals are seen as inextricably linked together and part of a whole. "Rather than focusing on the particular rules applied in situations of dispute, this perspective examines the ways social groups conceive of ordering, of social relationships, and of ways of determining truth and justice. Law is not simply a set of rules exercising coercive power, but a system of thought by which certain forms of relations come to seem natural and taken for granted, modes of thought that are inscribed in institutions that exercise some coercion in support of their categories and theories of explanation."10
As such, traditional justice in post-conflict societies is equally concerned with issues of community reintegration, the peaceful coexistence of former antagonists, and the psychosocial recovery of war survivors. In sum, "traditional justice" could very well mean "traditional approaches to justice and reconciliation," "community-based/level reconciliation," or "indigenous conflict resolution." Moreover, traditional and informal justice systems are often broader forms of governance that go beyond dispute resolution as their leaders and operators may be also involved in the day-to-day functioning of their village or community.11
Beyond simplistic, romantic and essentialist conceptions of "tradition"Traditional practices may be improperly romanticized as somehow intrinsically benign, monolithic in construction, and conducive to post-conflict reconstruction. However, customary laws "have undergone their own troubled history and evolution, and their content may not necessarily be uniformly acceptable to all citizens or communities in the country."12 Contending interpretations of traditional justice may exist, specifically in terms of its content, applicability, and objectives.
As a consequence of the varied interpretations of traditional justice, the legitimacy of "traditional" mechanisms may be called into question and serve as a central impediment to the proposed revitalization of traditional mechanisms after the violence. This may be particularly acute when extended or repetitive periods of large-scale violence have profoundly affected the society and community fabric. The dislocation of people from their homes and communities may have disrupted normal patterns of social interaction, notably disrupting the transmission of cultural knowledge and social practices to youth and children. Some traditional community leaders may no longer command respect and authority because of their perceived complicity in the war.
Some insiders and outsiders alike may have a tendency of "idealizing a more peaceful 'traditional' past or wish to reintroduce traditions that no longer exist or have been used, misused, and transformed by entrepreneurs of violence."13Additionally, in the process of rediscovery and adaptation, "traditional" mechanisms of justice undergo significant changes. "What are labeled 'returns to tradition' may in fact be inventions, recalled or resurrected ideas layered on and informed by new information. They should be understood as such and not romanticized."14 It may be helpful to instead think of "tradition" as similar to any other sphere of social life and thus inherently subject to power struggle. Therefore, careful examination of the resurgence of traditional mechanisms should be carefully assessed, particularly in terms of who benefits from and who is disadvantaged by such a proposal.
The current fascination with traditional justice in some quarters of the international community carries another risk. Saying that some people in some post-conflict societies are somehow naturally inclined toward non-judicial mechanisms of justice may be a way to suggest, however implicitly, that "they are not like us" and to paint them as essentially different, with different ways of interpreting the world and of ordering their lives. Though human and cultural diversity is a fact of life, there is a danger of creating double-standards with regard to the needs and aspirations of people in post-conflict societies. As Tim Allen writes in the context of northern Uganda, "All the talk about the Acholi forgiving those among them who have killed and mutilated can seem to reinforce the perception that they are not like other people and have their own ways of managing themselves."15
An alternative conception of tradition: dynamic, socially (re)constructed
Moving beyond the simplistic, romantic, and essentialist traps, an alternative conceptualization is one that emphasizes that traditions are dynamic--constantly changing and being changed according to evolutions in the societies in which they are embedded. As noted in an insightful ethnographic study of northern Ugandan traditional justice practices: "These practices, far from being dislocated in a past that no longer exists, have always continued to be situated socially. They are called upon and performed to address present concerns. Of course, like any culturally informed practice, with time they shift in meaning and appearance."16 In other words, innovation is part of every cultures reality, and...borrowing and grafting ideas from the outside and reshaping old concepts to new experiences are also important local strategies. 17
The notion of "invented tradition"
"Neo-traditional" justice mechanisms to address conflict crimesIn post-conflict settings, perhaps the most significant transformation is that traditional mechanisms, which were historically used to address ordinary disputes and crimes at the local level, are now used to address "serious crimes" committed in a war context. In this sense, these traditional practices are being modified and adapted to address unique post-conflict realities. Accordingly, it may be more accurate to refer to them as "neo-traditional" post-conflict traditional justice instruments as they "are simply modeled on old institutions, with changes made to make them relevant to contemporary circumstances."18 Some scholars and practitioners also use the term "tradition-based" to convey the same idea. Most of the experiences in which some forms of traditions have been recalled and adapted to answer post-conflict settings correspond to that description; for example, gacaca in Rwanda, community-based reconciliation processes in East Timor, and mato oput and other traditional rituals in northern Uganda.
[Back to Top] 19 Thus, the use of the adjective "informal" serves to make the contrast with the formal and formalistic character of state justice institutions. But at least some of the mechanisms in question acquire formal attributes once they are more or less part of the state justice system. 20
An increasingly popular term among practitioners and policymakers is non-state justice system (or non-state justice and security system (NSJS)), which is defined as "all systems that exercise some form of non-state authority in providing safety, security and access to justice. This includes a range of traditional, customary, religious and informal mechanisms that deal with disputes and/or security matters. The relationship between NSJS systems and the state vary considerably. Systems include community-based practices that are relatively isolated from the state, systems fostered by non-governmental organizations (NGOs), and systems set up by the state outside the formal justice system for a specific purpose."21 Even where not officially sanctioned to do so, in practice, the formal justice sector frequently delegates categories of cases to informal justice systems or relies upon and accommodates outcomes reached through them.22
There is a well-established academic sub-discipline known as legal pluralism, which is concerned with the study of contexts where a multiplicity of legal systems or practices exists.
Legal pluralism is defined as "a situation in which two or more legal systems coexist in the same social field;"23 more specifically, it explores the linkages between formal and informal/traditional justice systems. It is worth noting that "the term informal justice system may in some cases not capture the extent to which the state is involved in a particular justice system as this line may often be blurred.In many countries, communities that apply customary law are recognized and regulated by the state either by law, regulations or by jurisprudence, and are therefore 'semi-formal.'"24
Luc Huyse, a former professor of sociology and sociology of law at the Leuven University Law School (Belgium) who studies the role of retributive justice after violent conflict, notes that traditional or informal justice practices "are hybrids and move back and forth between their origin and capture by the state."25 It is important to note, however, that the capture of the state may not always be the prominent output. In some cases, traditional and informal justice practices may have always been either ignored or repressed by the state. Therefore, it is always important to develop a local historical understanding of the mechanisms.
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1. Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (Oslo: United Nations Development Programme, Oslo Governance Centre, December 2006), 9.
2. Richard L. Abel, "Introduction," in The Politics of Informal Justice, vol. 2, ed. Richard L Abel (New York: Academic Press, 1982), 2.
3. Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute, 9.
4. See in the African context I. William Zartman, "Introduction: African Traditional Conflict Medicine," in Traditional Cures for Modern Conflicts: African Conflict Medicine, ed. I. William Zartman, (Boulder, CO: Lynne Rienner, 2000), 7.
5. Penal Reform International (PRI), Access to Justice in Sub-Saharan Africa: the role of traditional and informal justice systems (London, November 2000), 11.
6. Luc Huyse, "Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, ed. Luc Huyse and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 7-8.
7. Minneh Kane et al., "Reassessing Customary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor" (Paper produced for the World Bank conference "New Frontiers for Social Policy: Development in a Globalizing World," Arusha, Tanzania, December 12-15, 2005), 5.
8. See for instance Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996), 49-50.
9. See Luc Huyse and Mark Salter, eds., Reconciliation and Traditional Justice After Violent Conflict: Learning from African Experiences (Stockholm: International Institute for Democracy and Electoral Assistance, 2008).
10.Merry Sally Engle, "Legal Pluralism," Law & Society Review 22, no. 5 (1988): 889.
11. Comment by Ewa Wojwoska, 25 September 2008.
12. Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge, UK: Polity Press, 2002), 81.
13. Beatrice Pouligny, Simon Chesterman, and Albrecht Schnabel, "Introduction: Picking up the pieces," in After Mass Crime: Rebuilding States and Communities, eds. Beatrice Pouligny, Simon Chesterman, and Albrecht Schnabel (Tokyo and New York: United Nations University Press, 2007), 4.
14. Roberta Culbertson and Beatrice Pouligny, "Re-imagining peace after mass crime: A dialogical exchange between insider and outside knowledge," in After Mass Crime: Rebuilding States and Communities, ed. Beatrice Pouligny, Simon Chesterman, and Albrecht Schnabel (Tokyo and New York: United Nations University Press, 2007), 273-274.
15. Tim Allen, Trial Justice: The International Criminal Court and the Lords Resistance Army (London and New York: Zed Books, 2006), 167.
16. Sverker Finnstrom, Living with Bad Surroundings: War and Existential Uncertainty in Acholiland in Northern Uganda (Durham, NC: Duke University Press, 2008).
17. Culbertson and Pouligny, "Re-imagining peace after mass crime: A dialogical exchange between insider and outside knowledge," 273-274.
18. Lucy Hovil and Joanna R. Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda (Kampala, Uganda: Refugee Law Project, July 2005), 23.
19.Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute, 9.
20.Huyse, "Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," 7-8.
21. UK Department of International Development (DFID), Briefing: Non-state Justice and Security Systems, May 2004.
22. Comment by Ewa Wojwoska, 25 September 2008.
23. Merry, "Legal Pluralsim", 870.
24. Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute, 9.
25.Huyse, "Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," 8.
26. Boaventura de Sousa Santos, "The Heterogenous State and Legal Plurality," in Law and Justice in a Multicultural Society: The Case of Mozambique, ed. Boaventura de Sousa Santos, Joao Carlos Trindade and Maria Paula Meneses (Dakar, Senegal: Council for the Development of Social Science Research in Africa, 2006), 8.