In his article ‘Why Developing Countries Prove so Resistant to the Rule of Law’, Barry Weingast notes that transplanting institutions and policies directly from developed societies into developing ones rarely helps to produce the long-term economic growth and rule of law that western donors want these countries to attain. As part of this week’s editorial plan focus on international public law in action, this blog will suggest that traditional justice systems can help build sustainable peace in post-conflict situations.
Weingast explains that the reason why western ideals of constructing fully fledged democracies under the rule of law fail to materialize lies in the fact that reform efforts do not understand the role of violence in structuring the ‘natural state’ (generally referred to as fragile state). In natural states – which most post conflict countries belong to – access to state privileges is limited to the elite, and the provision of services is limited to those that support the elite. Order and the absence of violence rest upon a system of rights and privileges that provides elites incentives to cooperate rather than fight. For those sections of society that do not belong to the elite, incentives like the provision of basic services are often used to quell unrest and maintain a semblance of stability. In such countries, the constitution is easily pushed aside for the sake of political leaders’ interests.
With an elite determined to maintain their grip on power, coupled with a population that depends on the elite for the provision of basic services, its no surprise that international post-conflict reconstruction efforts are met with suspicion and resistance. Weingast argues that donor countries forget that by dismantling the system they also undercut the system of service provision and elite cooperation that holds society together and prevents violence and disorder. Therefore, even efforts that are focused on increasing local ownership and capacity will not necessarily help to increase the effectiveness of reform packages. As Thorsten Benner remarks, local elites are often already quite ‘capable and very much in the driver’s seat – albeit driving in a different direction from that intended by the donors’.
Failing to see this, donors wonder why liberal international state-building projects have repeatedly produced illiberal outcomes. In Afghanistan, for example, international rule of law programs focused upon improving the judicial system at the central state level. With a Western model in mind, the programs strived to train legal staff, promote the independence of judges and establish a Supreme Court. Yet Veronica Taylor argues that the independent training of judges and a centralized legal system does not fare well in each and every context. She notes that judges in many Asian countries are trained together with legal personnel so as to make students aware of their shared mission to maintain and promote the rule of law at the service of the state. Again, simply exporting Western ideas does not necessarily help to improve the situation. After a decade of reform, the formal justice system in Afghanistan continues to play a marginal role across society. The traditional justice system of jirgas and shuras, on the other hand, accounts for the resolution of 80% of all criminal and civil law cases.
A way to improve justice without undermining local power structures to the extent that it endangers popular support for reforms would be to settle with lower, and more locally informed standards, based on the traditional justice systems. A good example of such an effort is the rule of law reform program in Timor-Leste. Here, like in Afghanistan, a hybrid system emerged after independence. Local justice mechanisms continued to function in parallel with the formal legal system and were generally more trusted than their formal counter-parts. The main reason for confidence in the traditional system was that it resolved conflicts according to cultural norms and heritage and was less expensive and more effective than the formal justice system. Accordingly, the government in Timor-Leste did not try to completely discard the traditional justice system. Rather than attempting to entirely displace the informal system the government, supported by the international community, began a nationwide consultation on the legal recognition of customary law processes in 2009. Customary penalties such as financial compensation are now being incorporated into the formal legal code.
The case of Timor-Leste shows that it is possible to forge a bridge between traditional and formal justice. It also demonstrates the merits of promoting hybrid judicial systems that work instead of aiming for mechanisms associated with developed states. Nevertheless, the international community needs to define ‘good enough’ justice in order to prevent hybrid systems that undermine the human rights they are supposed to promote. Fortunately, two decades of interventions have taught the international community some lessons. As Thorsten Benner notes in yesterday’s podcast, the UN is already looking at ways to combine Sharia and Islamic law with international legal standards so as to improve the effectiveness and acceptability of its Rule of Law programs.