Traditional Local Justice, Women’s Rights, and the Rule of Law: A Pluralistic Framework

• Author: Alessandra Facchi
• DOI: http://doi.org/10.1111/raju.12235
• Date: 01 June 2019
• Published date: 01 June 2019

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 2 June 2019 (210–232)

Traditional Local Justice,

Women’s Rights, and the Rule of Law:

A Pluralistic Framework

ALESSANDRA FACCHI

Abstract. The paper focus es on the application of a particular conce ption of the rule of law to

situations charac terized by traditional lo cal justice and legal plural ism. While in the t wentieth

century inter national rule-of-law programmes were d irected almost exclusively at state legal

system, they have recently beg un to take into account traditional local ju stice, namely, those

institution s which in many world regions repres ent the main form of effect ive justice. Starting

with a review of the positive a nd negative aspects of traditional lo cal justice from a rule -of-law

perspective, the paper underl ines the widespread lack of protect ion of human rights, particu-

larly of women’s rights. Discussing vert ical rule-of-law funct ions in contexts of legal plurali sm

the paper stresses t he advantages of an approach to the promotion of the ru le of law based on

mutual recognit ion and influence betwee n different legal authorities and s ources. It is argued

that this “interact ive” approach appears best suited to the complex f rameworks of relations

that characteri ze present-day systems of deep legal pluralism. Fina lly, the paper underlines

the correspondence be tween this approach a nd a conception of the ru le of law as an ideal

framework of plural interaction s characteriz ed by the limits imp osed on the law by the law

itself, and it discus ses its advantages from the persp ective of human rights and women’s rights

promotion.

1. The Turn in Rule-of-Law Program mes

The dissemi nation of the rule of law is one of the object ive principles guiding the

action of the United Nations, international agenc ies, and NGOs. A number of studies

and programmes have been car ried out to reform the legal systems of non-Western

countries under the aegi s of the rule of law.1 The most common objectives are to

1 To “[p]romote the rule of law at the nationa l and international levels a nd ensure equal access

for all” is part of the Unite d Nations 2030 Agenda for Sustainable Development (UN General

Assembly 2015, goal 16.3). See also “Transforming Our World: The 2030 Agenda for Susta inable

Development,” at https://sustainabledevelopment.un.org/post2015/transformingour world.

Rule-of-law promotion is pursued by t he United Nations Development Programme (2019) and

by other internation al agencies, but also by private foundations and i nstitutions; as examples,

see the work of the rule- of-law programme promoted by KAS (Konrad-Adenauer-Stift ung), at

ht tp://ww w.k as .d e/rlp se e/en/.

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Ratio Juris, Vol. 32, No. 2 © 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Traditional Local Justice

enhance legal cert ainty and publicity, access to justice, the right of appeal, and other

procedural gua rantees.

The promotion of the rule of law is often accompan ied by other objectives, first

and foremost the protection of fu ndamental human rights, women’s rights, and gen-

der equality, but also fair access to land, food secu rity, basic welfare, economic sup-

port, and the like.2 Even when the rule of law and huma n rights are kept conceptually

distinct, they are of ten brought together in international actions w ithin complemen-

tary perspectives.

The “rule of law” is a concept at the very hea rt of the Organizat ion’s mission. It refers to a prin-

ciple of governance in which a ll persons, institutions a nd entities, public and private, includ-

ing the State itself, are accou ntable to laws that are publicly promulgated, equ ally enforced

and independently adjudicated, a nd which are consiste nt with internationa l human rights

norms and standa rds. It requires, as well, measures to ensure ad herence to the principles of

supremacy of law, equality before the law, accountability to t he law, fairness in the application

of the law, separation of powers, participation in deci sion-making, legal certaint y, avoidance

of arbitrarines s and procedural and legal trans parency. (Kofi Annan in UN Secu rity Council,

2004, § 6, p. 4)

Initiatives aimed at diss eminating the rule of law in the world have been dominated

by the notion of the law as state law with the mai n characteristics of Western legal

systems: centralization, wr itten rules, a hierarchy of sources, separation of the legis-

lature from the judiciar y, and so on. In the majority of cases, actions have been

directed at state law and national i nstitutions: Supranational agencies h ave tended

to disregard both customa ry and religious ru les, local informal bod ies, or institu-

tions for admi nistering justice.3 Even when reforms have considered nonstate inst i-

tutions, they have mostly drawn inspiration f rom models shaped for the centrali zation

and formalization of t he law, seek ing to incorporate the local institutions i nto a uni-

tary, national framework, requiring or encouragi ng the abandonment of traditional

norms, procedures, and courts.

Over the centuries, in stitutions of traditional loca l justice have demonstrated

great resilience: Despite efforts m ade first by colonial administration s, then by inter-

national institut ions and national governments, in ma ny regions the model of the

centralized and u nitary state legal system has never really established itsel f. Ethnic,

religious, or tribal origi n can still be more significant tha n national belonging, and

state institutions do not have a strong presence, espe cially in rural areas and in the

2 United Nations Women declares th e strengthening of the rule of law to be o ne of its goals,

under three ma in programmes: improving women’s access to justice, preventing sex ual vio-

lence and crimes i n conflict, and securi ng justice for survivors in post-conf lict countries. See

http://www.unwomen.org/en/what-we-do/peace-and-security/ru le-of-law-and-justice.

3 The World Justice Project (WJP) does not in clude informal justice in its Rule of Law Index,

specifyi ng: “While WJP has devoted sign ificant effort to collect ing data on informal just ice in

a dozen countries, the complex ities of these systems a nd the diffic ulties of measuri ng their

fairness and e ffectiveness in a m anner that is bot h systematic and comparable acros s coun-

tries, make ass essments extraordi narily chal lenging” (WJP, “Informal Justic e (Factor 9),”

https://worldjusticeprojec t.org/our-work/wjp-rule-law-index/wjp-rul e-law-in-

dex-2017–2018/factors-rule-law/informal-justice-factor-9, accessed Feb. 14, 2019).