It was also entirely oriented on the state justice system.
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It was not very successful, however, in creating state legal systems and in replacing non-state justice systems. A clear case was East Timor. Chopra, C. Ranheim and R. Farrall eds. In his final report to the Security Council before independence, the Secretary-General had to admit that the state justice system failed to deliver justice in crucial matters such as violent crime, land disputes and the prosecution of serious human rights violations. Meanwhile, a widely publicised report by the Asia Foundation found that while citizens distrusted and did not feel protected by the state legal system, 94 per cent of respondents were confident in community-based justice systems and 77 per cent stated that local process was in accordance with their value systems.
In view of these and other experiences, it is no surprise that the UN Secretary-General, in his report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, for the first time emphasised the importance of taking non-state justice systems seriously. A last group of donors that came to appreciate the importance of non-state justice systems is military counter-insurgency.
When George W. See, our view of the military is for our military to be properly prepared to fight and win war […]. A few years later, after facing massive insurgencies in in Afghanistan and Iraq, the US military became engaged in the largest military state-building operation since the years immediately following World War II.
Rule of law promotion was an important component in this doctrine. Nollkaemper and R. Peerenboom eds.
Petraeus and J. It was clear that the military understood rule of law promotion as an effort to establish state legal systems. As FM explains,. Such government respect for rules — ideally one recorded in a constitution and in laws adopted through a credible, democratic process — is the essence of the rule of law. As such, it is a powerful tool for counterinsurgents. Initially, rule of law promotion on steroids, as development practitioners like to call it, thus focused entirely on strengthening the state legal system.
Counter-insurgency, under the new doctrine, essentially meant outgoverning the enemy, and it was thought that this required enhancing the capacity of the state to deliver justice and security so that people would choose sides for government rather than for the insurgents. In , however, when tribes massively revolted against al-Qaeda in al Anbar in Iraq, it became clear to the US and Coalition forces that they could not secure victory and stability if they ignored tribal leaders and tribal culture.
Hence, they cemented an alliance with the Iraqi government and the tribes. This did not lead to an abandonment of efforts to strengthen the state legal system.
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On the contrary, tribes were asked to respect and guarantee the authority and supremacy of the state legal system. But in return the jurisdiction of tribal customary law in many areas was recognised. The importance of non-state justice systems thus dawned upon all the important players in the worlds of legal assistance: the development community, high-level diplomacy and the defence establishment.
This does not mean, of course, that these communities have joined hands in developing new strategies to engage with non-state justice systems. But it does explain why legal pluralism is so high on the agenda now and why continued attention and spending is to be expected in the years to come. This makes it all the more important to understand why the three Ds did not see legal pluralism before and whether they have indeed addressed the issues that led to their disregard.
There are different reasons why donors have long been blind to the reality of non-state justice systems. These reasons are not mutually exclusive. They do not apply to all donors in all regions. They are not mentioned in any particular order. They are broad generalisations. The first is amnesia. Donors are easily excited about ideas that promise to end poverty, terrorism, insurgency, and other problems in foreign and development policy.
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They dislike the notion that almost all the big ideas have been tried before and that their results were, at best, mixed, modest and dependent on context-specific circumstances. Many academics have pointed this out with respect to rule of law promotion in general 34 x Taylor, above n. There are different reasons for this forgetfulness. One is a lack of institutional memory in development and foreign policy organisations, where civil servants seldom work on portfolios with rule of law for more than a few years; knowledge management is non-existent or underdeveloped, and, indeed, knowledge sharing is actively discouraged 38 x Channell, above n.
In addition, it seems as if donors are not interested in putting problems and solutions in historical context. Although they regularly sponsor academic work on whether new ideas have been tried before, and if so, where, how, and with what results, it is unclear how, if at all, this information is taken on board in policy-making.
Policy papers on rule of law are usually about current and future problems and solutions and pretend they do not have a past. The second factor is operational. Much has been written about shortcomings in the organisation and delivery of rule of law assistance. In addition, particularly with respect to legal pluralism, see C. Some of these explain why attention has largely focused on the state legal system.
Also, they are often restricted to the capital or to easily accessible cities and areas where the state legal system has some presence. Furthermore, lawyers are strongly involved in the making of programs, and lawyers, unlike anthropologists, are not trained to understand the nature and functions of non-state justice systems, nor do they have a professional interest in advising to divert attention from the state legal system to non-state justice systems.
Ongoing education and training could go some way to remedy these defects, but education and training in legal reform is virtually absent and ongoing education and learning does not exist. To obtain approval and funding for projects, it is imperative to present persuasive and accessible narratives, preferably accompanied by bullet points, matrices, tables and graphs, of how interventions will meet a limited and measurable set of targets within the next three to five years, which is not conducive to initiatives that cautiously seek to understand and engage with multiple and multifaceted non-state justice systems.
Also, state legal systems are characteristically understaffed and under-resourced in developing countries, so that recommendations to invest in this system always seem to make good sense. The third factor is legal centralism or state-centrism. Rule of law promotion has always proceeded on the assumption that the paradigm case of law consists of an idealised version of modern municipal law in the Western world.
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Law, in this view, is the law of the state. It is produced by state bureaucratic institutions, impersonally applied by the state to all its subjects and exclusive of all other law. This legal centralist paradigm can rest on various types of claims. It can be based on the empirical assertion that only the state is capable of providing social order, on the legal-normative claim that the state has supreme authority in a given territory and the legitimate monopoly on the use of force and the delivery of justice and security, or on the ideological claim the state offers the best hope for the realisation of economic development, democracy, human rights and the rule of law.
Rule of law promotion, and state-building more generally, is usually based on all of these claims. Its underlying belief is that function follows form: if legal systems in developing countries look like legal systems in Western countries, they will start to do the same things. Pritchett, M. Andrews and M.
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Woolcock, 'Capability Traps? Within this legal centralist paradigm, it is not possible to regard non-state justice systems as law. They are at best rudimentary and primitive forms of law, not to be taken seriously for organisations that aim to improve the delivery of justice and security in developing countries. At worst, they undermine efforts to establish or strengthen the legal system, and must be eradicated, marginalised or completely subjected to state law. For commentary on the metaphors, see S. Legal centralism, quite literally, blocks the view to the reality of non-state governance and law.
The difficulty of taking non-state law seriously is even greater when rule of law promotion is not simply understood as legal reform, but has the more elevated meaning of furthering the ideal of rule of law. It already requires a stretch of the imagination to apply the ideal of rule of law to international law. International lawyers and legal theorists, too, continue to struggle with whether the notion of rule of law can fruitfully be applied to international law. It is even less clear how rule of law might be applicable to forms of regulation, dispute settlement and enforcement with which the state, government officials and legal professionals have little or nothing to do.
Indeed, is seems as if discussion of the relation between rule of law as an ideal and legal pluralism in developing countries has only just began and is still tentative and exploratory. Against this background, it is not surprising that donors have not been able to reconcile their professed commitment to rule of law with attention for and engagement with non-state justice systems. The fourth factor is political. Programs to promote rule of law are often the result of negotiations and agreements between donors and the governments, mostly the executive branch and sometimes also including legislature and judiciary, of recipient countries.
In many cases, governments of recipient countries have an interest in strengthening the state legal system, but little or no interest in outside engagement with non-state legal systems. Legal systems in developing countries usually lack such characteristics as sufficiently funded and equipped institutions, a well-educated legal profession, a substantial body of legal knowledge, broad acceptance of the system among officials and the citizenry and effective law enforcement. It is understandable that high-level government officials seek assistance that helps them to strengthen the legal institutions of which they are in charge.