Informal Justice Systems: Challenges and Perspectives

In large parts of the world, indigenous courts, councils of elders, and similar traditional authorities play a central role in the resolution of disputes. Despite all cultural differences, they share common features. Their relations with the state justice institutions are in many cases problematic, especially when they are not formally recognised. Nevertheless, they are perceived as legitimate institutions by local populations. Therefore, more recent strategies that aim at building the rule of law and improving access to justice include informal justice institutions as important stakeholders. In most cases, however, their positive potential can only be effectively used if they are reformed and linked to state institutions. This will be especially important in order to ensure that basic human rights standards are met. The inclusion of informal justice institutions will lead to a more comprehensive approach towards building the rule of law. Visible changes should however not be expected in the short term.

Informal justice systems have lately received much attention among rule of law theorists and practitioners. The notion refers to a variety of institutions that serve to resolve disputes and relate to social practices distinct from official state policy. Informal justice systems may be run by traditional or religious authorities, elders or other respected community members. They are “informal” in the sense that they apply non-state methods of conflict resolution. Nonetheless they may be obliged to adhere to state law, and they can even be formally incorporated into the state court system, such as the Ethiopian Kebele Social Courts that are formal state organs that provide court-like decisions applying shimglina, a traditional mechanism of arbitration. But even if the law formally recognises and incorporates them, these institutions stand out of the official state and are perceived as “informal” by the people. Informal justice systems have existed in almost all societies and in all times. The paper Informal Justice Systems: Challenges and Perspectives focuses on the phenomenon in the development context of today.

Informal justice institutions may be regarded as part of the overall governance system. The phenomenon is discussed mainly with regard to cases in Africa, Latin America, and South Asia. Many observers point to the practical needs of rural populations when explaining the popularity and functionality of informal justice institutions. Rural populations often have better access to informal justice systems than to the state judiciary and they prefer them for a number of significant reasons: typically, the procedure takes place on site, it is more or less free of cost and less prone to corruption, it is exercised by trusted people in the language everybody speaks, and decisions are taken according to rules known to all community members. Informal procedures typically aim at restoring social peace instead of enforcing abstract legislation. They are consent and justice oriented. In this sense, informal justice systems allow for better “access to justice”.

Apart from these common features, informal justice institutions are, in large geographical areas, the only choice due to the absence of the state. This is often the case in regions where colonial powers did not attempt to establish formal court systems, such as North Yemen or Afghanistan. In the situation of armed conflict, informal justice institutions often gain more importance due to the breakdown of the formal court systems. In post-conflict societies they can play a crucial role in the stabilisation and reconciliation process.

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Informal Justice Systems: Challenges and Perspectives is part of the Innovations in Rule of Law - A Compilation of Concise Essays produced by the WJP and Hiil.