There has been a growing trend of interest in informal justice systems, primarily based on the idea that they are more accessible and supported by local communities. However, due to a lack of guidance and best practices on how to engage informal justice systems, many practitioners operate under the assumption that its advantages outweigh any failure to comply with human rights standards, particularly those related to women’s rights.
The dilemma this poses has resulted in two primary approaches. The first assumes that informal systems are inherently and irremediably inconsistent with women‘s rights and therefore the formal system must be the primary, if not the sole forum for adjudicating disputes involving women. This approach calls for strengthening the capacity of the formal system, removing the authority of informal justice providers on these matters, and promoting women‘s use of and access to formal courts. The second approach seeks to engage with informal systems with the aim of transforming them to comply with international standards, while retaining the positive features of accessibility, familiarity and effectiveness. They tend to focus on training and awareness, introducing formalized approaches, and instituting regulation and oversight.
The chapter discusses and analyses the limitation of these two approaches. It argues that they are both flawed in taking the systems – formal or informal – as their entry point. They assume that these systems can be ‘fixed‘ into desired and known end states through legal and capacity-building support. What this fails to take into account is that neither system exists in isolation from the underlying socio-economic, cultural and political context that determines the very real gender inequality and power asymmetries. Justice institutions and processes are a reflection of the fundamental inequalities in society. Efforts to make informal systems embrace gender equality tend to be fruitless unless they engage with deeper processes of social change.
The chapter also presents an alternative way of problematising women‘s access to justice and corresponding ways of addressing the inequality. Rather than focus on selecting, promoting or changing the formal or informal justice systems, the chapter argues that interveners need to embrace processes of social change as the means for instituting legal change. The argument is based on the view that access to justice in legally plural environments needs to be understood from the perspective of the user. Rather than examine distinct systems, formal and informal, as entry points for the analysis, this section begins with an empirical understanding of how women use and experience the justice options available to them.
The analysis is guided by the notion that for positive change to be sustained in favor of women‘s equality and rights, it needs to be socially embedded. Here, legal orders are understood as the reflection of social norms and dynamics, which implies that they are not static, but the product of continuous processes of social and political contestation. Thus, supporting women and women‘s rights through these processes of contestation is the most constructive avenue to promoting legal orders that reflect positive social change and that constitute a legitimate and durable framework for social order.
Recommendations:
- More documentation of reform strategies and an evaluation of their impact are needed.
- Donors and advocates should stop focusing on customary justice systems as such. They should try instead to understand and engage with the processes of contestation and social change through which power relations and rights are mediated.