Informal Justice Systems: Charting a Course for Human - UN Women

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the definition also imposes certain necessary limitations. systems of great importance for the maintenance of law
and order, local security and ‘protection’ are not within the scope of this study. 2 Because the distinction between
security and justice in informal systems can be very fluid, this limitation is unavoidable. the country studies looked
at rural or peri-urban areas rather than typically urban settings. the limitations that this causes for the kinds of systems
studied are likewise acknowledged; for example, phenomena such as ‘town chiefs’ are not studied in depth.
the study also does not deal with systems used by outlawed organizations or ad hoc groups for maintaining internal
order. While the administration of sets of rules by commercial or professional organizations could in principle
fit into the definition, such systems did not form part of the study. the definition also excludes processes and
practices by formal justice sector actors who may employ alternative dispute resolution (aDr). 3 While this study
does not treat these as ijs, the country studies and the main study analyse linkages between formal and informal
justice processes.
formaLity and informaLity
it is more correct to speak of a continuum between informal and formal justice providers or systems than of a sharp
set of distinctions. the continuum ranges from different degrees of state recognition and interaction, accountability,
monitoring and supervision by the state, referral mechanisms and guiding legal or normative frameworks. the
systems encountered in the context of this study and the literature on this subject show that the notion of ‘formality’
has different aspects. formality can be measured by different parameters, of which state recognition is only
one. other parameters include written versus oral procedures and records; written versus oral substantive norms;
the degree to which the system favours conformity with rules rather than finding solutions satisfactory to the two
parties; the binding or non-binding nature of outcomes (as seen by state law); and the stability and durability of
the structures and procedures.
this study does not proceed from the assumption of a dichotomy between ‘state’ and ‘non-state’, as many of the
systems most used by people have a basis both in state law and regulation or in other forms of state recognition. 4
nevertheless, the state/non-state dichotomy is frequently the basis for understanding the separation between the
two spheres that is shared by communities and officials, and it thus cannot be disregarded. so the study attempts
to attenuate such a sharp dichotomy by using a ‘continuum of formality’: informality that includes the state/nonstate
dichotomy, but does not rely upon it exclusively. the section on the conceptual framework defines this further.
it is emphasized that no value judgment is intended by the use of the word ‘informal’.
LegaL pLuraLism
this study posits legal pluralism as a fact. such pluralism exists when sets of norms and institutions that people use
to regulate conduct derive from sources other than state legislation and jurisprudence, and many states legally recognize
these. even in the absence of state recognition, there are many norms and institutions in all countries. this
is particularly apparent in post-colonial states. the study recognizes that custom and society are ever changing.
Pluralism can engender tension in the different sources of legitimacy existing with a state, ranging from legitimacy
based on elections, lineage, local authority or on religious faith and learning.
2 for an excellent recent treatment of non-state security systems in developing countries, see Baker, 2010.
3 ‘informal justice systems’ are distinct from alternative dispute resolution. the latter would include informal practices and processes
by the formal system. the commission of the legal empowerment of the Poor defines informal justice differently, placing
government-affiliated third-party arbitration systems under the rubric of informal justice. for purposes of policy-making and
programming, though, it may be relevant to make a clearer distinction with the aid of different terminology for these practices
and processes. in many countries, and particularly in european and other Western countries, such practices are termed ‘alternative
dispute resolution’.
4 on the various parameters that are of relevance in relation to legal pluralism, de sousa santos uses official/unofficial,
formal/informal, traditional/modern and monocultural/multicultural. see de sousa santos, B., 2006.
a stuDy of informal justice systems: access to justice anD human rights