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

cHaPTer ii
34
situating informaL Justice systems
introduction
this chapter provides the conceptual framework for the study and defines and discusses many key concepts and
issues surrounding ijs. it is not intended as an academic study and cannot do full justice to the variety and depth
of work of scholars, particularly on the complex issues of legal pluralism and how relativism and universalism relate
to human rights.
informaL Justice systems – parameters of anaLysis
ijs vary considerably and encompass many concepts. they exhibit different degrees and/or forms of:
1. formality/informality with respect to legal or normative framework, state recognition, appointment and interaction,
control and accountability mechanisms, and systems of monitoring and supervision, including case
records, referral procedures, etc.
2. justice, including the perception of justice, conformity of outcomes with legal norms as opposed to ad hoc
solutions, individual vs. communal justice provision, different objectives of the ijs, the level of compliance
with human rights standards (both as to process and outcome), etc.
3. system, including the level of standardization of norms and procedures, the level of internal coherence, institutionalization,
guarantees of impartiality, independence and equal treatment, and legitimacy of the office
holder/judge, including of election or appointment procedures.
related noteworthy studies have attempted to define ijs. unDP has used the term ‘informal’ “when referring to
dispute resolution mechanisms falling outside the scope of the formal justice system. the term does not fit every
circumstance, as many terms exist to describe such systems (traditional, indigenous, customary, restorative, popular),
and it is difficult to use a common term to denote the various processes, mechanisms and norms around the
world. […] the term informal justice system is used here to draw a distinction between state-administered formal
justice systems and non-state administered informal justice systems.” 8
to address programming needs in nepal, steven golub also employed a practical definition that, if used outside
the nepali context, would appear to exclude the ‘parajudicial’ systems relevant for this study: “informal justice systems
(ijs) are those types of alternative Dispute resolution (aDr) that operate on the community level, either as
traditional mechanisms or as those facilitated by ngos.” however, he then broadens the discussion considerably to
discuss aDr: “alternative dispute resolution (aDr) more broadly than in the present context is used to denote any
alternative to court trials in settling disputes between individuals. it includes mediation that judges may conduct
or have conducted by lawyers or other persons and dispute resolution (often arbitration) by quasi-judicial forums
that decide on issues such as land conflicts. finally, the term includes forums and processes through which community
members help resolve disputes between other persons from their area, including many family matters that
may have very important implications for the way in which women and children are treated by a community and
for their human rights.” 9
8 Wojkowska, unDP, 2006.
9 Proposed formulation for subcomponent 2.B (access to justice) for Phase iii of Denmark’s human rights and good governance
Programme (hrggP-3) in nepal, final Draft annexes, paper prepared for DaniDa programming in nepal. the author did not
necessarily intend this definition to be generally valid for numerous contexts and countries.
a stuDy of informal justice systems: access to justice anD human rights