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

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others. the first assumption is that customary or traditional law generally aims at preserving peace and community
harmony in a society where people’s attachment to family and clan defines the people themselves, their role and
their status. customary law will generally value these aims more than the vindication of individual legal claims that
are founded on a literal reading of the law. 68 consequently, there is no clear distinction between criminal and civil
wrongs, and responsibility for wrongs is placed on collectivities as much as or more than on individuals. second,
the customary law processes are mostly oral and its procedures flexible and simple. standards of proof are based
on assumptions of probability. adjudicators are chosen through mechanisms that are often based on status or
reputation, and sometimes on heredity. the mechanisms to ensure accountability of such providers are often
found in community bonds, mutual obligations and reputation, so that failure to live up to the demands of fairness
and impartiality would bring shame and a consequent loss of status. substantive rules are derived from tradition
that people may think has existed since time immemorial and that common sense and perceptions of community
consensus then supplement. such rules may be developed and change gradually through negotiation, discussion
and the various influences that prevail on the community. the system is often oriented to a local framework
and a stable social structure that is conscious of well defined social and gender roles, with corresponding rights
and obligations.
in a report dealing with customary justice forums in malawi, Wilfred schärf and his colleagues observed that customary
justice was based on the following key principles:
“The constitution of the legal subject is an integral part of a community in which there are ongoing
reciprocal dependencies. By contrast the state system constitutes the legal subject as a single social
atom, separated from others and devoid of reciprocal dependencies.
• Reconciliation
• Restoration of social harmony
• The application of traditional and customary law
It is forward-looking towards the maintenance of social harmony rather than backward-looking at
the act, which precipitated the dispute to be brought to the customary justice forums. The question
is to what extent the customary justice system applies customary law as opposed to custom. The
law applied is uncodified and therefore more subject to flux from area to area.” 69
the importance of precedent and the roLe of the Judiciary
there are many differences between common law and civil law mainly regarding the place of case law and statutory
law, and the place of codification, on the one hand, and the recruitment, training and roles played by judges,
prosecutors and police (especially in criminal proceedings), on the other hand. nevertheless, the actual differences
between the two systems are less sharp.
in parallel, the importance of jurisprudence and case law for the development of the law has increased in civil
law systems, and traditionally common law countries have moved toward increased legislative regulation and
codification in recent decades, so that the gap between the two systems has narrowed. increased international
harmonization of legislation and the greater prominence of international judicial organs have also played a role in
this. some authors point out how conditions in developing countries, where a lack of codified law in many areas
renders it necessary for the higher courts to play a more active role in determining the law, belie the standardized
68 see, for example, manfred o. hinz in ‘justice for justice and justice for Peace: legal anthropological observations on traditional
and informal justice systems’, hinz and mapaure, 2010.
69 see schärf, Banda et al. on malawi, 2002.
a stuDy of informal justice systems: access to justice anD human rights