Making The Law Work for Everyone Commission on Legal ... - ISSAT

also exclude other disadvantaged social groups,may perpetuate the power of local elites andstifle dissent, and may be unsuited to rapideconomic development (NCLEP Uganda 2007).Just as poor communities may find it difficult toaccess <strong>for</strong>mal justice institutions, marginalizedmembers of poor communities may find it difficultto achieve equal access to the institutionsof customary or in<strong>for</strong>mal justice (NCLEP India2007, NCLEP Philippines 2007). Nonetheless,despite these problems, re<strong>for</strong>mers must acknowledgethat in many situations replacing in<strong>for</strong>mal orcustomary justice systems with the <strong>for</strong>mal legalor bureaucratic institutions of the state is eitherimpossible or would do more harm than good.<strong>The</strong>re<strong>for</strong>e, alongside programmes to improvethe state justice systems, re<strong>for</strong>mers should seekout opportunities <strong>for</strong> strategic interventions thatimprove the operation of in<strong>for</strong>mal or customaryjustice systems and facilitate the efficient integrationof the <strong>for</strong>mal and in<strong>for</strong>mal systems.Ultimately, re<strong>for</strong>ms and improvements to thenon-state justice system must emerge ‘bottomup’from the participants in that system. Whilea government’s role in facilitating re<strong>for</strong>m of nonstatejustice systems is necessarily limited, itcan (perhaps in collaboration with internationaldonors working through government) take actionsto influence the development of non-statejustice systems. We may group them under fourcategories: education and awareness campaigns;tailored legal aid services; targeted constraints,and structuring institutional relationships.Education and Awareness CampaignsEmpowering the poor to demand changes in thecustomary system is the first approach. Re<strong>for</strong>merscan encourage trans<strong>for</strong>mation from within simplyby providing in<strong>for</strong>mation about individuals’ legalrights under the constitution and about the normsof the <strong>for</strong>mal legal system. In Bangladesh, <strong>for</strong>example, the Constitution <strong>for</strong>bids the practice o<strong>for</strong>al divorce, but in poor rural communities, thepractice is still widespread. A Bangladeshi NGOfound that simply in<strong>for</strong>ming the members of localcustomary courts that oral divorce was <strong>for</strong>biddenby the constitution substantially reduced thepractice. More generally, this NGO found that itwas possible to introduce norms from nationallaw into community deliberations and mediationpractices otherwise based on customary law andtraditional norms (Golub 2000).Although this may be an exceptional case,education and awareness-raising campaignsmay have long term effects on the evolution ofcustomary law systems. This effect may be particularlypowerful if educational ef<strong>for</strong>ts are coupledwith improved access to the state system as analternative to the customary system. Customary legalofficials who want to retain their authority maythen feel some competitive pressure to modifythe norms of the customary system to align themmore closely with those of the <strong>for</strong>mal system. Educationef<strong>for</strong>ts are not likely to reap visible shorttermbenefits, but in the longer term they mayeffect significant change in cultural practices.A variant of the education-oriented approach isto provide in<strong>for</strong>mation on how other customarycourts have resolved similar disputes. Implementingschemes that let customary officials anddisputants in customary systems know how othercustomary courts have resolved similar issuesmay encourage consistency, limit abuse, and allow<strong>for</strong> the gradual evolution of the customarysystem. This is not to say that customary legalsystems should be converted into common lawstyle courts with binding precedent. Rather, thesuggestion is that in<strong>for</strong>mation sharing not onlyabout the norms of the <strong>for</strong>mal legal system, butalso about the norms adopted by other custom-43