Legal Pluralism and the Rule of Law: Can Indigenous Justice Survive?
University of Idaho
July 1, 2010
Harvard International Review, Vol. 32, No. 2, p. 32, 2010
If non-Western, indigenous legal systems are to maintain their relevance and vitality, if they are even to have a place in the new global community, they will need to resist the pressures to simply import or impose Western law and instead adapt to minimum international norms on their own terms. Accordingly, those agencies and individuals engaged in promoting the rule of law, economic development, or respect for human rights should resist the impulse to simply impose the Western laws and legal institutions — as the U.S. Congress did to the Native American communities post-Crow Dog. Instead, reform-minded agencies and individuals should seek opportunities to engage and influence customary law and customary institutions, to encourage human rights recognition within such systems. Solutions can and must come from customary systems’ embracing human rights norms, not from initiatives to displace or ignore customary systems in favor of Western ones. With appropriate influence, including that of limited judicial enforcement of constitutional guarantees under the legal pluralism regime, customary courts and customary law can become guardians not only of traditional culture, but also of human rights and rule of law principles. And they will be all the more effective in this latter enterprise because the systems are home-grown, culturally appropriate, and embraced by the communities they serve.
The mistaken reaction to Ex parte Crow Dog, when fear and misunderstanding of cultural difference led to an imposition of federal jurisdiction over tribal communities, is a sobering case in point. Indigenous and other non-Western systems deserve more respect and deference than that, but the reform and development winds are blowing against them, particularly on what have become non-negotiable issues of human rights and rule of law. Customary law institutions will have to bend and adapt if they are to survive; but they are already equipped to do that, and Western reformers should acknowledge and appreciate that. Legal pluralism continues to offer great promise, both for the preservation of cultural values and institutions, and ultimately for the establishment of the rule of law, but only if the indigenous legal systems can be engaged in a spirit of mutual respect.
Number of Pages in PDF File: 7
Date posted: February 1, 2011