Legal Pluralism in Theory and Practice
International Studies Review, 2018, vix060, doi/10.1093/isr/vix060
25 Pages Posted: 31 Jul 2018
Date Written: January 18, 2018
Legal pluralism has vast policy and governance implications. In developing countries, for instance, non-state justice systems often handle most disputes and retain substantial autonomy and authority. Legal pluralism's importance, however, is rarely recognized and dramatically under theorized. This article advances scholarly understanding of legal pluralism both theoretically and empirically. It proposes a new typological framework for conceptualizing legal pluralism through four distinct archetypes – combative, competitive, cooperative, and complementary – to help clarify the range of relationships between state and non-state actors. It posits five main strategies used by domestic and international actors in attempts to influence the relationship between state and non-state justice systems: bridging, harmonization, incorporation, subsidization, and repression. As post-conflict situations are fluid and can feature a wide range of relationships between state and non-state actors, they are particularly instructive for showing how legal pluralism archetypes can be shifted over time. Case studies from Timor-Leste and Afghanistan highlight that selecting an appropriate policy is vital for achieving sustainable positive outcomes. Strategies that rely on large scale spending or even the use of substantial military force in isolation are unlikely to be successful. The most promising approaches are culturally intelligible and constructively engage non-state justice networks of authority and legitimacy to collectively advance the judicial state-building process. While the case studies focus on post-conflict states, the theory presented can help understand and improve efforts to promote the rule of law as well as good governance and development more broadly in all legally pluralist settings.
Keywords: rule of law, governance, post-conflict, legal pluralism, Afghanistan, Timor-Leste, state-building
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