Promoting Law Beyond the State

Abstract

In countries receiving foreign aid, non-state justice systems rooted in custom or religion generally handle most legal disputes. This dramatically influences the prospects of international efforts to promote the rule of law, yet scholars have paid little attention to foreign policy towards non-state justice. This paper explores how the nine largest rule-of-law assistance providers engaged non-state justice between 2008 and 2018, illuminating the theory behind, and the reality of, donor-state policy. It proposes a new classificatory typology of donor approaches to non-state justice detailing five strategies (denial, acknowledgement, acceptance, transformation, rejection) and four goals (judicial reform, symbolic recognition, state-building, counterinsurgency). It then explores how the nine largest rule-of-law-assistance donor states addressed non-state justice through a structured comparison of policy documents as well as case studies of the five donors with the most comprehensive approaches. Donors strongly favored risk-averse approaches, even when this made success unlikely. Certain policy goalssuch as state-building or counterinsurgency-sometimes prompted riskier choices, but only with a compelling justification and a reasonable prospect of success. Overall, major rule-oflaw donors displayed risk-averse, superficial policy, minimal stakeholder engagement, a failure to grapple with the nuances of legal pluralism, and a lack of evidence to support existing policies.

Keywords: Rule of Law, Legal Pluralism, Foreign Aid, Foreign Policy, Non-State Justice, Conflict, Access to Justice, Rule of Law Promotion, Afghanistan, United States, United Kingdom, Australia, Germany, Netherlands, Global South, Human Rights, Gender Equality