Introduction and Overview
Why examine plural legal orders?
This report is written for human rights advocates and policy-makers who find themselves in contexts where a specific dispute or subject matter is governed by multiple norms, laws or forums that co-exist within a single jurisdiction. Plural legal orders occur in numerous circumstances: for example, where different family laws apply to specific ethno-cultural groups, where customary dispute resolution mechanisms operate without state sanction, where non-state legal orders (such as chiefs' courts) are officially recognised, or where quasistate legal orders (such as alternative dispute resolution mechanisms) are established.
Given the concerns surrounding the failure of most state legal systems to ensure effective access to justice, particularly for marginalised and vulnerable communities, a range of actors - using a range of arguments - have encouraged or demanded the introduction or recognition of plural legal orders. These claims in turn have led legal and human rights organisations, but also other actors, to express concern at the human rights implications of recognising and extending forms of legal plurality.
When Legal Worlds Overlap: Human Rights, State and Non-State Law aims to provide human rights and other actors with tools that will enable them to evaluate whether a plural legal order is likely to enhance access to justice, and to identify human rights risks that are associated with the plural legal order in question. While it is widely recognised that plural legal orders generate many human rights conflicts and dilemmas, discussion of them has generally created more heat rather than light. This is no doubt partly because, though a large body of research exists on the subject, drawing on law, anthropology, sociology, political science, and development and environment studies, surprisingly little specific work has focused on their human rights impact. Besides, theoretical and conceptual discussions have seldom connected with experiences of human rights practice in plural legal contexts. The aim of the report is therefore to lay the groundwork for a more careful and inclusive discussion of the issues involved, with the aim of improving practical policy responses on the ground.
It must be said at the outset that this task is not straightforward. Plural legal orders exist in every part of the world and in all types of political systems.
They vary enormously in jurisdiction, procedure, structure and degree of autonomy. Numerous interrelated factors influence their evolution including colonialism; the state's need for legitimacy; the quality, reach and relevance of official legal systems; conflict and post-conflict reconstruction; respect for diversity, multiculturalism and identity politics; privatisation or reduction of public expenditure in the justice sector; other forms of intervention by donor and international development agencies; etc.