Developing Customary Law in Systems of Legal Pluralism

Legal pluralism, the coexistence of multiple legal systems within one society, is practiced in more than forty countries worldwide, often where customary law coexists with legal systems transplanted during colonization. Customary law courts generally address local issues such as marriage, land rights, inheritance, and inter-group conflicts. They tend to emphasize community participation and apply informal, dispute resolution processes that yield restorative decisions designed to support and heal individuals and communities. By contrast, formal courts (often based on Western legal traditions) employ official processes, focus on individuals, and emphasize retributive justice. These courts are intended to anchor a unified state legal system that serves governance, business development, and ties to the global community, If not well managed, the coexistence of multiple legal options can produce contradiction, uncertainty, and institutional weakness and can disadvantage the livelihoods of individuals and communities. The scientific study of legal pluralism, as exemplified in this project, identifies the advantages and limitations of legal pluralism by documenting and collaboratively developing customary law in relation to a state system. The case study model produced through this research illuminates how customary law’s guiding principles might underpin a legal system built on both longstanding customary practices and globally-recognized essential rights. The findings inform efforts to combine informal and formal legal options effectively in many contexts of legal pluralism, including the United States, where efforts to incorporate restorative justice options into the formal, retributive-based system are ongoing. This project expands on an ethnographic study of customary courts initiated in 2008 in response to an official call for increased reliance on customary law. One intended aim was to address violence and lawlessness in a locally-relevant manner. The research team will observe and document court cases in multiple contexts, including a formal District Court, to establish a database recording the application and adaptation of customary law across one local area. The database will be used to develop and refine theories of legal pluralism, including the challenges of facilitating collaboration between different legal systems, when one employs restorative justice and the other retributive justice. The research team includes locally-based formal and customary law experts, and the research design includes participatory opportunities for local collaboration in data analysis, including by sitting magistrates. Finally, the efficacy of customary courts for establishing peace after communal warfare with contemporary weapons will be investigated by monitoring peace negotiations and their incorporation of customary principles. An important product of these efforts will be a guidebook to customary law to be used to train new customary court magistrates and provide a resource for formal court personnel, law enforcement personnel, public servants and students and a model for such guidebooks for other contexts. Results of the in-depth study of this initiative will be relevant to the challenges of developing effective systems of legal pluralism in other nations worldwide. This award reflects NSF's statutory mission and has been deemed worthy of support through evaluation using the Foundation's intellectual merit and broader impacts review criteria.