Legal Pluralism and Women's Rights After Conflict: The Role of CEDAW

Campbell, Meghan; Swenson, Geoffrey

doi:10.2139/ssrn.2805359

Cited by 6 publications

(7 citation statements)

References 9 publications

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“…As opposed to trying to get nonstate venues to act like state courts of first instance, there is a focus on changing the treatment of certain legal matters, for example, nonstate actors' treatment of women (Chopra and Isser 2012). State judicial actors also frequently discriminate against women, but usually this is done in violation of state law rather than as a matter of accepted practice (Campbell and Swenson 2016). In general, the greater the state's ability to offer a compelling and legitimate forum for dispute resolution worth emulating, the greater the prospects of successfully implementing a harmonization approach.…”

Section: Harmonizationmentioning

confidence: 99%

Legal Pluralism in Theory and Practice

Swenson

2018

International Studies Review

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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 statebuilding 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.

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Section: Harmonizationmentioning

confidence: 99%

Legal Pluralism in Theory and Practice

Swenson

2018

International Studies Review

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“…Yet many women still could not access the state justice system or state police simply ignored their claims even after relevant state legislation was passed (Campbell and Swenson 2016). Even when claims reached state courts, Timor-Leste lacked an adequate state-or privately-run support network for victims of domestic violence.…”

Section: Addressing Violence Against Womenmentioning

confidence: 99%

“…Addressing domestic violence cases often generated tension between state and non-state legal orders. While non-state justice actors largely supported the state's developmental program, including the government's approach to the state justice sector, they were far more circumspect in their approach to state-backed reforms regarding the treatment of violence against women (Campbell and Swenson 2016). The law envisioned a major role for suco chiefs in "preventing domestic violence," protecting victims, and "punishing the aggressor" in a manner that prevents recidivism (RDTL 2009a: Article 11.2(c-d)).…”

Section: Addressing Violence Against Womenmentioning

confidence: 99%

The promise and peril of paralegal aid

Swenson

2018

World Development

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Strengthening the rule of law and promoting access to justice in developing countries have been longstanding international policy objectives. However, the standard policy tools, such as technical assistance and material aid, are routinely criticized for failing to achieve their objectives. The rare exception is paralegal aid, which is almost universally lauded by policymakers and scholars as effective in promoting the rule of law and access to justice. This belief, however, rests on a very limited empirical foundation regarding what paralegal programs accomplish and under what theory they operate. This paper critically examines the conventional wisdom surrounding paralegal initiatives through case studies of two successful paralegal programs in post-conflict Timor-Leste that are broadly representative of the type of initiatives commonly implemented in developing countries. These programs did improve access to justice services, bolster choice between dispute resolution forums, and increase local knowledge of progressive norms on human rights and women's rights. Yet, as this article shows, even successful programs can expect to achieve only incremental gains in promoting the rule of law because advances largely depend on alignment with the priorities of powerful state and non-state actors, donors, program implementers, and paralegals themselves. To date, the literature has not acknowledged these limitations. This article addresses this gap by demonstrating that paralegal aid faces multiple challenges that mean paralegals cannot necessarily transcend or modify deep seated norms and power structures. These issues include principal agent-problems due to the extensive delegation required, internal limitations resulting from paralegals' limited authority and independence, and external constraints from state and non-state justice actors. Paralegal programs also face program design, implementation, and sustainability challenges. Consequently, scholars, practitioners, and policymakers need to adopt a more balanced view of paralegal aid.

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“…39 Reflecting a long history of weak central rule, it relies on the legal principle of self-help to remedy violations. Self-enforced remedies for tribal law violations are notoriously difficult to extract proportionately and frequently spur further violence.…”

Section: Us Decisionmakers Acquiesced Tomentioning

confidence: 99%

Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed

Swenson¹

2017

International Security

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Promoting the rule of law in Afghanistan has been a major U.S. foreign policy objective since the collapse of the Taliban regime in late 2001. Policymakers invested heavily in building a modern democratic state bound by the rule of law as a means to consolidate a liberal post-conflict order. Eventually, justice-sector support also became a cornerstone of counterinsurgency efforts against the reconstituted Taliban. Yet a systematic analysis of the major U.S.-backed initiatives from 2004 to 2014 finds that assistance was consistently based on dubious assumptions and questionable strategic choices. These programs failed to advance the rule of law even as spending increased dramatically during President Barack Obama's administration. Aid helped enable rent seeking and a culture of impunity among Afghan state officials. Despite widespread claims to the contrary, rule-of-law initiatives did not bolster counterinsurgency efforts. The U.S. experience in Afghanistan highlights that effective rule-of-law aid cannot be merely technocratic. To have a reasonable prospect of success, rule-of-law promotion efforts must engage with the local foundations of legitimate legal order, which are often rooted in nonstate authority, and enjoy the support of credible domestic partners, including high-level state officials.

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Legal Pluralism and Women's Rights After Conflict: The Role of CEDAW

Cited by 6 publications

References 9 publications

Legal Pluralism in Theory and Practice

Legal Pluralism in Theory and Practice

The promise and peril of paralegal aid

Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed

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