Legal Pluralism in Theory and Practice

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.

Section: Non-state Justice In Timor-lestementioning

confidence: 99%

Section: Conclusion Overall Program Impact Theory Testing and Bmentioning

confidence: 99%

The promise and peril of paralegal aid

2018

World Development

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“…The use of randomised survey sampling methods points up access issues as well as the rigidities of quantitative techniques, reflecting some of the challenges identified by Guba and Lincoln () on competing paradigms and knowledge creation. Geoffrey Swenson (, , ) conducted in‐depth, process tracing‐based qualitative research with international and domestic actors engaged with both the state and non‐state justice sectors in Afghanistan and Timor‐Leste.…”

Section: Introductionmentioning

confidence: 99%

Fieldwork after conflict: contextualising the challenges of access and data quality

Roll

2018

Disasters

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Despite sustained scholarly interest in post‐conflict states, there has not been a thorough review and analysis of associated methodology and the challenges of conducting research in these contexts. Addressing this gap, this paper directs attention to the particular effects of these settings on access and data quality and their ramifications for the resulting scholarship. It assesses the intrinsic challenges of performing fieldwork in these environments, drawing on both relevant social science literature and the authors’ experiences of carrying out research in Afghanistan and Timor‐Leste. The study demonstrates that the post‐conflict environment moulds research design and, consequently, influences how questions are answered as well as the questions asked. Moreover, it highlights ways to mitigate these issues. This work is of relevance to scholars planning to engage in field research and to researchers reflecting upon their work, as well as to policymakers who are considering undertaking programmes or commissioning research in post‐conflict areas.

“…This article raises particular concerns with the ethics of risk imposition, whereby the principal's actions expose an agent to greater risk. We illustrate each strategy through reference to our own research in Afghanistan (Swenson 2017;2018a) and Timor-Leste (Roll 2014;Swenson 2018b), as well as other studies.…”

mentioning

confidence: 99%

“…This article raises particular concerns with the ethics of risk imposition, whereby the principal’s actions expose an agent to greater risk. We illustrate each strategy through reference to our own research in Afghanistan (Swenson 2017; 2018a) and Timor-Leste (Roll 2014; 2018; Swenson 2018b), as well as other studies.We identify three risk-mitigation strategies: avoiding, internalizing, and outsourcing risk. Each approach shapes what information is gathered and represented and what authoritative knowledge is propagated in the academic literature.…”

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confidence: 99%

Theorizing Risk and Research: Methodological Constraints and Their Consequences

Roll

2019

APSC

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Conflict, postconflict settings, and other risky research sites are important with wide-ranging policy implications. Microlevel, field-based research lends critical insights to how conflicts work and the mechanisms behind macrolevel correlations that underpin quantitative political science. This article identifies how the risks associated with conflict and postconflict contexts influence researchers’ choices by theorizing the existence of distinct adaptive strategies. Specifically, researchers facing elevated risk generally manage it through three main strategies: outsourcing risk, avoiding risk, and internalizing risk. We argue that these strategies systematically shape and circumscribe outputs. We conclude by discussing how the relationship between risky fieldwork and what we know about conflict is poorly acknowledged. Thinking about how we manage risk should play a larger role in both our preparation for and interpretation of research, particularly in conflict and postconflict contexts.