Promoting the Rule of Law in Post-Conflict States

Abstract

In most post-conflict states, a strong level of legal pluralism is the norm, particularly in regions of Africa and Asia where between eighty and ninety per cent of disputes are resolved through non-state legal mechanisms. The international community, in particular the United Nations, persistently drives the re-establishment of the rule of law in war-torn areas where, traditionally, customary law is prevalent. Laura Grenfell traces the international community's evolving understanding of the rule of law in such regions and explores the implications of strong legal pluralism for the rule-of-law enterprise. Using the comparative examples of two unique case studies, South Africa and Timor-Leste, Promoting the Rule of Law provides insight into the relationship between the rule of law and legal pluralism. Alongside these studies, the book offers a comprehensive introduction to the conceptual framework of the rule of law in the context of approaches taken by the international community.

Traditional Local Justice, Women’s Rights, and the Rule of Law: A Pluralistic Framework

“…31 This kind of approach also corresponds to theoretical models such as the system of regulated interaction between Islamic courts and state law proposed by Shachar 29 The most recent version of the South African Traditional Courts Bill (Government Gazette No. 40487 of 9 December 2016) aims to "provide a uniform legislative framework for the structure and functioning of traditional courts, in line with constitutional imperatives and values; and to provide for matters connected therewith" (see Grenfell 2013;Rautenbach 2015). The first draft of the Muslim Marriage Bill, dating back to 2003, is still under discussion at the time of this writing (September 2018).…”

“…Viola (2007 has analysed the challenges to the models of rule of law proper to national legal systems with reference to "official legal pluralism." 40 Grenfell's (2013) statement comes at the conclusion of a broad research on the relations between traditional courts and the national legal system in South Africa and Timor Leste. 41 On the basis of an overview of landmark studies, Zumbansen (2017, 13) highlights the "impulses to rethink, to relocalise and to critically reassess the Western influence on shaping 'global' and 'comparative' constitutional law as the taken-for-granted frameworks for thinking about the Rule of Law."…”

Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU

“…Traditionally the purview of constitutional lawyers and political philosophers, the rule of law has, particularly over the last decade, been heralded as a panacea for a host of human ills – poverty, democratic dysfunction, conflict – and become the darling of policy‐makers and scholars in a plethora of disciplines: from comparative democratization (Magen and Morlino, ; Fukuyama, ) and development economics (Dam, ; Haggard and Tiede, ), to security and conflict‐resolution studies (USAID, ; Grenfell, ; Haggard and Tiede, ). Amidst a host of deep cleavages, between east and west, north and south, as Tamanaha () observes: ‘there appears to be widespread agreement, traversing all fault lines, on one point, and one point alone: that the “rule of law” is good for everyone’ (p. 1).…”

“…For the World Bank, the notion that the rule of law is essential for healthy economic development became a core axiom since the mid‐1990s (Haggard and Tiede, ). For the soldier fighting an insurgency and the diplomat engaged in state‐building, the rule of law is a central pillar of counter‐insurgency doctrine and post‐conflict reconstruction (Grenfell, ). And for the UN today the rule of law has arguably become the predominant organizing principle for a fair international order (United Nations, ).…”

Introduction: legal empowerment in transitions

“…67 As Laura Grenfell rightly notes, 'the rule of law is shorthand for the rule of state law'. 68 Third, development actors conceptualise these reforms as apolitical and technocratic tools while state elites see them for what they really are: potential constraints on their exercise of power. 69 Legal empowerment was originally conceived as a challenge to the rule of law orthodoxy -and hence to liberal peacebuilding.…”