The application of the principle of subsidiarity to promote human rights in pluralistic societies. The case of South Sudan

Introduction  
Informal justice is receiving a steadily increasing acknowledgement by the international community as an 
autonomous and valid legal system.
1
 The term ‘informal justice’ is contested. For the scope of this essay, it 
includes ‘customary practices as well as parallel systems from the formal state systems’.
2
 As will be 
analyzed in chapter 2.2, the notion of customary practices has a contested definition. For the purpose of 
this essay, they can be considered both customary norms existing before and created during the colonial 
period. Such broad definition is necessary as the main characteristic of informal justice systems is its 
flexibility, i.e. its capacity to adapt to evolving situations. Hence, at will be clarified in the second chapter, 
on the one hand the label ‘traditional,’ implying an idealistic static norm created in the pre-colonial era, 
does not fit to mechanisms that are continuously evolving.
3
 On the other hand, trying to narrow the 
definition may cut off from the analysis realities that live at the borders between custom and religion, 
especially in cultures where such distinction is not so sharp and the normative systems are products of 
religion, authority and social pressure.  
This dissertation argues that judicial reforms in pluralistic societies must base the relationship between 
formal and informal justice on subsidiarity rather than sovereignty. South Sudan (hereinafter SS) will be 
taken as a case study that clarifies my thesis. It is beyond the scope of this dissertation to analyze every 
aspect of how judicial reforms in South Sudan may involve informal justice, as it requires a deeper direct 
understanding of the reality on the ground, while this work is limited to the analysis of secondary sources. 
This essay tries instead to develop an analysis of the legal concepts and theoretical justifications that would 
direct such field analysis toward a positive result, using SS as a case study for its unique characteristic of 
new born post-colonial state.
4
 
The author challenges the traditional assumption that improving access to justice through a rule of law 
project will improve the compliance of the post-conflict states to human rights standards.
5
 Donors must 
increase domestic ownership of the reforms by tailoring their approach to the specific context rather than 
applying a set of state-centric best practices in a one-solution-fits-all fashion.
6
 At the same time the risk of 
enthusiastic support of informal justice are noteworthy. Section 3.4 of this dissertation highlights the 
human rights violations that informal justice may create.  
                                                           
1
 Huyse, Luc and Mark Salter. Traditional justice and reconciliation after violent conflict. Learning from African 
experiences. Stockholm: International institute for democracy and electoral assistance, 2008, p 3. 
2
 Thorne, Kristina. Rule of law through imperfect bodies? The informal justice systems of Burundi and Somalia. Centre 
for humanitarian dialogue, 2005, p 2 
3
 Huyse, supra note 1, p 7.  
4
 Carozza, Paolo. «Subsidiarity as a structural principle of International human rights law.» The American journal of 
International law, 1997, p 79. 
5
 Baumgartner, Samuel. “Does access to justice improve countries' compliance with human rights norms? An empirical 
study.” Cornell international law journal, 2011, p 443. 
6
 Piron, Laure-Helene. “Donor assistance to justice sector in Africa: living up to the new agenda? .” Human rights and 
justice sector reform in Africa, 2005, p 8. 
4
The rule of law advocated until the recent past was influenced by a positivistic approach, thus rejecting 
the flexibility and potential of customary laws.
7
 International scholars have usually focused their attention 
on state-to-state relations, realized through bilateral or multilateral treaties and organizations, following 
the view that law is an exclusive product of state-like entities with sovereignty functions.
8
 However, the 
evolution of the geo-political reality after the end of the Cold War and the increased recognition of non-
state entities as international law stakeholders challenged such state-centric approach, including non-state 
entities as valid law-making centres.
9
 Finally it is now possible to see an effort towards a deeper 
understanding of the origins of customary law and informal justice systems.
10
 Nevertheless, such a shift is 
still limited to the academia,
11
 while in practice
12
 little recognition of the importance of informal justice is 
given.
13
 
In the first chapter the author argues that a legal pluralistic approach to complex realities in unavoidable. 
It provides theoretical ground for the advocacy, highlighting how the simultaneous presence of informal 
justice mechanisms and modern human rights-based justice systems is justified by the pluralistic essence of 
legal systems in general and of the South Sudanese one in particular. Utilizing subsidiarity as a conceptual 
mediation tool between the unity and universality on the one hand and local pluralism and cultural 
sensitivity on the other, the author demonstrates that the possibility of a stronger recognition of traditional 
justice mechanisms in post-conflict justice reforms shall not be considered a threat for state unity and a 
dangerous political decision by the government.
14
  
The second chapter analyzes the context where those reforms have to be implemented. It provides an 
appraisal of the SS normative system based on a general overview of the context of the areas where the 
British Empire governed with a limited penetration of its structures in the field. Such policy, called indirect 
rule, and its consequences will be analyzed from a pluralistic perspective. Legal scholarship mostly 
disregards the presence on unofficial customary laws in virtually all African legal systems.
15
 This creates the 
fiction of the presence of state-controlled customary laws that are valid and applied by the entire socio-
                                                           
7
 Hinz, Manfred. Customary law in Namibia: development and perspective. Widhoek: University of Namibia, 1995, 
introduction. 
8
 Berman, Paul. “Global legal pluralism.” Southern California law review, 2007, p 1174-1175. 
9
 Id, p 1176. 
10
 Hinz, supra note 7, introduction 
11
 One example of recognition of informal norms even in business transactions, Rittich, Kerry. “The future of law and 
development: second-generation reforms and the incorporation of the social.” In The new law and economic 
development. A critical appraisal, by David Trubsek, 224. 
12
 Nyamu-Musembi, Celestine. Review of experience in engaging with 'non state' justice systems in East Africa. 
Institute of development studies, 2003, p 3; Wojkowska, Ewa. Doing justice: how informal justice system can 
contribute. Oslo: United Nations Development Programme - Oslo governance centre, 2006, p 12. 
13
 United Nations Secretary General. «The rule of law and transitional justice in conflict and post-conflict societies.» 
S/2011/634, 2011 para 39. 
14
 Carozza, supra note 4, p 40. 
15
 Connolly, Brynna. «Non-state justice systems and the State: proposals for a recognition typology.» Connecticut law 
review, 2005, p 240. 
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legal reality.
16
 Such assumption may be challenged if the legal reality on the ground is interpreted 
considering informal justice systems as valid law, according to the findings of the first chapter. 
Recognition does not solve the contrast between formal and informal justice. The third chapter aims at 
clarifying the characteristics of informal justice mechanisms and their relationship with the formal state, 
challenging the idea that the contrast between human rights and informal justice is irreconcilable. Using 
subsidiarity as a tool to mediate, it proposes a solution to the contrast between human rights and cultural 
sensitivity. 
  
                                                           
16
 Menski, Werner. Comparative law in a global context. The legal systems of Asia and Africa. Cambridge: Cambridge 
University Press, 2006, p 476. 
6
Part I – The theory - Legal pluralism and African normative systems   
The first chapter of this essay challenges the conventional classification of legal scholarship, proposing the 
idea of a pluralistic vision of legal multiplicity.
17
 
The first paragraph introduces the concept of legal pluralism. The author considers immediately the so-
called ‘new legal pluralism’ that rejects ready-made models of law and state,
18
 in contrast with the ‘classical 
legal pluralism’ focused more on the relationship among institutions.
19
 A legal pluralistic approach 
challenges the view that informal justice mechanisms are not law. It is possible to widen the definition of 
law to the extent that is includes informal justice mechanisms. The second paragraph analyzes the 
differences between the notions of pluralism and monism. This paragraph makes clear that legal pluralism 
rather than monism reflects reality. The third paragraph challenges the idea that traditional justice 
mechanisms are usually incompatible with international human rights standards. The fourth paragraph 
analyzes the different models which state and informal justice systems may be balanced, advocating for the 
application of the principle of subsidiarity. 
What is legal pluralism  
The legal monistic conception considers law as a coherent and unique body of norms produced by a 
clearly determined source, the State.
20
 A social norm achieves the status of legal norm once there is a 
socially accepted imposition of physical force in case of its violation.
21
 Direct consequence of this view is the 
universalism, i.e. the application of objective standards to all the recipients of a norm, regardless of their 
own normative positioning.
22
 This idea is derived by the assumption that law stems from a singular 
sovereign entity. It is hence considered singular as separate from morality and politics and centralist as it 
limits the sources to the state, denying the possibility to include de-centred sites.
23
 According to this 
ideology, societies that lack a central body capable of enforcing publically administered sanctions are 
considered lawless.
24
 
Legal pluralism has a contrasting conception of law, based on the recognition of multiple sources and 
types of law.
25
 It thus considers law and society characterized by multiplicity and difference. These 
                                                           
17
 Davies, Margaret. "The Ethos of Pluralism." Sydney Law Review, 2005, p 88 
18
 Bertelsen, Bjorn Enge. “Multiple sovereignties and summary justice in Mozambique.” Social analysis, 2009, p 133. 
19
 Merry, Sally Engle. “Legal pluralism.” Law and society review, 1988, p 872 
20
 Davies, supra note 17, p 92. 
21
 Hoebel, Adamson. The Law of Primitive Man: A Study in Comparative Legal Dynamics. Oxford University Press: 
London, 1954, p 28. 
22
 Betts, Alexander. "Should Approaches to post-conflict justice and reconciliation be determined globally, nationally 
or locally?" The eurpoean journal of development research, 2005, p 739. 
23
 Davies, supra note 17, p 92. 
24
 Tamanaha, Brian. "An analytical map of social scientific approaches to the concept of law." Oxford journal of legal 
studies, 1995, p 508. 
25
 Davies, supra note 17, p 88. 
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