The Political Economy of Improving Traditional Justice Systems
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men over women, of the relatively wealthy over the impoverished, and of religious and political leaders over their communities. Whether and to what extent these realities apply to traditional systems elsewhere is beyond the purview of this chapter. But the possibility that such systems manifest social control—and the potential to advance social justice by modifying them—should not be overlooked. NGO engagement—and donor support for it—represents a potentially productive middle ground for efforts to improve TJSs. The experience of NGOs and their CBO partners in Bangladesh suggests that such organizations can productively work to keep the many advantages of TJSs while seeking to improve such systems. This effort represents a programmatic middle ground between simply leaving customary systems to their own devices and seeking to integrate them into the official state justice system. Pursuing this path does not preclude efforts to initiate or strengthen such integration. But given the fact that even after decades of existence, the state’s village court system remains largely moribund and in need of “activation” by a UNDP project, and given the degree to which that system likely lends itself to political influence and traditional attitudes, NGO engagement with shalish arguably compares favorably with reliance on that system. This is particularly salient in terms of improving dispute resolution and for the aforementioned considerations regarding social justice. It most likely makes sense to support similar civil society efforts elsewhere. However, the reality remains that many beneficiaries of NGO modification of TJSs may go from “worse to bad.” For example, a farmer may recoup only a portion of the crop proceeds rightly due him, but this is better than nothing. An impoverished woman who in a society that offers more economic opportunities might be able to escape a dysfunctional marriage may opt to return to it by dint of NGO efforts. But this may be preferable to her alternatives outside the marriage: destitution, ostracization, homelessness, or malnourishment for herself or her children. On a more hopeful note, it should be borne in mind that community dynamics in Bangladesh and elsewhere are not stagnant. The 2011 study on NU reached encouraging conclusions about the progress that the NGO and other women’s empowerment strategies are making.42 This author’s observation of NGO-modified shalish in the 1990s found a markedly higher level of engagement by women over the years. The possibility of litigation can be a powerful incentive for reaching and honoring a TJS agreement. The threat or fear of being taken to court by lawyers associated with an NGO can make an otherwise recalcitrant party cooperate with shalish. Especially when the judiciary is backlogged, corrupt, and otherwise dysfunctional, the expense of litigation and uncertainty of result can persuade a party to avoid becoming enmeshed in the formal wheels of justice. 42 Higgitt, supra note 23.