A Typology of Relationships between State and Non-State Justice Systems

Abstract

The literature on non-state justice in more than 20 states is surveyed to provide an analysis of the range of possible relationships between state and non-state justice systems. The following models are considered with respect to their advantages and disadvantages, and the circumstances in which they should be considered:

1.Repression of a non-state justice system by the state system.

2.Formal independence between the systems but tacit acceptance by the state of a non-state justice system.

3.No formal recognition but active encouragement of a non-state justice system by the state.

4.Limited formal recognition by the state of the exercise of jurisdiction by a non-state justice system.

5.Formal recognition of exclusive jurisdiction in a defined area.

6.Formal recognition and the giving of state coercive powers to a non-state justice system.

7.Complete incorporation of the non-state justice system by the state.

It is concluded that in the majority of instances surveyed relationships between state and non-state justice systems are not mutually supportive, and that even the more ‘successful’ examples have problems. These findings suggest that for many jurisdictions what is required is reform of the relationship between the state and non-state justice system(s) to maximise the chances of the systems cooperating with each other, performing the tasks for which they are best suited to their fullest potential, and covering each others’ weaknesses with their own strengths.