The promotion of the rule of law has been a major part of development assistance programmes because it is seen as a core element in the fulfilment of various aims such as economic development, peace and security, and respect for human rights. Much of the effort to promote the rule of law has been focussed on strengthening the formal justice systems in countries in the Global South by executing projects such as building new courts and legal institutions, training judges and lawyers, and drafting new laws that are meant to develop the justice system by reflecting successes seen in other jurisdictions, primarily of the Global North. The assumption behind such policies is that if such institutions are built, then the rule of law will automatically follow. Over the years, these policies and projects which have largely focussed on building formal justice systems have cost billions of dollars. A consistent critique of these policies has been that transplantation of legal ideas, values and institutions, without cognizance of local contexts and realities, does not work. Similarly, as this chapter will show, the framing and developing of legal indicators are also influenced by legal formalism and institutional ideas of the rule of law.

Increasingly, however, there has been a shift in rule of law programming with more engagement with local dispute resolution forums such as those based on custom, religion and community practices. For the purposes of the analysis, these will collectively be called non-state justice systems (NSJS). This is not to diminish or ignore the plurality among them and the diversity of their functions but to distinguish them from the state-centred justice systems, which, in this instance, include the executive, the judiciary and the legislature of a country, and their bureaucracies.

The phenomenon of ‘legal pluralism’ has emerged in rule of law programming because development agencies recognize the resilience of NSJS and the limits of top-down legal reform that takes place without cognizance of history, culture and context. Development agencies have also recognized that NSJS have legitimacy and authority in particular regions around the world because they are accessible, affordable and familiar.