Justice sector adviser/researcher HiiL Innovating Justice - TISCO, Tilburg Law School
Justice Innovation: old ideas creating new value
Qadis are among the most traditional adjudicators in the world. Some associate qadi justice with arbitrariness and violations of human rights, others with locally embedded problem-solvers with fast and simple procedures.
Their work and practices might also reflect state of the art innovating strategies that our recent report on Strategies Towards Basic Justice Care found to be promising. It shows how innovating justice can be a matter of using age-old ideas about adjudication in new contexts.
Our Justice Innovation Lab advises in a project that collects the practices of informal adjudicators in Egypt. As part of this, recently, I had the opportunity to talk with five qadis from the Egyptian Sinai desert. These are traditional adjudicators that use Islamic law to solve disputes of all matter.
While they were talking about how they work, I became fully aware of how innovating justice is not always about coming up with new, game-changing ideas. Sometimes, it is about translating ideas from old places to modern contexts. From what they told, it seems that their practices reflect several of the innovation strategies for making basic justice care available for everyone that we identified with a group of 100 global experts.
One of the reasons for individual qadis to solve problems fast, so they say, is that they otherwise would become irrelevant. When people from the Sinai tribes have a dispute, they can choose between several qadis to adjudicate their case. So a bad performing qadi would have little people coming to him. Whereas the good ones have more. The qadis said that since the more people come to you, the better your standing is, individual qadis want to perform very well so that people come to them.
These qadis also explained how they think that different types of disputes require different expertise. How disputes about water resources can easily escalate and become conflicts between tribes. So that there is some special sensitivity needed for this. Or how disputes within a family comes with other types of emotions and sensitivities than disputes between traders. They specialize in order to develop different the skills that are needed to deal with these disputes. There are different qadis for disputes within families, about water, camels, palm trees, and trade.
What each of these qadis does before the procedure starts is define the terms of reference together with the parties (they left me to believe that these are more or less standardized). This includes determining the time to begin and to end the procedure (which often is from sunrise until lunch, so it only takes half a day!), what happens if one party wants to appeal the decision (there is a different procedure for this which usually takes place the same day), and how they can rely on the other party to comply.
One practice that stimulates the parties to comply is to put a piece of cloth on the qadi's home. The names of people who do not comply are written on it. And of the people that do not show up and do not cooperate. So that everyone can see it. In their community, so the qadis stated, this provides a strong incentive on people to cooperate and comply. Because no one wants to damage their reputation.
It is easy to see how some of the trends that access to justice experts recently qualified as promising innovation strategies for providing basic justice care are reflected in the stories of the qadis: specialization of courts, choice of forum, compliance through reputation, clear terms of reference. Some might find them (too) innovative and different from how the legal system has always worked. But these qadis showed me how they in fact are not.
Their stories showed me how justice innovation can be about the value of traditional ideas and practices that have helped to solve problems for a very long time. Even in very remote place like the Sinai desert where the legal system is very far away. And adjust them to new contexts so they can help to deliver modern justice.