Restorative Justice, Policing and Insurgency: Learning from Pakistan

• Published date: 01 September 2014
• DOI: http://doi.org/10.1111/lasr.12091
• Date: 01 September 2014

Restorative Justice, Policing and Insurgency:

Learning from Pakistan

John Braithwaite Ali Gohar

Pakistan state law and Taliban rule of Sharia law are at different ends of a

politico-legal spectrum. They share advocacy of one system of law and attrac-

tion to eradication of alternatives. Muslahathi Committees in Pakistan are used

to explore legal pluralism, hybrid institutions that allow deliberative democ-

racy to seek workable responses to injustice. Formal and traditional systems

can show mutual respect and check each other. On the basis of purely quali-

tative evidence, it is argued that Muslahathi Committees are restorative justice

programs that sustainably reduce revenge violence, make a contribution to

preventing Pakistan from spiraling into civil war, and assist a police force with

low legitimacy to become somewhat more accountable to local civil society.

These contributions are limited, but could be more significant with modest

investment in human rights and gender awareness training to control abuses

and increase accountability.The ruthless, murderous, divisive politics of polic-

ing and restorative justice in Pakistan seems a least likely case for deliberative

democracy to work. In limited ways it does.

Legal Pluralism and the Pakistan Policing Context

This research is about contests and synergies between state and

non-state justice. Legal pluralism is about the idea that different

legal systems can coexist in the same social field (Merry 1988: 870).

Legal pluralism often bogs down in debates about whether forms of

custom should be described as legal systems. Our interest is not in

that question, but in exploring inductively effects of new forms of

legal hybridity. The hybridity in focus is distinctive because it is as

much about the police role as the lawyerly role in legal pluralism.

While the research embraces conventional concerns of the legal

pluralism literature such as legitimacy, its particular focus is on the

effects of legal hybrids on the vitality of democracy and on damp-

ening cycles of violence in spaces of extreme violence. What is

Our thanks to the Australian Research Council for funding of this research.

Please direct all correspondence to John Braithwaite, Regulatory Institutions Network,

College of Asia and the Pacific, Australian National University,Coombs Extension Building,

Fellows Rd., Canberra 0200, Australia; e-mail: john.braithwaite@anu.edu.au

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Law & Society Review, Volume 48, Number 3 (2014)

© 2014 Law and Society Association. All rights reserved.

discovered inductively is something approaching Peter Fitzpatrick’s

“integral pluralism” where there is “mutual constitution”:

Custom supports law but law transforms the elements of custom

that it appropriates . . . Law, in turn, supports other social forms,

but becomes in the process part of the other form (Fitzpatrick

1984: 122).

Legal pluralist scholarship teaches that “Custom used to be treated

as the precursor of the law, its evolutionary source” (Moore 1978:

13). Yet scholars have long recognized that custom is “semi-

autonomous,” constantly competing with and appropriating state

law, and vice versa. Justice occurs in many rooms (Galanter 1981).

Muslahathi Committees concretely build a room that appropriates

some justice resources from an attached police station, other justice

resources from customary Jirgas outside, others from private legal

practitioners and the judiciary. They are an incipient form of

“directly deliberative polyarchy” (Cohen and Sabel 1997). The

interest is less in whether what Muslahathi Committees do is called

law or regulation. It is in how state and non-state justice can coexist

to forge more democratically rich amalgams that might be effective

in reducing violence.

Civic republicans worry whether citizens can have the energy to

engage with deliberative democracy across the executive and leg-

islative branches of governance, and the rigor to do so in ways that

guard against tyrannies of the majority and other dominations

(Pettit 1997, 2012). Pettit concludes that “contestatory” institutions

rather than directly deliberative ones are the fundamental vehicles

for delivering freedom as nondomination. Restorative justice

theorists, however, have argued that deliberative democracy that

engages all stakeholders is more plausible in the judicial than in the

executive or legislative branches of governance (Braithwaite 2002:

130–167). This might be especially true with something so impor-

tant to peoples’ daily lives as cycles of revenge killings. Here they

are willing to invest time and resources in both deliberation and in

creative checks and balances against abuse of power. Indeed, to a

degree, we empirically find this to be so in rural Pakistan. Hence,

restorative justice theory conceives deliberative democracy in the

judicial branch as a way of reengaging citizens who are jaded and

cynical about democratic politics (Braithwaite 2002: 130–167),

while continuing to place deep reliance on separations of powers as

guarantors of freedom as nondomination. Separations of powers

are usually semi-autonomous. Judges do not control the budgets

provided to the judicial branch, for example. A crucial normative

issue for republicans who believe in freedom as nondomination

that is checked by separations of powers is whether variegated

532 Learning from Pakistan