Restorative Justice, Policing and Insurgency: Learning from Pakistan

Published date01 September 2014
Date01 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:
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT