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2 Hague J. on Rule L. 1 (2010)

handle is hein.journals/hagjuote2 and id is 1 raw text is: 1 Rule of Law Reform Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan David Pimentel* Rule of Law reform efforts in developing areas face daunting challenges: (1) the stigma of imperialism when Western-style institutions are imposed, (2) the unwill- ingness of local communities to embrace the reforms, and (3) a severe shortage of resources - human, physical, and financial. At the same time, some of these developing and post-conflict societies have highly functional customary law institutions (in Africa, e.g., a tribal chief applying a customary law handed down by oral tradition). These systems enjoy public con- fidence and function on very limited budgets - often providing prompt and acces- sible dispute resolution in the community. Unfortunately these indigenous systems do not always adhere to minimum standards of justice and human rights. In response, Rule of Law reformers in such communities are now working to codify customary law, and/or create rights of appeal from the customary courts. These efforts, however, threaten to deprive the indigenous communities of own- ership of and control over their law. Rule of law reformers must learn the lessons of colonialism, lest they perpetrate a new imperialism. Instead, customary adjudication should be subject only to collateral review. Statutory courts should defer fully to customary law adjudicators on the principles and application of customary law, and review their decisions only for compliance with minimum standards of justice and human rights (ideally those recognized in the local constitution and international human rights instruments the country has ratified). Collateral review dignifies customary adjudication by respecting the customary courts' determinations of law, while providing a safety net for those whose funda- mental rights may be violated in customary court process. This approach eschews the cultural imperialism inherent in so many rule of law reforms, relying on the * Former Head of Rule of Law for South Sudan, United Nations Mission in Sudan, Assistant Professor, Florida Coastal School of Law; BA, Brigham Young University; MA, University of Cali- fornia, Berkeley; JD, Boalt Hall School of Law, University of California, Berkeley. Special thanks to Mark Massoud, Keith Hagan, Sue Tatten, and Jason Antley for comments and insight and to Jason Antley and Antony Constantini for research assistance. Hague Journal on the Rule of Law, 2: 1-28, 2010 © 2010 TM cASSER PREss and Contributors doi:10.1017 /S1876404510100013

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