Jurisprudence- I

Legal Pluralism and Women’s Rights: The Role Of CEDAW

Submitted by Submitted to
Yash Sanodiya (123LLB20) Dr. Amita Punj

NATIONAL LAW UNIVERSITY

DELHI

2022
 Introduction

When "two or more legal systems coexist in the same social field," 1 this is referred to as legal
pluralism. It has a long and rich history 2 and may be found everywhere, from small groups to
world organizations.3 The link is not set between the non-state and the state system since
legal pluralism frequently has historical and political roots in the state.4 There are several
ways to describe legal pluralism. 5 Definitions virtually usually have utopian assumptions
underneath them about how the non-state and the state justice systems ought to function.
Here, the concept of "legal pluralism" is used as a catch-all phrase to refer to jurisdictions
with a variety of binding dispute resolution mechanisms. Human rights are significantly
impacted by legal pluralism when non-state justice systems have a significant amount of
independence from state authority.
For the purpose of this essay/project, it will be divided into different key arguments and each
part will elaborate upon the said title/heading of the same. The first key argument will
canvass the particular difficulties women have in getting access of rights/justice in post-
conflict, diverse legal pluralism. The second key argument will make the case that it is
essential to make sure that justice in non-state portion/sector protects the justice/rights of
women on the basis of legislation made for rights of the human and factual reality. The third
argument will present tactics that are appropriate sort of ‘’legal pluralism’’ found in not the
non-state but the state as well as concepts to assist conceive the link between non-state and
state justice.

1
SALLYAMERRY, ALegal Pluralism, 22 LAW & SOCIETY REV. 869, 870 (1988).
2
LAURENABENTON, LAWAANDACOLONIALACULTURES: LEGALAREGIMESAIN WORLD
HISTORY, 1400-1900 2-3 (2002).
3
PAULABERMAN, GLOBALALEGALAPLURALISM 4-5 (2012).
4
JOELAMIGDAL, STRONGASOCIETIESAANDAWEAKASTATES (1988)
5
Human Rights Coun., Report on the ISSUEAOFADISCRIMINATIONAAGAINSTAWOMENAINALAW
ANDAINAPRACTICE, 14, 44, U.N. Doc A/HRC/26/39 (Apr. 1, 2014) [hereinafter ‘’Discrimination Against
Women in ESC Life’’].
 Analysis
For women, it has to be made sure that they receive their rights which will lead to giving
justice to them.6 The emphasis now switches to how to effectively organise the interaction
between the extra-state judicial systems and the state in order to fully guarantee equality
among gender. On the part of the researcher, many suggestions on how to realise the rights of
women in a society which is legally pluralised, such as acknowledging the equality of the
sexes, making sure equal parity is there in the text, for example, the constitution, making sure
that people can challenge decisions made by the non-state system to the state system,
restricting, and continuing to increase the participation of gender equally (women with
respect to this article) in the non-state justice system.7 The purpose of this is not to suggest
novel policies that only apply in post-conflict environments. Instead, pushing these ideas
forward without understanding the various ‘’non-state justice’’ actors' motivations and the
range of possible interactions between both the non-state and state justice systems is risky
because it poses the risk of trying to undermine the entire reconstruction process.
Understanding the difficulties women confront in getting access to justice in post-conflict
societies with diverse legal systems is crucial. Definitions virtually usually have utopian
assumptions underneath them about how ‘’the state and non-state justice systems’’ ought to
function. Here, the concept of "legal pluralism" is used as a catch-all phrase to refer to
jurisdictions with a variety of binding dispute-resolution mechanisms. The terminology used
to describe non-state judicial systems is also disputed, reflecting preconceived notions about
the significance and/or ‘’legitimacy of the non-state system’’. The non-state system's legal
principles and practices may be derived from ‘’religious legal systems, native or customary
codes, customs, traditions, community arbitration codified civil law, or other alternative
conflict resolution practises’’.8 Consequently, these are terms frequently used to describe
non-state justice (informal, customary law etc.). These phrases, however, might not
accurately describe the practical reality. The state legal system, on the other hand, may/can be
quite ad hoc in nature, and state authorities may ignore or even be ignorant of the pertinent
legislation. Categorizing justice as either non-state or state gives significant benefits as
opposed to making an unproductive difference amid formal

6
PROGRESSAOFATHEAWORLD’SAWOMEN, supra note 11, at 76-77.
7
Id at 75
8
JOHNAGRIFFITHS, WHATAISALEGALAPLURALISM?, 24 J. OF LEGALAPLURALISM &
UNOFFICIAL L. 1 (1986).
and ‘’informal/traditional/customary’’. Regarding both substance and results, the divide
between states and non-states is value-neutral. It avoids the language connotations of words
like "informal," "traditional," or "customary," which by their very nature contain ‘’empirical
and frequently normative statements’’. The question arises, how long must a system exist
before it is considered traditional? Relying on the distinction between states and non-states
avoids these difficulties while also offering an impartial and truthful description.
Situations after a fight frequently make gender disparities worse. 9 There are greater chances
of gender-based violence, HIV infection, and unintended pregnancy. 10 Women's involvement
in decision-making "is not recognised as a priority and may even be dismissed as inconsistent
with stability aims,"11 according to research. Public services and infrastructure have been
destroyed by conflict, and "females are in the forefront of suffering, bearing the burden of the
socioeconomic implications’’.12 Following the fighting, women had disproportionately
difficult times obtaining title to family property, leaving them with no way to support
themselves.13 Therefore, it is crucial that women have access to justice. For a variety of
interconnected reasons, including the fundamental significance of legal diversity for the
progression of women's rights in post-conflict cultures, the difficulty of accessing justice is
exacerbated in post-conflict conditions. The governmental apparatus could be dishonest or
ignore violations of human rights, especially those affecting women. In actuality, because it
perpetuates societal disparities, the state system "may not give improved access to justice for
women." The public, especially women, may have a very low regard for the state's legal
system. The state capability which is very limited, and the significant involvement of the non-
state system must all be taken into consideration during the reconstruction process. The
question of whether there is a strategy that is helpful to attaining gender equality in legally
diverse, post-conflict nations is raised now that the specific difficulties that exist have been
recognised. Everyone agrees that the governmental structure has to be changed to better
safeguard the rights of women. The more difficult concerns include non-state justice, which
frequently emulates indigenous cultural and religious standards. The widespread use of non-
state legal systems in post-war settings highlights the underlying dilemma between advancing
gender equality in the universe and the "desire to protect cultural variety."

9
COMMISSIONAONATHEAELIMINATIONAOFADISCRIMINATIONAAGAINSTAWOMEN, General
Recommendation No. 30, 34, U.N. Doc. CEDAW/C/GC/30 (Oct. 18, 2013)
10
Ibid
11
Ibid
12
Ibid
13
Ibid
 Conclusion- The Way Forward
After a war, advancing women's rights necessitates cooperative interaction with ‘’non-state
judicial actors’’. Sadly, the (Convention on the Elimination of All Forms of Discrimination
Against Women) CEDAWACommittee’s strategy toward legal diversity lacks complexity.
‘’The intricacy of non-state justice in legal pluralism, post-conflict nations is highlighted by
theories of international relations on non-state justice that stress its oversimplified approach.’’
The CEDAW Committee notes a number of actions that might be implemented to guarantee
that women have access to justice in the General Reference. The CEDAW Committee's
(committee) proposals are centred on expanding the scope, capability, and standard of state
justice. It mostly disregards constructive interaction with non-state justice. What's more
alarming is that the Committee fails to acknowledge the various varieties of pluralism that
exist in both the General Recommendation and Concluding Observations. In conclusion, the
Committee handles legal pluralism in ‘’post-conflict nations’’ without having a thorough
knowledge of the contextual factors influencing the interrelated dynamics involved in the
reconstruction process. Although it may be enticing, it would be incorrect to discount
CEDAW and the Committee's contribution to attaining equality among gender in post-
conflict countries with legal pluralism. It is essential that the CEDAW approach access to
justice in a cultured manner due to its position as the foremost treaty on the rights of
women and the powerful impact the Committee has over ‘’state regulation and the policies
and programmes’’ of both domestic and international civil society organisations engaged in
post-conflict rebuilding. The Committee can use the examples and tactics on pluralism to
provide a comprehensive relative framework while observing governments. It can utilise this
framework to guide its research throughout the oral and written dialogue session in order to
close the knowledge gap and collect the data required to accurately categorise the different
types of legal pluralism that exist in the state. In light of the unique state's legal diversity, it
may then draw on customised tactics to suggest the most effective means to achieve equality
among gender.