Courts in the Global South often operate under conditions of weak statehood, political instability, and social fragmentation – yet research shows they can still function effectively, sometimes in unexpected ways.
Editor's note: You can listen to this podcast on Spotify, Apple Podcasts, or wherever else you get your podcasts.
Courts in many parts of the Global South face conditions radically different from those in which western models of judicial fairness were developed. In this episode of VoxDevTalks, Fiona Shen-Bayh discusses a new review of the empirical research, arguing that the standard criteria for evaluating courts – impartiality, neutrality, and consistency – reflect the particular history of advanced industrialised democracies and may lead to the wrong conclusions when applied elsewhere. The conversation covers non-state justice systems, authoritarian courts, political instability, and the possibilities for reform grounded in local context.
Why western judicial standards don't travel well
The canonical definition of judicial fairness – what scholar Martin Shapiro called the "triad logic of conflict resolution" – requires that disputing parties accept a third-party adjudicator as impartial, that the adjudicator is genuinely neutral, and that its reasoning follows pre-existing norms. Shen-Bayh argues these conditions were derived from the experience of courts in North America and Western Europe, and have been inappropriately exported to the Global South as universal benchmarks.
A related problem, she notes, is what the literature calls the "fallacy of legalism" – the assumption that creating formal laws and courts is sufficient to bring about social change. This belief, deeply embedded in rule-of-law promotion programmes that proliferated after the Cold War, treats state weakness as tantamount to state failure.
"There are a lot of contexts where the absence of the state does not necessarily mean the absence of rules and order."
'Stateness' and the rise of non-state courts
One of the three main challenges Shen-Bayh identifies is 'stateness' – the extent to which a state exercises authority across its territory. Where stateness is weak, non-state actors step in: customary authorities such as traditional elders, NGOs, and sometimes criminal organisations or rebel groups.
These informal bodies often achieve results that rival or exceed those of state institutions in terms of local legitimacy. Importantly, Shen-Bayh stresses, informality does not mean non-binding: communities may regard customary courts as more authoritative than state courts precisely because they reflect local norms and are more accessible.
The review includes discussion of Taliban justice in Afghanistan as an illustrative case. Shen-Bayh describes research showing that Taliban courts practising Sharia law have upheld due process and impartiality in unstable regions, providing predictability in legal proceedings during civil conflict.
Courts under authoritarian rule
A second strand of the review concerns how courts function in authoritarian regimes. Contrary to the intuition that dictators simply use courts to serve their own interests, Shen-Bayh shows that courts – including relatively independent ones – can serve a range of state functions. They help establish property rights that attract foreign investment, and allow litigants to bring grievances against the state, feeding information upwards to central governments about conflicts that would otherwise go undetected.
"Sometimes dictators are using these institutions to institutionalise the justice process, but that doesn't mean that they're also not using these judicial bodies for their own personal [interests]."
China is a recurring case study: courts have been used both to monitor administrative conflicts and to signal the regime's commitment to popular moral outcomes, even when these run contrary to formal law.
Political instability and judicial independence
The third challenge Shen-Bayh addresses is political instability. Conventional wisdom holds that electoral competition strengthens judicial independence, because independent arbiters are needed to regulate disputes and make legislative bargains credible.
However, in weak or emerging democracies – or where regime change is anticipated – competition can produce the opposite effect. Incumbents may pack courts to entrench their interests before leaving power, while judges may strategically align themselves with whoever they expect to hold power in the future.
"When there is a lot of political instability, as is often the case in weak or emerging democracies, or if there's about to be a regime change, which can really heighten uncertainty, competition and judicial independence don't necessarily go hand in hand."
Shen-Bayh also notes that the degree to which judges see themselves as part of an international legal community can matter: a strong sense of judicial corporatism and connectivity with Global North counterparts may help courts resist authoritarian encroachment.
Social integration and legal mobilisation
Even courts that fall short of western standards can, Shen-Bayh argues, be a vehicle for social transformation, but only if citizens have access to them and understand how to use them. The review points to research from Latin America and China showing that developing a 'legal conscience' is an essential first step. When people understand their rights and how to assert them, they can use courts to drive change from the bottom up.
Civil society plays a crucial supporting role. Shen-Bayh highlights law societies, bar associations, human rights groups, and lawyers as actors who can help educate people about judicial processes and support their claims once they reach court.
Rethinking reform
The review's overarching argument, as Shen-Bayh presents it, is not that courts in the Global South are failing, but that reformers have been asking the wrong questions. Top-down, state-centric approaches to judicial development have consistently underestimated the complexity of what is already working on the ground. Effective reform requires engaging directly with courts as they actually operate, understanding local context and custom, and being clear about whose standards reform is intended to serve.
One practical implication Shen-Bayh draws out is the case for delegating power to customary institutions where state courts are costly and inaccessible – a model already operating across much of Africa. Another is making use of the rapidly expanding stock of digitised judicial data from the Global South, which is helping scholars, practitioners, and litigants alike understand patterns in everyday jurisprudence.
Reference
Ríos-Figueroa, J, and F Shen-Bayh (2025), "Courts in the Global South," Annual Review of Political Science, 28.