Addressing customary laws and practices that conflict with formal laws

Drafters should take steps to ensure that customary practices and laws do not condone or allow forced and child marriages. Many countries separate legal systems, and formal, customary, and even state-sanctioned customary legal systems may co-exist. Conflicts among these systems, both in the written laws and their application, can arise. While one system may provide protection to women from discrimination, another system may conflict in law or practice to discriminate against women. Laws should resolve conflicts between customary and formal laws in a manner that respects the survivor’s human rights and principles of gender equality. (See: UN Handbook, p.15) Drafters should ensure that any supremacy laws include outreach to local and customary leaders to facilitate the implementation of these guarantees. Laws should ensure that use of a customary adjudication mechanism does not preclude the victim from accessing the formal justice system.

(See: Harmful Practices)

Promising Practice: Fatwas, or Islamic legal pronouncements, are issued by scholars authorized to pronounce judgments on Sharia law. In 2001, two Bangladesh High Court judges declared it illegal for any authority except for the courts to issue fatwas. When the judgment resulted in widespread backlash, women’s organizations supported them and leveraged global support for the decisions. (See: Negotiating Culture: Intersections of Culture and Violence Against Women in Asia Pacific, Mishra, 2006, p. 31)

 Previous Topic Inheritance laws