Safeguarding Without Supremacy: A CLP Framework for Managing Tensions Between Customary Law and Human Rights

Abstract

The enduring tension between customary law and human rights remains one of the most significant challenges to strong legal pluralism. Critics argue that pluralist recognition of communal traditions risks entrenching practices that violate individual or minority rights, particularly in areas such as gender equality and children’s rights. This paper responds to that critique by advancing a Communal Legal Pluralism (CLP) framework that emphasizes internal dialogue and reform rather than external imposition. Drawing on ethnographic insights from legal anthropology and comparative constitutional analysis, the study explores how communities can navigate evolving human rights norms from within. Case studies such as the reform of palava hut ceremonies in Liberia illustrate the capacity of customary institutions to address gender-based violence when supported by insider reformers and intercultural interpreters, including NGOs, hybrid courts, and local leaders. The paper further examines how constitutional models in South Africa and Ecuador balance legal pluralism with rights guarantees, highlighting the role of “safety nets” provided by state and international bodies. These external actors are reconceptualized not as supreme arbiters but as subsidiarity-based safeguards that intervene only when community processes fail to meet minimum standards. The theoretical contribution lies in offering a process-oriented model that preserves the moral embeddedness of customary systems while ensuring the protection of fundamental rights. In doing so, the paper moves beyond the entrenched universalism–relativism divide to propose an ethically grounded, pluralist approach to harmful traditional practices. This framework strengthens the normative and practical foundations of CLP, demonstrating its potential to reconcile communal autonomy with universal rights in a dynamic and context-sensitive manner.