The Conflict Between Dispute Resolution and Justice Dispensation: A Case Study of Pakhthun Wali and Jirga

Abstract

Conflicts in society give rise to violence and political and economic instability. Society
responds to conflicts through dispensation of justice or dispute resolution. The former focuses
on giving involved parties their due usually through a formal legal process whereas the latter
involved incentivizing parties to reach an acceptable agreement during a dispute. The
dispensation of justice involves formal mechanisms that are complex and time-consuming and
requires a hefty amount of litigation cost. Dispute resolution usually takes place informally
through social institution, it decreases costs and is a less time-consuming mechanism.
However, dispute resolution and the dispensation of justice are in conflict. Dispute resolution
through informal social institutions gives rise to miscarriage of justice and aggravates the
conflict. This is entirely visible in Pakhtun society which spread across the world’s geo
strategically most important places, namely, Pakistan and Afghanistan. Pakhtun society is
living at the heart of national and international conflicts for centuries. Therefore, understanding
conflict between dispute resolution and the dispensation of justice is very important to think
about ways to promote peace. The existing literature explains the rising support for dispute
resolution but does not critically analyse the conflict between the mechanisms of dispute
resolutions and the mechanisms of dispensation of justice. The objective of this paper is to
examine this conflict between dispute resolution and justice dispensation. This article uses six
case studies of dispute resolution through two social institutions of Pakhtun society, namely,
Pakhtunwali and jirga and the method of direct observation to examine the conflict between
dispute resolution and dispensation of justice.