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Judicial Reform and the Rule of Law

Date
Time (GMT +00) 17:30 18:30

Speaker:

Thomas Carothers, Senior Associate and Director of the Democracy and Rule of Law Project, Carnegie Endowment for International Peace

Chair:

Verena Fritz, ODI
Discussant:

Laure-Hélène Piro, ODI

1. Thomas Carothers began with the caveat that, as the 'rule of law' (RoL) is such a large concept, it would be difficult to cover comprehensively in a short presentation. His presentation contained two parts:
i) to dissect the concept of Rule of Law and examine its origins and use;
ii) to examine donor support to judicial reform.

2. The RoL emerged rapidly onto the international stage in the mid 1980s to early 1990s and was held up by the international community as the answer to many development problems. Four parallel strands of work were pursued during this first phase:

·  promoting RoL, in particular legal and judicial reform, as a key component of the governance agenda in the context of seeking to more effectively implement the market reform agenda;

·  working with civil society organisations to increase access to justice through legal aid in order to promote greater social justice and human rights protection;


·  promoting RoL as part of a broader project seeking to promote democracy, e.g. support to Latin American democratic transitions, with a focus on state institutions;

·  attempting to strengthen judiciaries as a component of international law enforcement efforts, such as the war on drugs. A related strand has emerged recently in the context of the war on terrorism, with the language of the RoL being used in countries such as Afghanistan and Iraq.

3. Carothers argued that all four strands grew considerably during the late 1990s and, despite having different philosophy, goals and personnel, were perceived as one area of work on law promotion. Elements included judicial strengthening, legal empowerment, anti-corruption, police reform, transitional justice, legal aid and legal training.

4. Carothers suggested that, by the end of 1990s, the RoL concept had been universally accepted in the donor community. This was partly because, similar to concepts such as governance and civil society, it is highly flexible and therefore able to command pan-ideological appeal across the political spectrum.

5. Given this panoply of interests, Carothers questioned whether RoL is actually a coherent field. In particular he posed three questions:
(i) Are the different RoL strands consistent in some way? Whilst they all appear to have a shared concern at a superficial level, Carothers argued that, in practice, they were guided by different, and sometimes contradictory, objectives, definitions:

·  government bound by law;

·  belief in equality before law;

·  law and order;

·  predictable and efficient justice;

·  respect for human rights.

Although some argued that the binding concept was a belief in the centrality of the law, Carothers claimed that this was unsatisfactory because law pervades most activities in society and the scope of the field therefore become boundless.

(ii) What are the rationales for RoL work? Two rationales are actually at work: that RoL work is intrinsically good or that it is instrumental to achieving other development objectives, such as democracy or economic growth. However, although the instrumental rationales appear self-evident, they are not supported by empirical evidence. Is RoL actually needed to facilitate development? China achieved high growth rates without a western-style RoL.

(iii) What do we know about impact of RoL work? Surprisingly little is known about the real impact. RoL promoters have not invested much in research; and in-depth research on impact is challenging due to conceptualization problems. Impact can be measured at different levels: macro (e.g. crime rates, investment climate); and micro (e.g. time spent in pre-trial detention, court cases processed within one year).

6. In conclusion, Carothers claimed that despite its place in development wisdom, the RoL concept actually appeared incoherent when examined in any detail.

7. Moving to the second part of his presentation, Carothers explained that judicial reform, in particular reforming courts, is the central component of the RoL work that is undertaken by donors. Judicial reform shares problems that are consistent with the attempt to reform all state institutions but it also has difficulties unique to the judicial system:
(i) Shared difficulties:

·  inherent resistance to reform because of the challenge to the status quo;

·  as the main activity, training is unable to tackle dysfunctional courts systems because lack of knowledge is not the key problem;

·  one of the central problems within developing country institutions is lack of resources and this is not addressed through donor activities such as training;

·  improving judicial effectiveness requires engaging with political issues, such as political interference;

·  whilst safety and security is a key public concern, this is often not translated into support for judicial reform, which means that building political will is difficult;
(ii) Unique difficulties:

·  courts are highly decentralised institutions so it is difficult to encourage or impose systematic change;

·  courts are designed to be relatively independent and so improving judicial accountability is often difficult.

8. Carothers concluded with the following points:

·  Judicial reform had generally been disappointing. A fair amount of aid has been channelled to this area, often without substantial results.

·  In response, there has been a general turning away from focus on judicial reform and the donor community were instead beginning to focus on (i) sectoral approaches to the justice sector; (ii) a bottom-up/beneficiary focus centred on the concept of legal empowerment; (iii) using problems rather than institutions to define the scope of their work.

·  The lessons learnt in relation to judicial reform are reflective of the overall RoL field. The rationale for pursuing RoL objectives is not as robust as it once appeared: its impact is uncertain and there is a need to reach understanding in terms of problems rather than institutions.

·  What we have been treating as a field is only just starting to become one after 20 years.

9. Laure-Hélène Piron covered the following points:

·  In the context of the consensus within the development community of the need for poverty to guide objectives, the challenge for RoL practitioners is how to integrate a poverty focus into RoL agenda. This is difficult for a field dominated by lawyers and one of the main lessons has been that, in order to work on the RoL in a pro-poor manner, there is the need for different skill sets, such as those provided by anthropologists and institutional development experts.

·  When considering the pro-poor perspective donors should note:
(i) the existence of legal pluralism and resist the impulse is to simply work on formal institutions, when evidence suggested that informal justice mechanisms were more relevant for the majority of poor people.
(ii) that justice institutions are inherently conservative and donors therefore require the capacity to undertake political analysis in order to understand the political, rather than simply technical, barriers to reform

·  Although donors believed that the RoL is important for development they are struggling to see how to deliver it. Piron rebutted Carothers' use of China as evidence that the RoL is not necessary for economic development, arguing that their lack of human rights protection, such as health and safety standards, meant that their development path was unsustainable.

·  Piron contrasted developmental and neopatrimonial states, suggesting that the RoL is seen as consistent with the conception of a developmental state because supports the needs for predictability that is absent in neopatrimonial states and which enables citizens to claim their rights.

8. The discussion covered these points:

·  Establishing the RoL during democratic transition when neither state nor citizens are clear about the concept. What happens when citizens so fundamentally mistrust institutions that they aren't prepared to follow RoL? What can the government do? In the case of Somalia, projects with elders in Northern Somalia were tried to introduce some form of stability using police and courts as a symbol of state presence. In the parts of Somalia where there is no state authority there is a bottom up process of introduction of RoL. The challenge here is to link local level mechanisms with state institutions. Trust building depends on whether state institutions respect and respond to local institutions.

·  How to ensure courts work efficiently and effectively under a decentralised courts system? Donors have different opinions about judicial management and these get played out in developing countries. In truth, courts are also relatively inefficient institutions in most western systems.

·  Economic success and RoL in China and East Asia. Foreign investment does not need RoL but it does need to be able to make a profit. In China, there are enough reliable rules to make business possible in combination with a vast market

·  Is it the case that political parties in neopatrimonial states contain a large number or lawyers? In common law systems, law is used more for social and political purposes. The law can do more because it is based on precedents rather than codes. In East Asia (defining these countries as developmental) we can see that there is a low level of lawyers in these societies. In Mandarin systems the civil service performs the functions that the law performs in countries which use common law.

·  The relationship between aid, resourcing, and judicial reform. In general, governments rather than donors should provide adequate resources for court systems. Technical assistance should not generate high follow-up costs (e.g. maintenance of advanced computer software handling court cases)

·  The focus on legal empowerment where civil society is not benign. There is a need for caution when giving money to civil society organisations as local NGO activists may be the only ones making demands for reform.

·  An example of successful RoL donor aid. These mainly occur at a micro level. For example, pre-trial detention has been greatly reduced in a number of countries.

·  The difficulty of influencing informal justice systems. Informal justice is new area of work because donors have been too cautious and have avoided giving money to these systems - e.g. US aid cannot go to Sharia courts. One option is to encourage better transferral access between informal and formal systems - to support people to access formal system if they cannot get justice in informal systems. This is micro-level work which can't be approached with large funds. Bad practice by donors needs to be documented e.g. tendency to try to formalise the system.

·  Looking at the record of failure in government reforms across the board, is it the case that there was a body of research based knowledge that could have been harnessed in designing aid programmes for judicial reform? There has not been much learning on RoL and there is very little understanding in our own societies of how courts have been made less corrupt in our own countries. There is a small body of academics researching legal systems but this is usually about western systems. 

Description

The 3rd meeting in the (Re-)Building Developmental States: From Theory to Practice series looked at the concept of 'Rule of Law'.