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Submitted by Jonathan Pavluk on
The use of "Western-modeled" justice institutions (by which, I think you must mean: independent courts, 'due process' and 'transparency', administrative regularities like consistent archival of written records to ensure a uniform basis for decisions and to demonstrate the 'rule of law', etc.) have always been what we (the International Financial community) have been quick to recommend to less developed countries as models for their justice reform agendas, precisely because we think that those are the types of institutions that would be most likely to favor the increased trade, investment, successful anti-corruption prosecutions, and a leveling of the playing field among various economic actors (women on a level playing field with men; corporations on a level playing field with households; etc.)that accord with our Institutional mandate for an economically freer, more integrated, more developed world. There are a lot of countries that are admittedly not ready for those kinds of institutions yet, simply because -- out of their current disadvantaged economic position -- they can't afford to lay out the expense to create them. So, I would have to ask, isn't the reason why hybrid court courts are worth investigating singularly in the very places that you mentioned, like Vanuata, the Solomon Islands, Sierra Leone, etc., simply a matter of the relative level of (un-)development of those economies? Isn't it axiomatic that the more economically developed that a country becomes, -- by acquiring all the trappings of the modern capitalist economy (corporate interests accumulating more and more resources and becoming more and more integrated across sectors; financial institutions like banks and private equity investors being responsible for an ever-icnreasing share of the movements of wealth across actors) -- the more it will see the urgent need for "rule of law" (meaning, a rule of law that protects corporations (!) from depradations) and "protection of property rights" (protection of corporations' property (?)). And, isn't it easy to recognize this global trend of development (could we call it a "natural law" of development (?)) -- where more sophisticated justice institutions are created and empowered to operate that will go hand-in-hand with the more sophisticated types of corporate and financial institutions whose interests they can continually enforce and protect -- can continue to evolve in societies in the direction that favors the increased recognition of corporate interests over the simple, unincorporated people's less sophisticated interests, until the trend reaches to an extreme, even hazardous point, where the traditional "rights" and "liberties" of the little people are questionable whether they still exist or not, or else have become marginalized to the point of insignificance? Or, at least, that is the debate that I think can develop over what is always going to be a clash of interests when you introduce modernity rapidly into a traditional society, and where well-financed global interests start to come in and assert prerogatives that formerly belonged exclusively to traditional institutions like village chiefs. So, ultimately it gets to the point where a society can start to debate the question: 'Must corporations have the same civil rights (free speech, involvement in political life, electioneering, etc.) and have those 'rights' protected without restriction by the courts, as individual citizens do? (Cf. Citizens United vs. FEC (2010), the US Supreme Court case, holding that corporations and associations (including political action committees like Citizens United have Constitutional "free speech" rights the same as individuals do), the case that President Obama has been so critical of.) So, when people talk about integrating community-based justice models like hybrid courts in a developing country, I always think this might be appropriate for a country that is going to have to go through a temporary phase in their economic evolution, and that these types of courts may be of ultimately limited utility; in that, their jurisdiction must be limited to 'community'-type problems and disputes (like family law, inheritances, criminal offenses, reintegration of combatants into community life), and will end up not having much of a role to play in business transactions. Do you agree?