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Towards justice in development

Michael Woolcock's picture

Law and justice play a fundamental role in development processes. In rich and poor countries alike, regulations and rule systems—consisting of a complex web of formal institutions, informal arrangements and hybrid social norms—shape everything from education, land use and agriculture to labor standards, market exchange and everyday social interactions. But even after many decades of concerted effort, much remains to be learned regarding how equitable justice systems emerge and how the international community can best support this process.This ongoing confusion largely stems from a singular focus on reforming formal justice institutions, and in the process missing important contests around rights and entitlements that occur across and within broader justice systems.    

Research in the arid lands of Kenya, for example, finds that the state justice system typically plays a marginal role even in enforcing rights around some of the most serious issues faced by the Samburu and Turkana—including disputes over natural resources, cattle rustling, sexual offenses, and murder. Instead, local processes are often viewed as more equitable, accessible and affordable, with community members frequently withdrawing cases from local courts, preferring instead to use mechanisms based on local norms. Development actors in such contexts are increasingly questioning the efficacy of state-focused, top-down justice reform, and the lasting impact that the dominant approaches of the last several decades have had on enhancing the justice systems used by most poor people most of the time. 

Encouragingly, there is increasing recognition that while multiple rules systems and legal orders (a situation known as ‘legal pluralism’) regulate conduct within all societies, a defining characteristic of effective ‘development’ is the steady emergence of greater coherence between these constituent elements, and the emergence of legitimate overarching mechanisms for reconciling lingering differences. In contexts lacking such coherence, some development agencies are beginning to engage with the range of formal, informal and hybrid institutions present at the local level. Donors cite a need to move away from foreign ‘best practice’ models and instead promote context-specific ‘best fit’ solutions that draw on local experiences and promote accessible and socially relevant dispute resolution processes. To their credit, groups within a range of development organizations have been recommending this type of approach for some time; yet despite these welcome efforts, there has been remarkably little systemic progress in engaging with local justice systems.

Why has there been little progress in operationalizing a different approach to justice reform? 

There are certainly powerful institutional imperatives reinforcing the status quo. Development assistance, across a variety of sectors, targets formal institutions that are familiar to practitioners, even though such institutions may play only a relatively minor role in shaping how the broader system actually functions, especially as it is experienced by marginalized groups. Similarly, lawyers that staff the world’s legal development institutions learned the primacy of formal institutions in prestigious (Western) law schools, and professional norms predispose them to regard ‘the law’, and the optimal process for reforming it, as essentially similar across different country contexts. For their part, development practitioners tend to offer technical solutions to what should instead be viewed as adaptive problems, because providing technical solutions is what ‘real professionals’ do. Furthermore, it is often easier to measure impact in the formal sector as opposed to community-based processes: measuring ‘best practice’ outputs (laws passed, staff trained) or infrastructure development (courts built) is often far easier than understanding the inherent messiness surrounding how and why disputes are resolved in specific contexts, or what the international community can do to help reduce injustice around issues that are complex, unstable and often deeply contentious.

What can be done to make justice reform more effective for marginalized communities?  

There are certainly technical aspects of, and credible ‘best practice’ approaches to, enhancing the effectiveness of the justice sector; there are indeed professional legal skills and sensibilities that apply across contexts. The problem in developing countries, however, is that this knowledge applies to only a small sub-section of the overall rules systems under which most people, and certainly most marginalized groups, actually live. The enduring challenge is thus working out how to make justice projects more responsive to local idiosyncratic realities, and how to ensure that any change process is legitimate in the eyes of key stakeholders. The World Bank’s Justice for the Poor (J4P) program, which currently operates in more than ten countries, endeavors to grapple with these challenges. This work, in concert with the innovative activities of other agencies, provides at least three reasons to be optimistic about the future.

First, donors are increasingly supporting contextualized monitoring and evaluation that gives projects the flexibility to operate outside the state justice sector. Evaluating the performance of the justice sector is difficult. Justice outcomes may be hard to measure, and fundamental questions remain about how institutions and equitable processes emerge, but donors like DFID, AusAID and others are undeterred. These organizations are exploring evaluation methodologies that take into account the complex and non-linear nature of ‘progress’ in justice reform. DFID has embraced a ‘Drivers of Change’ approach that seeks to better understand the local political economy of change to meet the needs of the poor. AusAID is supporting the J4P program in Vanuatu to build a stronger evidence base through engagement with local groups around issues of land leasing and natural resource governance. Lessons from these activities contributed to the design of AusAID and NZAID’s 5-year land reform program, Mama Groun.

Second, donors are also beginning to embrace more realistic timeframes for implementation and results. The World Bank, through the WDR 2011, is increasingly recognizing that progress in creating legitimate institutions will be difficult to measure, may occur on non-linear trajectories, and take decades to consolidate, even in the fastest reforming countries. Other donors are working to develop extended project implementation periods which take into account uneven project trajectories. AusAID, for example, is evaluating the merits of a proposed 18-year timeframe for its ‘Revitalising Indonesia's Knowledge Sector for Development Policy’ program

Finally, a range of development projects are increasingly incorporating justice and dispute resolution components that engage with both national and local dispute resolution processes. Multinationals now regularly include dispute resolution safeguards in infrastructure projects.  Increasing numbers of legal empowerment projects are endeavoring to link state justice system with local development processes.  In Nigeria and Sierra Leone, World Bank health sector teams are partnering with the J4P program to incorporate social accountability within lending activities.

These activities certainly do not mean we understand how equitable justice systems emerge. But they may suggest that development institutions are beginning to move away from focusing exclusively on ‘best practice’ solutions to those problems that inherently require a different approach.  The core of this new approach is crafting context-specific ‘best fit’ solutions that respond to problems as perceived by actual users of prevailing justice systems, and in which safe spaces are created for local experimentation, the legitimate assertion of rights, the timely mediation of disputes, and effective real-time learning. This learning process may occur both inside and outside the state justice system, and on a timeline and trajectory we do not yet (and perhaps cannot ever) understand. The challenge for development agencies is to reconfigure their structures, approaches and incentives to make it more likely such processes become an everyday reality.
 

Comments

Very good and useful post, Michael and Peter, making a number of fine points regarding such matters as more realistic M&E, longer M&E time frames, and integrating social accountability into health projects. I'm going to cite and quote it later today in weighing in on plans for an overseas meeting on monitoring, evaluation and development research. The one part in which your analysis is incomplete even to the point of being unintentionally misleading (or intentionally politic) is "Why has there been little progress in operationalizing a different approach to justice reform?" In addition to the factors you correctly identify, a number of others are at play. These include: 1. Current approaches serve the interests of many governments: They are politically safe; they overlook or even mask the how corruption, gender biases, patronage, elite control and other undue influences shape justice systems; and they keep funds flowing to government personnel and projects when at least some such funds might be better spent on civil society and other independent efforts. 2. Current approaches serve the interests of many development practitioners, whose advice is based on what they know how to do rather than what might need to be done: These approaches pour funds into what many such practitioners know about, which is providing technical assistance rather than political economy analyses and solutions; and by avoiding alternative and potentially more effective development strategies and activities, they avoid posing threats to such practitioners' expertise and employment. 3. Current approaches serve the interests of many international development institutions: It is often far easier to maintain good relations with a high government officials by telling it what it wants to hear and funding programs accordingly, as opposed to challenging their perspectives, prerogatives and priorities. I don't want to be too sweeping in this critique. As we all know, the extent to which any factors are at play vary from country to country, institution to institution, and official to official. And as you point out, technical analyses and solutions are part of the picture (though I would argue that in some contexts the international community's ability to effectively promote them is limited or nonexistent until other issues are dealt with). It's just that they are often overestimated to the neglect of addressing more fundamental political, economic and social problems...and the solutions and strategies appropriate for grappling with them.

Thank you for your comments Steve. I completely agree that there are a host of factors that contribute to difficulties in operationalizing a new approach to justice reform; and you identify several important ones. We tried to briefly touch on your second point of how current approaches serve the interests of development practitioners, but you raise additional important questions around the interests of government and international institutions. Comprehensive stakeholder mapping and political economy analysis—in addition to better understanding the experiences of users—will be critical in identifying pathways to change in any (‘justice’) project. I would suggest that reform efforts should first understand challenges faced by groups and individuals in a particular context, and then work to develop responses to support innovative arrangements—be they government, civil society, or others—that may help deliver more equitable and accepted outcomes. This might mean working through government, with civil society or hybrid institutions—as I would note that civil society and other actors are also not immune to corruption, biases, or elite control. Understanding how we might address some of the problems you identify certainly requires us to take evidenced-based, iterative approaches to reform that engage with a variety of potential partners.

This is an excellent post. Why is there not a greater attempt to invest in local institutions that could study the local context and make practical suggestions on how to create these hybrid justice systems? One would think that organizations working on the ground and staffed by people intimately familiar with their own sociopolitical environment would be much better at formulating workable plans to do what you say. This approach would also be much cheaper than depending on outsiders to analyze and understand.

Submitted by Ed Rekosh on
Great post and interesting discussion. It seems like it ought to be intuitively obvious that "best fit" is more important than "best practice", a point made well by Woolcock and Chapman's post. Sustainable development is all about context. And if context is paramount, then Seth Kaplan's point about placing priority on investing in the local ought to be just as obvious. In other words, to support Kaplan's point: surely it is better to invest in enabling those who know the context most from their own direct experience to acquire the more technical - and easier to learn - expertise on practices they can adapt. But usually the emphasis of development projects is on doing it the hard way: those with the most knowledge of outside practices try to learn the complex and illusive context in which those practices will be applied. Doesn't really make sense. Undoubtedly the reasons for that have much to do with what Steve Golub is alluding to. Investing in the local might make the most sense in the long run. But, ironically, there are a lot of disincentives in the development world to taking the long view -- budget cycles don't cooperate, for one thing.

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