Australasian Aid

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Australasian Aid International Development
Workshop ANU 13 February 2014

• The Imperative to
• Realign the Rule of Law to Promote Justice

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Reforming Justice

• Judicial reform in international development
• How can promoting the rule of law become more
  effective?

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Challenge

• Justice is fundamental to society and human well
  being
• Courts are the key agency of state to protect and
  promote justice
• But courts are often non-responsive
• inaccessible, inefficient, incompetent, corrupt,
  impunity ...
• reforms blocked by power-holders
• Aid agencies spend billions to promote rule of
  law around world
• Results often disappointing, limited impact
• Asian Development Bank 2008 under competitive
• Promoting justice is important but very difficult
• Current imperative to improve and refine
  approach

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Global context

• Massive growth x100-fold over 20 years
• World Bank 1,400 projects, 5.9 billion (Dañino
  R, 2005)
• The state, market and individual
• State-managed growth 1950-60s
• Structural adjustment 1970-80s
• Washington Consensus neo-liberal free-markets
  1989-2000s
• Enabling and capable states 9/11 ...
• Prevailing justifications are instrumental
• Economic - to promote growth
• Political - to promote good governance
• Social - to promote safety and security
• Humanistic to empower individual, and human
  rights

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Critique of Experience

• Problems of theory, knowledge, method, results
• Confusion over purpose
• Torch-beams in the night some evidence justice
  correlates with growth, but empirical evidence of
  justification is incomplete, ambiguous, contested
• Dollar/Kraay, La Porta, Rajan, Rodrik, Stiglitz,
  Sachs, Easterly, Collier
• Traditional top-down focus on thin procedural
  reforms to mainly improve court efficiency is
  insufficient
• WDR 2006 equity gap critique Woolcock/Sage ...
• Difficulties in measuring success
• Few results mounting chorus of disappointment
  Trubek/Galanter, Blair/Hansen, Carothers,
  Messick, Hammergren, Jensen ...

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Two analytic questions

• Purpose what is the goal of reform?
• What is justice, why is it important, how
  is it promoted?
• Evaluation how is success to be measured?
• What does a more just society look like?

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Purpose

• Consensus judicial reform is important - but why
  ?
• Role of state supply of public goods inc.
  justice
• Historically, economic growth justification has
  primacy
• Re-invention
• Empowering the poor, pluralism and non-state
  justice (eg. WBs J4P)
• Convergence with human rights discourse (eg. UNs
  A2J, and ICJ)
• Political economy , constitutionalism and
  distribution (eg. DFIDs drivers of change)
• Discourse riven by contest over theory
• Instrumental rolenew institutional economics,
  rules of the game (Weber, North)
• Constitutive rolefairness, rights, capability
  and opportunity (Rawls, Dworkin, Sen)

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Evaluation

• Evaluation of performance
• Development performance perceptions of
  disappointment
• Evaluation gap between rhetoric and practice no
  orthodoxy
• Confusion over purpose accountability v learning
• Paradigm war over methodology
• Meta-evaluation of reform rarely done, poorly
  done

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New empirical evidence

• Asian Development Bank 1990-2007
• AusAID in Papua New Guinea 2003-7
• Practitioners across Asia/Pacific 2000
• New evidence
• Risk of failure of existing approach - ADB
• Initial successes promoting substantive rights
  South Asia
• Formative capacity to demonstrate success PNG

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Conclusions Purpose

• Judicial reform should promote justice
• constitutive human-centred justification
• Justice is concerned with fairness and equity

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Conclusions Evaluation

• Evaluation is normative frameworks of law
• international, domestic, customary
• Civil wellbeing is measurable
• improving access to and use of rights

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