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1 Australasian Aid & International Development Workshop ANU: 13 February 2014 The Imperative to Realign the Rule of Law to Promote Justice Dr Livingston Armytage Centre for Judicial Studies Adjunct Professor of Law, University of Sydney

Australasian Aid & International Development Workshop ANU: 13 February 2014

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Australasian Aid & International Development Workshop ANU: 13 February 2014. The Imperative to Realign the Rule of Law to Promote Justice Dr Livingston Armytage Centre for Judicial Studies Adjunct Professor of Law, University of Sydney. Reforming Justice. - PowerPoint PPT Presentation

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Page 1: Australasian Aid & International Development Workshop  ANU:  13 February 2014

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Australasian Aid & International Development Workshop ANU: 13 February 2014

The Imperative to

Realign the Rule of Law to Promote Justice

Dr Livingston Armytage

Centre for Judicial Studies

Adjunct Professor of Law, University of Sydney

Page 2: Australasian Aid & International Development Workshop  ANU:  13 February 2014

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:a) Economic - to promote growth b) Political - to promote good governance c) Social - to promote safety and securityd) Humanistic – to empower individual, and human rights

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Critique of ExperienceProblems of theory, knowledge, method, results: a) Confusion over purpose:

b) 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 …

c) Traditional top-down focus on ‘thin’ procedural reforms to mainly improve court efficiency is insufficient:

• WDR 2006: equity gap critique; Woolcock/Sage ...

d) 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

1. Purpose – what is the goal of reform?

What is justice, why is it important, how is it promoted?

2. 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:a) Empowering the poor, pluralism and non-state justice (eg. WB’s J4P)b) Convergence with human rights discourse (eg. UN’s A2J, and ICJ)c) Political economy , constitutionalism and distribution

(eg. DFID’s ‘drivers of change’)

• Discourse riven by contest over theory– Instrumental role

new institutional economics, ‘rules of the game’ (Weber, North) – Constitutive role

fairness, 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

a. Asian Development Bank: 1990-2007

b. AusAID in Papua New Guinea: 2003-7

c. 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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