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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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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
• 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 ...
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
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
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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