Empowerment and Innovation Strategies for Law, Justice, and Development
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by Sam Muller and Maurits Barendrecht in “The Justice Innovation Approach: How Justice Sector Leaders in Development Contexts Can Promote Innovation.” The authors stress competition among potential providers (alternative dispute resolution is envisioned as a potential competitor to traditional judicial processes) as well as a redefinition of members of society as stakeholders. Within this framework, Muller and Barendrecht emphasize a few key aspects of desirable “justice innovation.” First, it is low cost and bottom up. Second, it emphasizes that even though policy goals should be clear, the factors leading to their realization will inevitably be complex, reflecting the environment on the ground. Third, this version of justice innovation favors publicprivate partnerships in the delivery of access to justice, including something like a “Build-Operate-Transfer” model (in which investors are permitted to build and operate a firm for a period of time in exchange for, among other things, an agreement to transfer possession eventually to the owner). Finally, this version emphasizes the importance of protecting and rewarding innovation and experimentation. The authors offer a pragmatic approach to the question of how to deliver a public good, such as justice, through a model based on the ideal of private sector competition. Such an approach may have the virtue of encouraging clearer quantification and greater accountability through a “marketized” focus on systemic “profits,” in the form of increased satisfaction with access to justice, which might permit more precise measurement of the “deliverables” of reform. At the same time, some implications of competition in the justice sector remain unclear. For example, if competition leads to the proliferation of dispute resolution fora, will the “forum shopping” that likely ensues improve the justice sector through regulatory competition, or encourage negative externalities (i.e., gaming the system)? More profoundly, what danger might privatizing justice pose to public policy goals? As for legal empowerment, this concept is taken up in Hassane Cissé in “Legal Empowerment of the Poor: Past, Present, Future.” Now that the “idea that law has an important role to play in promoting economic development has become well established,” Cissé notes that the “traditional focus on institutions and government machinery has been widened to bring the people themselves into view.” Legal empowerment of the poor (LEP) is in part a reaction to classical rule of law approaches, which focus too much on “institutions and state structures,” perhaps with the unstated premise that these automatically benefit the poor, rather than on whether such benefits are quantifiably delivered. Cissé emphasizes the point made by Muller and Barendrecht that earlier approaches have been overly top down and therefore likely to misapprehend the context of those on the lower rungs of society. Despite these improvements, Cissé notes some difficulties with LEP. First, there is the problem of “causality versus correlation” that characterizes the entire field of good governance policy—does economic empowerment result