Rule of Law
From Governancevillage WIKI
[edit] Defining the Rule of Law
The rule of law, like many terms in international development work, tends to mean many things to many people. Legal theorists have distinguished between formal and a substantive definitions of the rule of law, and between ends-based definitions and definitions based on institutional characteristics. Both formal and substantive definitions describe the rule of law as the presence of certain objectively verifiable criteria in the legal system (e.g. do the means of judicial review exist?), while substantive definitions also describe the rule of law based on certain standards of morality of the justice system (e.g. is the law “just”).[1] Theorists further distinguish between definitions of the rule of law that are ends-based, that is that highlight the societal ends of rule of law, and those that describe institutional characteristics (or the means) necessary to achieve the rule of law.[2] The five identified socially-desirable ends of the rule of law are: a government bound by law, equality before the law, law and order, predictable and efficient rulings, and human rights.
[edit] Rule of Law, Development, and Reform
Today, rule of law is widely recognized as imperative for sustainable social and economic development. [3] According to the United Nations (UN) Development Programme, there “…is a crucial link between rule of law, poverty eradication, human rights and sustainable human development.” The UN Millennium Declaration (2000) also calls for governments to “spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development.”
The notion that rule of law is important for development emerged and was promoted by the Law and Development School in the 1960s, a period when development was perceived as the process of imitating the West. The Law and Development School assumed that the Western legal model, “liberal legalism,” could be exported and take root in newly independent developing countries, yet it failed to account for the unique and varied institutional contexts of different countries. Despite its failure, many development organizations and donor agencies continue to define the rule of law by presenting a “laundry list” of institutions that reflect the historical experience of the West.[4]
Today it is increasingly recognized that informal justice systems handle many or even most disputes and other justice processes in many developing country societies. The Organisation for Economic Co-operation and Development suggests that non-state justice systems are the main providers of justice and security for up to 80 to 90 per cent of the population in fragile states [5] - populations that tend to be poor, marginalized and vulnerable, and in which women and individuals in rural areas are over-represented.[6] Formal systems, including courts, are, by contrast inaccessible and costly for these groups.[7]
Understanding and considering informal justice systems in rule of law and governance analysis, and supporting those indigenous institutions that respect human rights will ensure the effectiveness and sustainability of rule of law building initiatives. Imposing formal justice mechanisms on communities from the top down, without regard for existing traditional systems, ignores the reasons why these systems have been put in place. Even if existing rule of law institutions contribute to “bad governance,” a strategy of moulding them into a Western model addresses only the symptoms of bad governance rather than the underlying causes.[8] For example, if informal justice systems discriminate against women and girls, a strategy of simply imposing a different, formal justice system, fails to challenge the underlying discriminatory social norms and values that led to the creation of the informal regulatory institution, and ensures the persistence of gender-based discrimination.[9]
[edit] Key Documents on the Rule of Law
In her contribution to a series of working papers for the World Bank, Samuels identifies operational initiatives and policy approaches common to agencies and institutions active in rule of law reform in fragile or post-conflict countries, and extracts some key lessons.
Toope identifies indicators of a healthy legal system, establishes the principles for sound legal and judicial reform programming, presents programming options based on these principles, identifies risks inherent in various forms of justice programming, and discusses issues related to the evaluation of the results of judicial reform programs.
This World Bank publication explores the way rule of law is conceptualized in development circles and the institutional myths surrounding the rule of law model in order to understand why justice sector reform has had limited success.
This study, undertaken by the Development Assistance Committee in consultation with policy makers and field practitioners in affected and donor countries, provides in-depth analysis of the challenges faced in security and justice service delivery in fragile states, where the state may not be recognized as legitimate by a significant proportion of the population and where non-state justice mechanisms frequently prevail. The study also offers key recommendations for development agencies working in these conflict-affected areas.
Piron examines the history and the current status of justice sector reform in Africa. She also outlines five key challenges, derived from lessons learned, to ensure that donor support for justice reform is grounded in an appropriate understanding of African realities.
[edit] Where to Start: Key Knowledge Resources on the Rule of Law
1. The Governance and Social Development Resource Centre (GSDRC) is a knowledge-sharing portal funded by the UK Department for International Development that is considered to be the most comprehensive web-based resource on governance and development. GSDRC features a topic guide for justice that includes key resources in a variety of related subjects, including access to justice, transitional justice, and monitoring and evaluation.
2. The World Bank Development Gateway is a resource portal for development information and knowledge-sharing worldwide. The Gateway has a community on judicial and legal reform that provides a collaborative space for professionals working to reduce poverty to share knowledge, tools, research and contact. The community has links to information on legal and judicial activities and opportunities in the South, information on over 2000 projects on legal/judicial reform, reports and studies, and databases.
3. The World Bank’s web-page on Law and Development contains a wealth of information associated with the World Bank experience in judicial and legal sectors, including relevant news and events and data and reference resources. One of these resources, the Legal and Judicial Sector at a Glance database, provides access to legal and judicial information and comparative indicators on court systems across developing and developed countries.
The website identifies 13 topics in law and development, each linked to sites providing more specific knowledge and resources. One of these topics is Law and Justice Institutions. This site provides information on law and justice reform in developing and transition countries and on performance evaluations reform projects. It also provides examples of projects and activities and makes available useful resources including tools for practitioners, publications, and region-specific World Bank sites on justice reform.
[edit] Specific Canadian Resources on the Rule of Law
1. The International Centre for Criminal Law Reform and Criminal Justice Policy (ICCLR) contributes to international criminal justice policy development through analysis, research and consultation, and facilitates the sharing of Canadian and international expertise to promote good governance, rule of law, and human rights. The website provides information on the ICCLR's programmes, makes available their useful publications, papers and reports, and provides a list of events and of related websites.
2. Strategis is an internet-based knowledge-sharing tool produced by Industry Canada to provide business and consumer information to Canadians. Its Roadmap to International Development Business is aimed at companies interested in pursuing contract opportunities in a growing number of legal and judicial reform projects in developing and transition countries. Strategis provides a knowledge guide to Legal and Judicial Reform from a private-sector perspective, including key links to international financial institution resources on legal and judicial reform.
3. The National Judicial Institute (NJI) develops and delivers courses on components of judicial education. NJI’s International Cooperation Group manages and coordinates the institute’s international activities and builds relationships between judicial educators of Canada and those in other countries to promote education and reform. The website makes available NJI’s publications and other educations resources.
4. The Canadian Bar Association runs an International Development Program (IDP) to enhance the rule of law in transition countries. The CBA’s IDP site contains information on its programs and workshops, and makes available an online resource bank of members with a desire to get involved in CBA’s International Development Programs, links to law and development organizations, and information on current events.
5. The National Association of Women and the Law is a non-profit organization that works to improve the legal status of women. Its website contains extensive listings of its publications as well as those of its affiliates, and information on its lobbying activities.
[edit] Specific International Resources on the Rule of Law
1. The International Commission for Jurists (ICJ), composed of 60 jurists representing the world’s legal systems, ensures that advancements in international law adhere to human rights principles and that international standards are met at the national level. The ICJ website contains space dedicated to its Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights which examines the adherence of counter-terrorism law to human rights law. The site also has two databases: (1) the Legal Resource Centre, containing press releases, reports, and recent events by topic and country, (2) and a publications database containing ICJ publications.
2. Transparency International (TI) is a global network of over 90 national chapters worldwide, that raises awareness about corruption issues by conducting research and making available a digital library, various tools including corruption measurement tools, and web-based region-specific information guides. TI’s recently released 2007 Global Corruption Report concludes that a corrupt judiciary erodes the international community’s ability to prosecute transnational crime, inhibits access to justice and redress for human rights violations, and undermines economic growth.
3. The International Centre for Transitional Justice (ICTJ) assists societies emerging from repressive rule or armed conflict to pursue integrated, comprehensive and localized approaches to attaining recognition and accountability of mass atrocities and human rights abuses. The ICTJ provides information on transitional justice approaches and provides resources for each avenue of engagement. Information is also provided on current and past programs. The Research and Analysis Unit supports its country mission through in-depth projects.
4. The Open Society Institute (OSI), a private operating and grantmaking foundation that aims to promote open societies, created the Open Society Justice Initiative to promote rights-based law reform and the development of legal capacity worldwide. The Justice Initiative website makes available relevant publications as well as a searchable leagal resources database.
5. The Center on Democracy, Development and the Rule of Law (CDDRL) at Stanford University's Freeman Spogli Institute for International Studies (FSI) promotes innovative and practical research to assist developing countries and transitioning societies in the design and implementation of policies to foster democracy, balanced and sustainable development, and the rule of law. The CDDRL website has a calendar of relevant events, links to publications, and relevant news highlights.
6. The United States Institute of Peace’s (USIP) Rule of Law Program builds and refines principles on the rule of law articulated by various international bodies and provide practical guidance for their implementation. Research and consultation of the Rule of Law Program focuses on such issues as transitional justice and constitution making, justice and reconciliation, war crimes and humanitarian law, and the administration of the international rule of law. USIP’s website makes available publications on the rule of law, and rule of law events and multimedia resources.
7. The International Institute for Justice and Development (IIJD) is a Boston-based International non-profit, non partisan,consulting and educational organization. The IIJD seeks to alleviate poverty in Africa by dismantling systemic barriers and addressing those institutional weaknesses that create an environment of corruption, exclusion, repression and economic stagnation. The principle objective of the Justice System Reform Initiative of the International Institute for Justice and Development (IIJD) is to address the root causes of poverty in Africa by creating an institutional and legal framework guaranteeing the establishment of a justice system that is internationally recognized as stable, democratic, and economically viable. Such an institutional framework provides for the growth of democracy; eradication of corruption; establishment of transparency and accountability in the management of services and natural resources; empowerment of the poor; and, creates sustainable developmentIt promotes the development of an independent judiciary and access to free and fair justice systems nationally and internationally. IIJD has created a “Justice System Reform Toolkit” and Justice Survey as a method for assessing national justice systems, and has been working to evaluate sub-Saharan African judiciaries using this toolkit. The IIJD website also makes available a series of position articles and relevant publications.
8. The International Records Management Trust (IRMT) is a UK-based charitable organisation that supports governments across the world to strengthen capacity to manage public sector records, including to support protection of rights and entitlements, and the rule of law. The IMRT’s Download Centre makes available a number of free resources, including documents, videos, and assessment tools.
9. The International Foundation for Election Systems (IFES) provides professional advice and technical assistance in rule of law as part of a broader mission of promoting democracy. The website has a searchable database of IFES publications, provides information about IFES projects, and lists relevant rule of law links.
10. The Africa Governance Monitoring and Advocacy Project (AfriMAP) monitors and promotes compliance by African states with the requirements of good governance, democracy, human rights and the rule of law. AfriMAP has developed reporting frameworks in three thematic areas: the justice sector and the rule of law, political participation, and the delivery of public services. The AfriMAP website also has a searchable database of publications related to governance and accountability in Africa.
11. The Vera Institute of Justice works with leaders in government and civil society to improve the services people rely on for safety and justice. In April 2004 Vera joined with organizations in five other countries to form a unique alliance called Altus, which offers a global perspective on the administration of justice. Vera’s website features a searchable database of publications and a listing of events.
[edit] Indicators and Assessment Tools of the Rule of Law
1. The OECD’s Development Assistance Committee (DAC) -Handbook on Security System Reform: Supporting Security and Justice (2007). Justice sector reform falls under Section 7.6, and a list of questions to assess justice systems are on pages 185-187.
2. The UN Office of the High Commissioner of Human Rights – Rule of Law Tools for Post Conflict States (2006). Includes a series of guidelines on monitoring legal systems, mapping the justice sector, vetting, prosecution initiatives, and truth commissions.
3. UN Office on Drugs and Crime (UNODC) - Criminal Justice Assessment Toolkit (2006). An integrated approach to assessing the criminal justice system in any country, providing in-depth assessment tools for each part, function and institution of the system.
4. World Bank- Justice Sector Assessment Handbook (2007). A guide for carrying out justice sector assessments that provides lessons learned from past experience and an overview of good practices from the World Bank and other institutions.
5. International Records Management Trust - Assessment Tool for Legal and Judicial Records and Information Systems. Intended for use at different levels of the project cycle to support country assessments, diagnose strengths and weaknesses of organizational units and systems, guide project design and implementation, and enable records and information aspects of projects to be monitored and evaluated.
6. International Foundation for Election Systems (IFES) – Standardized Tool for Monitoring and Reporting on the Implementation of Key Judicial Reforms (2003). Centred on IFES’ analysis of the global data and lessons learned in the IFES/USAID guide to judicial independence.
7. Africa Governance, Monitoring and Advocacy Project (AfriMAP) - Questionnaire Templates (updated 2006). Templates address three themes: the justice sector and rule of law, political participation, and the delivery of public services.
[edit] References
- ↑ Paul Craig, 1997, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework,” In, Public Law, Autumn, 467-487.
- ↑ Rachel Kleinfeld Belton, 2005, “Competing Definitions of the Rule of Law: Implications for Practitioners,” Carnegie Paper No.55, Carnegie Endowment for International Peace: pp. 6-7.
- ↑ Amartya Sen, 2000, “What is the Role of Legal and Judicial Reform in the Development Process,” World Bank Legal Conference, Washington, June 5, pp.11^.
- ↑ Ibid. pp.7.
- ↑ OECD/DAC, 2007, Enhancing Security and Justice Service Delivery, DAC Network on Conflict, Peace and Development Co-operation, Paris: OECD, pp. 6.
- ↑ Leila Chirayath, Caroline Sage and Michael Woolcock, 2005, “Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems,” Background paper for the World Development Report 2006: Equity and Development, pp.1.
- ↑ Celestine Nyamu-Musembi, 2005, “For or Against Gender Equality? Evaluating the Post-Cold War ‘Rule of Law’ Reforms in Sub-Saharan Africa,” United Nations Research Institute for Social Development Occasional Paper, Geneva: UNRISD, pp.11-12.
- ↑ Sue Unsworth, 2006, “Getting Real about Governance,” IDS Policy Briefing, Issue 26, Brighton: IDS.
- ↑ Leila Chirayath, Caroline Sage and Michael Woolcock, 2005, “Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems,” Background paper for the World Development Report 2006: Equity and Development, pp.5.
