A Roundtable on Reforming Rule of Law Assistance in Asia

IMGXYZ3987IMGZYXInternational efforts to promote the role of law in developing countries have reached a difficult stage. Despite decades of concerted efforts on the issue of legal empowerment and judicial reform, evidence of success remains sparse. Scholars and practitioners disagree about the purpose of rule of law assistance and evaluation methods, and disappointment has led some to question the value of existing efforts. But the uncertainties surrounding the field also represent a moment of opportunity for reflection and creative reinvention.

In his book, Reforming Justice: A Journey to Fairness in Asia, Livingston Armytage of the Centre for Judicial Studies examines  existing critiques of rule of law assistance and suggests practical solutions to the current impasse. He spoke at a roundtable discussion held by the Carnegie Endowment. Carnegie’s Thomas Carothers moderated.

An Unmet Challenge

• Crucial Problem: Justice is fundamental to human wellbeing and the functioning of society, Armytage explained. Yet in developing countries formal institutions meant to guarantee and enforce legal frameworks remain plagued by unresponsiveness, inefficiency, and corruption.
   
•  “Thin” Conceptions of Justice: Recognizing this challenge, international donors have dramatically increased rule of law assistance programs over the past two decades. But despite significant changes in the field of development assistance, rule of law promotion has been characterized by a formalistic and “thin” conception of justice, he added.
   
• Diverging Approaches: Armytage explained that international actors such as the UN, the World Bank, and bilateral donors have embraced four radically distinct approaches to rule of law assistance:
  
  
  1. Economic: rule of law as a tool for economic growth;
  
  
  2. Political: rule of law as part of good governance and democracy;
  
  
  3. Social: rule of law as safety and security in pre- or post-conflict states;
  
  
  4. Humanistic: rule of law as the protection of individual rights.


• Donor Constraints: Current rule of law assistance programs rarely last longer than five years, although substantive change requires much longer periods of engagement, added other participants. Aid programs often do not reach the evaluation stage, as programs are changed to fit evolving donor priorities.
   
• Donor Priorities: Furthermore, added other participants, rule of law assistance does not necessarily address the fundamental injustices facing citizens in developing countries, but instead targets the priorities and needs of the international community.
   
• Challenging Local Power Structures: Assistance programs in difficult political contexts are tailored to remain under the radar rather than to challenge problematic power relations, pointed out the participants. Programs tend to focus on access to dispute resolution mechanisms, when in reality citizens are suffering from wide-scale abuses by corrupt and immune power-holders.

Confusion of Purpose

• Lack of Consensus: Due to differing understandings of the meaning and role of the rule of law in developing countries, it is unclear what rule of law assistance is trying to achieve and whether it is a goal in itself or a tool for growth, Armytage said.
   
• Problems of Knowledge and Methods: Empirical evidence linking rule of law to economic development is unclear, he added. Furthermore, practitioners and scholars disagree on the best ways of improving access to and enforcement of the rule of law.
   
• Measurement Uncertainties: It is acutely difficult to measure success, particularly if the primary purpose of rule of law assistance remains contested and undefined, Armytage pointed out. Instead, scholars and practitioners are engaged in a “paradigm war” between positivistic and constructivist methods and outlooks. In-depth evaluations of programs are rare.
   
• Operationalizing an Idea: Other participants pointed out that problem is not only conceptualizing the meaning of justice and the rule of law, but also operationalizing this meaning as programs struggle to adapt to local political realities, funding constraints, and the need for measurable results.

Re-defining Rule of Law Assistance: Justice as Fairness

In his book, Armytage proposes two central analytical questions for overcoming the confusion currently hampering rule of law assistance efforts, and suggested answers to the questions.

1. What is the purpose of rule of law assistance?
   
   Judicial reform should aim at promoting justice as an end goal in itself rather than as a precondition for growth, as past donor efforts have primarily done. Armytage defined justice as fundamental notions of fairness and equity in society. A focus on fairness does not imply a human rights-based approach, but instead the reactivation and use of existing laws that have been dispensed through the political process. New evidence from Asia suggests that such a shift in justice reform efforts can successfully promote substantive rights, for example through public interest litigation, he added. Participants questioned, though, whether there is sufficient consensus on the meaning of fairness for it to serve as a basis for rule of law programing.
    
2. How do we measure the success of rule of law assistance?
   
   The evaluation of rule of assistance should be a normative and standards-based exercise based on bringing existing legal frameworks at the domestic, international, and customary level back to life, he argued.