Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Earlier this year, I interviewed Professor James M. Cooper on his work in South America and I decided to follow up on some of the interesting points he made. The summary below is from an article Professor Cooper wrote that talks about why donors should engage more with horizontal systems of justice (otherwise known as alternative dispute resolution mechanisms or informal/customary justice systems in other countries). I found his recommendations at the end especially interesting and I will follow up on it later. Enjoy!
Rule of Law Reform or Maintaining the Status Quo?
Since the many authoritarian regimes in Latin America came to an end, the U.S. and European governments, international aid agencies, multilateral financial institutions and development banks have assisted many states in the region in the transition towards democratic governance. Generally, lending and granting programs have focused on improving access to justice and promoting the rule of law in two distinct forms: The first is judicial reform, focusing on mechanisms by which the judiciary can exact justice in an independent, fair, and efficient manner, separate from political pressures…The second form of rule of law programs relate to legal reform – the drafting of new model criminal, civil and administrative codes for promulgation and implementation in a developing free market economy.
There may be a reason that, to date, the two kinds of rule of law projects have not yielded overwhelmingly positive and sustainable results. The programs that have been promoted, funded, and disseminated by the World Bank, development agencies and Western governments have been focused largely around vertical justice systems – those involving a court procedure that is largely hierarchical in nature. These programs are what Carothers, Vice-President for Global Policy of the Carnegie Endowment for International Peace and a former USAID worker, calls the “top down” approach of funding and structural rule of law projects – the focus is concentrated upon senior judges and politicians, and results are expected to flow down into other state and social institutions. Interestingly, in many cases, it is the senior members of the judiciary and government who are often the obstacles in the road to progress in the legal sector and public trust in the judicial system.
[By focusing] on building state-sanctioned institutions… existing hierarchical – or vertical – systems of justice were re-entrenched. Police units have trained in human rights sensitivity, national court systems have improved their informational technology architecture, and public prosecutor were taught new investigative skills. The status quo was, in essence, maintained and even strengthened.
The Benefits of Supporting Horizontal Systems of Justice
Horizontal processes are therapeutic in nature. In the criminal law context, these programs are often referred to as “Restorative Justice”, for they aim to restore not just the community to its state prior to the crime, but also defendant to the community and within himself or herself. By diverting the process out of the regular criminal procedure and into an alternative regime, problem identification exercises are possible, not so that blame is affixed, but so that accountability for the problem (and not the effect) is recognized and behavior modification is supported. In this, such programs are preventive in nature, for they focus on the problems cause and take fundamental steps to change negative behavior patterns.
The horizontal processes also involve various constituencies, and not just the two parties involved in a traditional vertical model (the state as represented by the judge and prosecutor and the defendant). Horizontal justice systems recognize and empower the interconnectedness of events and constituencies. Horizontal systems, in their therapeutic approach, are also very successful in reducing crime. This may be due to the fact that decisions are made through consensus and consent. Most importantly, the process is forward looking and not just backward looking.
[To understand how people engage with horizontal or informal justice systems, check out this interview with an anthropologist who studied this in Liberia.]
Examples of Horizontal Justice Systems
Navajo Supreme Court
One of the best and most successful examples of horizontal system is the Navajo Nation peacemaking program under the auspices of the Navajo Supreme Court. While there is a very defined, and all too used, criminal proceeding for most crimes, there are some crimes that are dealt with outside the Western accusatorial-blame culture mode. In peacemaking, a thoughtful and attentive examination of each aspect of a given problem is provided to reach conclusions about how to best resolve the problem.
The traditional concept of Navajo justice is based upon discussion, consensus, relative need, and healing. The mechanism is horizontal to its very core, with constituents participating in a circle and each having a right to speak their respective truths. Clearly there is no hierarchy for no person is above another person. There is no judgment but a framework of supportive accountability. It can transform the participants involved and not just the defendant in a criminal case.
In the Western, more vertical model of justice there is an authority figure – the state represented by the judge or panel of judges, a decision-maker, an umpire, an arbitrator. A horizontal justice system is often portrayed as a circle, for there is no judge to whom to appeal, nor is there a defendant below, the subject of judgment. There is no beginning nor is there an end. Each point (or person) on the line of a circle looks to the same center as the focus. The circle is symbolic in this culture because of its nature; it is perfect, unbroken, and a celebration of unity, harmony and interconnectedness.
Youth (Peer) Courts
Youth Court provides nonviolent juvenile offenders an opportunity to avoid incarceration by committing to a rehabilitation program. In exchange for a guilty plea, the defendants avoid a permanent record by having their sentences determined by the teen juries of Youth Court.
The jury passes a minimum sentence of two jury appearances and a letter of apology to their victims and any additional punishment or recourse necessary. The defendants have two months to complete their sentences, with the assistance and supervision of law students or other community members who volunteer their time as compliance monitors. Hence, Youth Court champions the value of volunteerism.
Throughout the Americas, there are examples of institutions outside the traditional Western, vertical and blame-oriented court systems in use. The challenge is to document these problem-solving courts, community courts, teen/peer courts, drug courts, and healing circles – and define a number of best practices.
New skills like media advocacy, institutional advocacy, and cross-cultural negotiation are becoming increasingly important. According to former U.N. Secretary-General Boutros Boutros Ghali, “[f]or the past two centuries, it was law that provided the source of authority for democracy. Today, law seems to be replaced by opinion as the source of authority, and the media serve as the arbiter of public opinion.” The skill sets to create these mechanisms in a consistent and sustainable way must be taught. If we are to have truly transparent, horizontal, and effective mechanisms to solve societal conflict we must develop, engineer and replicate these model programs where appropriate.
To read Professor Cooper’s entire paper, click here.