Reinventing the Rules
Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
The Impact of Rule of Law on Poverty and Development
I think I’m starting to embrace the label ‘rule of law nerd’ because I get way too excited every time a new rule of law report comes out. The latest publication is by GSDRC and is entitled “Evidence on Rule of Law Aid Initiatives”. Written in response to a question about whether rule of law boosts development and reduces poverty, this paper provides a concise overview of the latest evidence on the impact of rule of law initiatives on economic growth, policing, poverty, violence and corruption, judicial independence, informal justice, and legal empowerment. It also summarizes some of the most successful initiatives and briefly lays out what components of the program made it successful. View the excerpts below!
Credit: Subhrajit Basu
The literature widely assumes that the rule of law is a good thing and will have positive developmental effects; this assumption is not often critically examined. The rule of law is difficult to measure; and disentangling the data shows that correlations between the rule of law and development are not as strong as sometimes thought. There are strong cases for investing in security and justice in specific times and places, but overall there are few certainties about the causal links between rule of law and development.
Economic Growth & The Rule of Law
A comprehensive review of the literature on whether rule of law enhances economic growth finds that there are correlations between strong institutions and economic growth, but that there is a lack of consensus about which institutions are important and in which configuration. They note that a large part of the current debate is around how to implement legal reform, rather than discussing whether legal reform is in fact able to do any good. They suggest that current reforms should be treated as generating knowledge about the relationship between law and development rather than as implementing agreed best practice.
One seminal report finds that the direction of causation is unclear between a healthy economy and high-quality legislation. It is important not to make over-ambitious claims about the potential of rule of law to drive economic outcomes, as the relationship is not clear. Cox suggests that there may be moments in the growth cycle in which investment in the justice system will reinforce growth. For this reason, he suggests that interventions to support the legal system should be made when there is a clear local demand for them, and when they resonate with existing positive trends.
The Relationship between Property Rights and Poverty
There are several studies which show strong evidence that formalising property rights reduces poverty by: 1) relieving vulnerability through the prospect of dispossession; and 2) encouraging growth through increased access to credit, leveraging against property. There are some nuances in the evidence base, including that the formalisation of indigenous property rights does not necessarily lead to increased productivity; emergencies may force poor people into distress sales of property; and land titling may drive up land costs. It is highly important to note that, as the literature focuses heavily on property rights, that ‘women own less than 10 per cent of the world’s property’.
Credit: Rabin Chakrabarti
Community and cultural factors may play a stronger role in influencing behaviour than formal law, which may suggest that a ‘western’ legal system is not a prerequisite for development. For example, China does not have strong ratings on conventional rule of law indicators but has experienced an economic boom, suggesting that formal laws and legal institutions are not as important as the informal recognition of private property rights and performance of contracts.
Correlation between Economic Growth & Violence/CorruptionHaggard and Tiede question what is meant by rule of law and assumptions around how it contributes to economic growth. They empirically consider the relationship between four types of rule of law and economic growth, with data from 74 developing and transition economies: provision of security of person; security of property and enforcement of contract; checks on government; and checks on corruption and private capture. They find that the latter three are much less tightly correlated with economic growth than often thought, and that basic law and order, specifically violence and corruption, is a stronger determining factor in economic growth than the ‘rule of law’ indicators. In particular, the evidence on corruption suggests that checks on private power are as important as checks on government, in order to enable economic growth. Violence and the absence of law and order, moving towards state failure, is suggested in this paper as the most fundamental constraint on economic growth, rather than weak rule of law.
Cox suggests that there is strong evidence that crime and violence have a detrimental impact on poverty and that reducing crime and insecurity increases positive development outcomes. There is a knowledge gap on how effective criminal justice programmes are on crime rates, but the literature does suggest that reductions in crime will have positive effects on development. Crime and violence against women have additional repercussions such as reduced school attendance by children of victims, and reduced earnings of victims. Security and justice interventions do have the possibility of helping to alleviate poverty.
Judicial independence
There is a reasonably strong body of evidence that judicial independence positively impacts economic growth. They argue that the key components for judicial independence are:
- The procedures and powers of the judiciary should be specified in the constitution instead of granting only legal independence.
- The actual use of discretionary power of the other branches of government should be reduced vis-à-vis the judiciary, and judges paid adequately.
- High degrees of de facto judicial independence in presidential systems can help restrict the abuse of power by presidents
Judicial review (cases of conflict between government and citizens) has significant negative effects on economic growth in cases where there are no constitutional economic rights protections. Where these rights are strong enough, there can be a positive economic relationship.
Legal empowerment
Cox states that the evidence base is weak on determining whether rule of law affects poverty alleviation. In large part, it relies on small-scale donor sponsored civil society projects, which generally take the approach of improving poor people’s access to justice. This ‘legal empowerment’ bottom-up approach may work when combined with other development interventions, but the legal system’s discrimination against the poor will limit its ability to alleviate poverty. The best strategy is not investing in the justice system per se, but improving poor people’s ability to access and use it effectively.
Credit: Sourav Karmakar
The largest legal empowerment project was the UNDP’s Commission on the Legal Empowerment of the Poor (CLEP), which ran from 2005 to 2008 and aimed to extend rule of law through four pillars: access to justice and the rule of law; property rights, labour rights; and business rights. Two Asian Development Bank papers offer rigorous evidence that CLEP had positive impacts on agrarian reform; resident welfare; and prioritisation of key issues for local communities. Two criticisms of CLEP are that it has insufficient focus on political economy and labour, but it can be taken as strong evidence that legal empowerment has poverty reducing potential.
Gender, Rule of Law & Poverty
The enactment of laws against gender inequality and/or violence against women can have strong demonstrable effects on the reduction of domestic violence. Appointing female judges can also strengthen the rule of law through more equitable societal representation, more balanced judiciary and as leaders and role models who increase women’s access to justice, particularly in combating violence against women. Women’s empowerment is a known lever for poverty reduction.
Successful Rule of Law Interventions
A number of rule of law programme evaluations were reviewed for this report, however many of them do not identify wider impacts on the status of rule of law or development in the country. This report presents the small selection of evaluations which have identified positive outcomes, and include some assessment of how the programme has impacted on broader rule of law and governance.
USAID
USAID’s long-term assistance to the Russian Federation in developing the judicial system. They assert that the programme has delivered improved outputs such as legal clinics and better legal training, and improved outcomes such as increased commitment to the judicial system, personal attitudinal and behavioural change. The report attributes success to the project’s long-term engagement (15 years), holistic view of promoting change, and high levels of commitment from senior professionals.
Another USAID Rule of Law programme in Georgia has been particularly successful. Begun in 2001, the four-year programme aimed to increase citizen awareness of laws, strengthen legal services organisations, and increase government transparency and legislation. Success was due to the ground-level engagement with citizens, educating and informing them of their legal rights. This was achieved through film showings, public service announcements, and school curricula. Developing the skills of Georgian individuals proved highly successful, as many have moved into senior positions in government. Overall, when asked ‘Do you think that the law and legal system in Georgia function very effectively, somewhat effectively, somewhat ineffectively, or very ineffectively?’ survey participants answering somewhat or very effectively showed a rise from 28 per cent in 2003 to 66 per cent in 2004.
United Nations
A review of UN transitional administrations in Kosovo (1999-date), East Timor (1999-2002) and Cambodia (1992-3) shows that attempts to establish the rule of law through state-based enforcement mechanisms have had limited success; these do not adequately include informal and traditional justice systems, or account for indigenous power struggles, nor does it acknowledge that adherence to law relies on voluntary consent rather than state sanction. The administrations struggled to build local commitment to new justice systems, through scepticism about community benefit and disconnects between western and local conceptions of justice. Where the approach consciously made efforts to build ownership, it was more successful. New indigenous police forces appeared to be a visible symbol of change and worked well as bridges with communities. Adherence to rule of law appears to depend primarily on voluntary agreement to the value system, and therefore it will work best where it is perceived as compatible with existing social values.
UNDP’s work in Somalia has been particularly successful in the area of access to justice, and especially in extending judicial outreach to rural areas of Somaliland and Puntland, through mobile courts and clinics. Their success was facilitated by good cooperation with university faculties of law.
SIDA
Sida commissioned a comprehensive review of their programmes in human rights and democratic governance, aggregating results from 1998 to 2007. Access to Justice in Nicaragua project were both awarded high achievement of results. The Nicaragua project also had unintended impacts on women, in making the career as a judge an attractive option for women. The project built 120 new courthouses in remote areas, improving the physical access to justice, and by including good quality living quarters within the courthouse, has encouraged judges to take up remote rural posts.
AusAid
A 2012 review of the Australian government’s package of law and justice assistance identifies several examples of good practice and success. A core component of Australia’s assistance is organisational capacity-building, in which the following were identified as promising strategies.
- Taking an incremental rather than comprehensive approach to improving existing capacities and functions.
- Seeking a flexible, localised, ‘good enough’ solutions, rather than relying on institutional templates.
- Focusing on issues for which there were local constituencies for change, who could be mobilised and supported.
- Working directly at the point of interaction between law and justice institutions and citizens (so that the causal link between the intervention and benefits for citizens was short and direct and the impacts could be captured easily through monitoring and evaluation systems).
EU
The EU array rule of law programmes in the Western Balkans are assessed to be quite successful. In line with research, this independent evaluation identifies local ownership and buy-in as a challenge in this context, as there is not particularly strong political support for rule of law. The EU has, however been successful in capacity-building and institutional development of the judiciary and legal systems. Its successes are attributed to: its long-term commitment; local capacity development; large-scale, predictable and continuous funding; transparency of its political agenda; and its depth of policy development and breadth across sectors, actors and the region. The predictability of funding and permanent presence are particularly emphasised in this paper, and this has contributed significantly to the more complex projects. Short-termism and need for external collaboration have produced negative results. This report also suggests that the EU accession process – which includes the requirement to pass and maintain all EU standards of law – has been a key motivating factor in changing the legal system from a tool of state power to one of citizen support, which has shifted the nations into modern states based on separation of powers.
Policing
A rigorous empirical study of citizens’ (mostly aspiring middle-class) attitudes towards police corruption in urban Ghana shows that anti-corruption measures increased levels of public confidence in police trustworthiness and effectiveness and in procedural justice. The study shows that the positive outcomes are contingent on people’s level of satisfaction of anti-corruption efforts, meaning that they must see or experience actual change, rather than just rhetoric of anti-corruption measures.
The Sida review of programme evaluations includes a project aimed at improving the South African Police Force. It was found to have had considerable impact in raising awareness of human rights among the police force and built organisational capacity in improving response times, higher-quality recruits, and greater ethnic diversity representation in the force. This is partly attributed to the high level of local ownership of the project and feeding project results directly back into day-to-day work. Other contributing factors were recent South African government white papers and initiatives in line with the SIDA programme, which ensured the programme was in line with local priorities and trends. Local stakeholders were involved from the beginning in developing the programme, which gave strong local ownership and buy-in.
The United Nations Police (UNPOL) has most impact in building individual and institutional capacity, and less so in its other desirable areas of individual and institutional integrity. The latter is its worst-performing area.
To read the entire paper, you can find it here.
Reinventing the Rules 