Key Debates & implementation Challenges
Last Updated: February 3, 2009
This section presents a summary of some of the key debates and implementation challenges discussed by academics and practitioners in relation to access to justice. The main debates relate to two major sets of issues: top-down versus bottom-up approach to justice reform; "procedural" versus "substantive" access to justice. The main implementation challenges refer to the material constraints in which those efforts generally have to be undertaken and the need for prioritization; the need for holistic or system-wide approaches to access to justice; the importance of a "do no harm" approach; the difficulty to reach the goal of capacity-building and sustainability; a relatively persistent knowledge deficit. The points covered are not meant to be exhaustive, but rather illustrative of main areas of concern.
Top-down vs. bottom-up approach to justice reform
A central debate is between proponents of a top-down approach and proponents of a bottom-up approach. The focus of the first approach is on state institutions as the supply-side of the justice system: "A strong, credible state apparatus providing justice and the rule of law in a way that is perceived as fair, fast and effective is something that gives people a real, tangible reason to buy into that state."1 The advocates of bottom-up approaches, on the other hand, focus on civil society and local communities (the demand-side of justice system) as being more likely to yield direct, concrete, and immediate impact at the micro level.2 The activities developed to increase access to justice fall into that category. The question posed is: "Is it through the state and legal reforms (from above) that the judicial sector can become more transparent and efficient? Or do only bottom-up demands ultimately bring a more efficient and sustainable 'response' from the state?"3A shortcoming of the legal empowerment approach (that is, bottom-up activities that focus on the poor and civil society organizations and that bypass state institutions) is that "it lacks the comprehensiveness of rule of law, as it does not include work to be carried out on state actors, which do in the end influence the laws and the higher echelons of the justice sector that form the final justice guarantee if local dispute resolution mechanisms fail."4 By contrast, "bottom-up approaches offer ways to direct legal reform programs outside of the legal box and combine them with political measures such as advocacy, organization and participation."5 However, bottom-up approaches cannot serve as complete substitutes for the current rule of law paradigm. Instead, "they offer much to existing practices and the existing rule of law paradigm, but should be seen as additions and be incorporated into existing practices instead of fully replacing them."6
Though bottom-up approaches also "do pay attention to the political nature of political reform and existing power structures, and to some extent aim to change such power structures," questions remain as to "how this is exactly done in practice and with what effect...If successful in changing existing power structures and empowering the weak, larger questions about what gives donors the right to change existing power structures, how to select those that may benefit from it, what limits there are to changing such power structures and what state sovereignty then means should be answered, which are not addressed."7
On the other hand, the mainstream approach to justice reform in post-conflict contexts is centered on the state as the primary provider of justice. Whatever the normative merits of this claim, the reality in many post-conflict societies is that the states capacity to deliver efficient and fair justice to ordinary people is extremely limited.8 As Bruce Baker and Eric Scheye observe, "if we are interested in improving the experience of justice and security of the end user [the ordinary person], it seems misguided to focus...on reforming the state security and justice agencies. It would make more sense to recognize the nature and composition of the post-conflict and fragile state without imposing upon it an idealised Western conception of what the state should be; acknowledge its inherent weaknesses and limitations; accept the ways in which state and non-state actors inter-penetrate, mingle, and merge, and then, attempt to strengthen the performance and capacities of those who actually deliver most of the security and justice in addition to building state capacities."9
In practice, both top-down (state-centric, supply-side) and bottom-up (pro-poor, civil society-oriented, demand-side approaches) are equally necessary, and are also closely linked together and complementary. In general, "a balance should be found between working on the larger picture (democratic, 'good' governance) and its components (access to justice)...between working with the state to reform society and working with society to reform the state."10 Choices to be made will depend on the situation of the particular country and its institutions in order to determine how best the two approaches may be utilized and combined in a particular situation.11
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"Procedural" vs. "substantive" access to justice
Key questions in the access to justice debate surround whether "access" refers to the ability to access justice institutions so as to make claims and secure remedies or whether is it about ensuring that justice processes result in certain kinds of judicial (and perhaps social) outcomes. "In recent years, critics have argued that access-to-justice reform has largely conflated access to justice with access to the courts. Some seek to turn the debate from procedural access to substantive justice, shifting emphasis from guaranteeing the availability of lawyers or court procedures to producing social outcomes that are more fair and equitable."12The shortcoming of the procedural approach is that having good laws on paper does not necessarily mean good practices in the justice sector. It is widely recognized that the key problem in justice reform is enforcement. Therefore, formal rules and laws are not enough to make sure that people actually enjoy fair and efficient access to justice institutions. "Access to justice is not only a question of formal (procedural) rules granting access. It involves equality before the law, equality in the law, non-discrimination. Access has to be guaranteed on a non-discriminatory basis that, inter alia, implies the existence of a legal aid scheme ensuring real access for all. Justice delivery systems should ensure not only equality before the law (procedural rules allowing for real and genuine equal access), but also equality in the law (substantive rules allowing for and ensuring non-discriminatory outcomes)."13 In addition, "structures and mechanisms must be easily accessible and understood, trusted and efficient, especially for members of the public who are disenfranchised, discriminated against, underprivileged or neglected."14
A United Nations Development Program (UNDP) report articulates a substantive conception of access to justice: "Access to justice is, therefore, much more than improving an individuals access to courts, or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable."15 Access to justice is also linked to social justice and to the fair and equitable distribution of resources.16 Moreover, access to justice activities touch upon the key issues of good governance, accountability, public information and/or access to government budget details.
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Implementation challenges
Barriers, limited resources, and the need for prioritization
In post-conflict contexts, there are numerous barriers to accessible justice. Of particular importance are structural barriers, for they elude easy prescriptions. For example, structural barriers in the form of socioeconomic inequalities or discriminatory cultural attitudes are extremely difficult to overcome and require initiatives in areas (political, economic, and cultural) that go beyond the scope of access to justice programs. The success of access to justice reforms thus in large part depends on reforms in other, non-justice sectors of peacebuilding.Second, post-conflict justice systems face a wide array of problems, meaning that reforms in one area need to be coordinated with reforms in another. But peacebuilding, as any other sphere of human activity, operates under conditions of resource scarcity (particularly, finite donor funds), which inevitably means not every facet of the justice system can be reformed or reconstructed. The tensions between a system-wide approach to reform and limited capacities is not easily resolved. Advocates of access to justice approach would argue that, in terms of prioritization, an emphasis on justice holds the potential of quickly giving a sense of change in the way justice can and will be delivered. Indeed, a key post-conflict justice challenge, then, is to identify some "quick wins" initiatives that have multiplier and demonstration effects.17
The need for holistic or system-wide approaches to access to justice
Access to justice initiatives need to be based on a holistic or system-wide understanding of the justice system--that is, an understanding of how a particular initiative is likely to affect and be affected by others components of the justice system. For example, it makes little sense to increase access to the courts if judges are corrupt; doing so would not empower those making claims but enrich those motivated to take bribes. Or, if legal awareness campaigns are undertaken without complementary efforts to increase legal aid, then the outcome is that more informed people will become more frustrated as they do not have the means to make claims and secure remedies. Or, if fairer judicial decisions are not met with proper enforcement of those decisions, then the unintended consequences may include new grievances.In sum, access to justice programs in post-conflict contexts must be undertaken across all relevant dimensions: legal protection, legal awareness, legal aid and counsel, adjudication, enforcement and civil society oversight. Yet, as this approach is not yet considered as central by all donors, some may be tempted to support only one or two activities instead of addressing the whole spectrum of actions and initiatives that need to be undertaken. There is, however, a general movement toward more holistic and coordinated approaches to justice reform and reconstruction. In Rwanda, for example, the government formulated a central strategic plan on judicial reform and the main donors and UN agencies then signed on for their respective areas of activity, thus avoiding duplication and ensuring that there were as little gaps as possible.18
Do No Harm
The problems of access to justice arise out of bad political governance, iniquitous socioeconomic conditions, widespread discrimination, among other causes. In other words, these barriers are very much rooted in the socio-economic and political structures of a post-conflict context. By raising people's awareness of their legal rights, providing access to mechanisms for claiming those rights, and securing adequate remedies, access to justice initiatives, whether willingly or not, seek to affect and change those structures. As a result, peacebuilders are likely to encounter an absence of political will to initiate or support access to justice reform, and even political resistance to reform efforts. According to a brief by OECDs Development Assistance Committee, access to justice "affects the distribution of power among key state and law enforcement institutions, both formal and informal, as well as among individuals and groups. Such shifts are likely to be opposed by those who stand to lose from such reforms, often resulting in power struggles for which the structures and mechanisms to handle them peacefully may not exist."19 Access to justice programs thus have to make sure that they follow the "do no harm" principle20--in other words, they have to make sure that the grievances and justice needs that are articulated and advances through their initiatives can then be addressed through legitimate, effective, and peaceful means.Capacity-building and sustainability
A key challenge facing access to justice programs is to foster local capacities and to make sure that externally-supported programs eventually become locally self-sustainable. Some see capacity-building as particularly problematic and challenging in post-conflict contexts, due to the purported weakness (if not the absence) of civil society, especially in the immediate post-conflict period. According to Stephen Golub, a prominent scholar and advocate of legal empowerment, "particularly in failed or post-conflict states, there is little civil society to speak of."21 The implication of this analysis is that "it can be wasteful or even counterproductive to throw money at any newly launched domestic NGO that seeks donor agency funds. It instead makes sense to focus on civil society and its...capacities by channeling aid through international NGOs."22 The merits of this argument are debated, in particular as outsiders may not necessarily look to the right actors at the right place.23 Moreover, there is a broad consensus regarding the end goal: locally self-sustainable/self-sufficient access to justice initiatives, something that cannot be achieved by relying only on international actors. Another unfortunate yet widespread trend is that "access to justice" programs tend to be short-term and come to a halt once external funding ends. Another reason for a long-term perspective is that the qualitative changes associated with access to justice are likely to occur over years and even decades. Building state judicial capacity, ensuring transparent modes of management, accountability mechanisms, as well as transparent and open hiring, firing and monitoring of judicial staff, are all time-consuming yet crucial steps.24
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Knowledge deficit
Most of the evidence to support the success of access to justice initiatives is anecdotal and fragmentary. As a result, there is a lack of the empirical data to evaluate the impact of access to justice initiatives. This is especially the case in post-conflict societies, given the newness of programs specifically labeled that way in peacebuilding contexts. Compounding this is a methodological limitation: most studies of access to justice are commissioned by donor organizations that fund access to justice programs, limiting the objectivity of these studies. With more time and more research, successful strategies may be identified, effectiveness measured, and lessons learnt accumulated and shared by practitioners. One attempt at elaborating a system to measure impact of such justice programs is from the lawyer and practitioner Bill O'Neill.251. Antonia Potter, "The Rule of law as a Measure of Peace? Responsive policy for reconstructing Justice and Rule of Law in post conflict and transitional environments," Paper for UNU-WIDER Conference on "Making Peace Work" (Helsinki: May 4-5, 2004), 10.
2. Stephen Golub, "Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative," Carnegie Endowment for International Peace, Oct. 2003.
3. Sarah Byrne, Gabriela Mirescu, and Sean Muller, Decentralization and Access to Justice (prepared for the Swiss Agency for Development and Cooperation - SDC, January 2007), 14.
4. Benjamin van Rooij, "Bringing Justice to the Poor: Bottom-up Legal Development Cooperation," Paper presented at the annual meeting of the The Law and Society Association, TBA, Berlin, Germany, Jul 24, 2007, 1.
5. Ibid., 1.
6. Ibid., 1.
7. Ibid.
8. See Bruce Baker and Eric Scheye, "Multi-layered justice and security delivery in post-conflict and fragile states," Conflict, Security & Development 7, no. 4 (December 2007): 503-528.
9. Ibid., 514.
10. Byrne,Mirescu and Muller, Decentralization and Access to Justice, 14.
11. David Tolbert and Andrew Solomon, "United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies," Harvard Human Rights Journal 19 (Spring 2006), 53-54.
12. Shirin Sinnar, "Access to Justice - Topic Brief" (World Bank, Law & Justice Institutions).
13. OECD Development Assistance Committee (DAC) Issue Brief, Equal Access to Justice and the Rule of Law (2005), 3-4.
14. Ibid., 3-4.
15. United Nations Development Programme (UNDP), Access to Justice: Practice Note (New York: United Nations Development Programme, 2004), 6.
16. OEDC/DAC, Equal Access to Justice and the Rule of Law, 3-4.
17. Comment by Bill O'Neill, 11 July 2008.
18. Ibid.
19. OECD/DAC, Equal Access to Justice and the Rule of Law, 6.
20. Mary B. Anderson, Do No Harm: How Aid Can Support Peace - Or War (Boulder, CO: Lynne Rienner, 1999).
21. Stephen Golub, "The Rule of Law and the UN Peacebuilding Commission: a Social Development Approach," Cambridge Review of International Affairs 20, no. 1 (March 2007), 62.
22. Ibid.
23. For a thorough discussion on civil society in post-conflict contexts, see Beatrice Pouligny, "Civil Society and Post-Conflict Peacebuidling: Ambiguities of International Programmes Aimed at Building New Societies," Security Dialogue 36, no. 4 (2005): 495-510.
24. See Alexander Mayer-Rieckh and Pablo De Greiff, Justice as Prevention: Vetting Public Employees in Transitional Societies, Social Science Research Council, 2007.
25. William G. O'Neill, "Gaining Compliance Without Force: Human Rights Field Operations," in Civilians in War, edited by Simon Chesterman. Boulder, Col.: Lynne Reiner, 2001.
