ISSUE 1 JANUARY 2014 Four Cardinal Questions (and answers of a sort) Toward Just Development in FCS By Deborah Isser, Louis-Alexandre Berg and Doug Porter1 Justice and the rule of law are regularly cited as fun- judicial independence, to management systems that damental to addressing so many development chal- improve the efficiency and access to courts. But it’s lenges: poor investment climate, conflict and insecuri- clear there’s no magic wand to bring those fixes ty, gender inequality, poverty and low human develop- about, especially amidst the broader challenges of ment outcomes.2 While causal connections between conflict and fragility. While there are successes, there various aspects of the rule of law and these outcomes are also numerous examples of problematic results: are not always straightforward,3 few would contest institutions that are only foreign mimics ill-suited to the crucial importance of effective and legitimate insti- context, that engender opposition and resistance, and tutions to manage disputes, grievances and claims of that lead to unsustainable and damaging invest- injustice in the effort to achieve the Bank’s core goals ments.5 Moreover, efforts that focus on a narrow set of eliminating extreme poverty and boosting shared of justice sector institutions may result in little impact prosperity. on peoples’ justice concerns. The role of justice institutions in underpinning devel- What, then, can we do? We suggest that there is opment has especially come to the fore in fragile and quite a lot, but it requires starting with different ques- conflict-affected situations.4 After at least two dec- tions. Drawing from the Bank’s justice strategy New ades of intensive efforts to promote the rule of law and Directions in Justice Reform6 and our experience in strengthen justice systems in these contexts, we are the Justice for the Poor program, especially in fragile learning what works, and what does not, but projects and conflict-affected situations, we have distilled an often struggle to achieve results. Technical best prac- answer, or rather a process. Four simple questions tices are legion – ranging from how to write market- to guide us toward the not so simple path of promoting friendly laws, to administrative procedures to enhance just development: 1 This essay draws on Porter, D., D. Isser and L.A. Berg, “The Justice-Security-Development Nexus: Theory and Practice in Fragile and Con- flict-Affected States,” Hague Journal on the Rule of Law, Vol. 5, no. 2 (2013): 310-328. 2 Most recently, justice is a key theme of World Development Reports 2011 (Security, Conflict and Development) and 2012 (Gender Equality), and has been highlighted by the High Level Panel on Post 2015 Development Agenda, the g7+ New Deal for engagement in fragile states, and the 2012 UN General Assembly Declaration on rule of law. 3 For a review of the evidence, see Berg, L.A. and D. Desai, “Overview of the Rule of Law and Sustainable Development: Background Paper for the Global Dialogue on Rule of Law and the post-2015 Development Agenda.” (NY: UNDP, 2013); and Haggard, S. and L. Tiede. "The rule of law and economic growth: where are we?" World Development Vol. 39, no.5 (2011): 673-685. 4 The World Development Report 2011 (Security, Conflict and Development) highlighted security, justice and jobs as the key ingredients for transition from fragility and conflict. 5 See Desai, D., D. Isser and M. Woolcock, “Rethinking Justice Reform in Fragile and Conflict-Affected States: Lessons for Enhancing the Ca- pacity of Development Agencies,” Hague Journal on the Rule of Law, Vol. 4, no. 1 (2012); Andrews, M, The Limits of Institutional Reform in Development: Changing Rules for Realistic Solutions. (Cambridge: Cambridge University Press, 2013). 6 New Directions in Justice Reform, The World Bank (2012) 1    JUST DEVELOPMENT JANUARY 2014 and the accumulation of rents from the commodifi- cation, trade, and transfer of assets. In fragile and Question 1: What is the justice problem? conflicted settings, these typically involve natural The question sounds straightforward enough, but it is assets - land, water, minerals, forests etc. In Sol- surprisingly tricky. Too often the problem is diag- omon Islands this was most pronounced where nosed as broken or deficient justice sector institutions customary rights related to land development and – laws that do not meet international standards; judg- natural forest logging were being contested. es that lack independence; courts with insufficient (3) Allocation of public wealth. The most corrosive case management systems. The solution then is to fix grievances and disputes often arise around how them by filling in those gaps. Surely these deficien- public wealth is allocated, distributed and ac- cies are problematic, but they may be largely irrele- cessed in the form of public services, entitlements vant to the way people experience justice. and other benefits. In Solomon Islands this mani- An alternative approach is to move beyond an under- fested in disputes around access to benefits from standing of justice as a particular set of institutions to the flow of aid or from the constituency funds dis- understanding justice as an outcome in all develop- tributed by national politicians. ment sectors. New Directions argues that “reform Each of these categories of injustice may play out strategies should take on concrete functional prob- along gender, intergenerational or ethnic lines that lems, rather than pursue some ideal justice system exacerbate perceptions of systematic injustice. In- model.” To identify those problems one needs to look deed these were prominent features of disputation in beyond the institutions that may claim to manage all categories in Solomon Islands. them to the grievances and disputes – i.e. the justice problems – that citizens experience. Taking this fur- The result of asking this question is to break the silos ther we might say that justice interventions need to in development practice that separate the attentions look beyond any particular institution, system or mod- of those concerned with ‘justice’ from those con- el, to focus on justice as a development outcome. cerned with the broader range of development chal- lenges – how markets are regulated, budgets are So how do we figure out what the justice problems made to allocate public wealth and services are deliv- are? Based on our experience so far, we have found it ered. useful to look at three categories of justice problems. Recent J4P research in Solomon Islands illustrates Question 2: How is the justice problem being the kinds of disputes and grievances that typify each managed? category:7 Once we have identified the salient justice problems, (1) Social order. This category encompasses griev- the next step is to understand how those problems ances, disputes and crimes that affect security, are currently being managed. This immediately takes safety and public order, which often arise from in- us beyond justice as a problem of the justice sector to terpersonal disputes and family matters. In Solo- justice as a core function of a wide range of public mon Islands these arise around the illegal produc- authorities. tion and use of narcotics, sometimes leading to There are two key points here. First, we abandon the violence, and the disintegration of social norms perspective of how we think things should work and around marriage, propriety and intergenerational examine empirically how justice problems are actually obligations and conduct. managed. Most likely we will discover a wide range of (2) Regulation of economic assets. This includes dis- institutions, rules and actors – formal and informal – putes about rights to possess and use property that play the role of mediating the rights and entitle- 7 Allen, M., S. Dinnen, D. Evans and R. Monson, “Justice Delivered Locally: Challenges and Innovations in the Solomon Islands”, World Bank Justice for the Poor Research Report (2013). 2    JUST DEVELOPMENT JANUARY 2014 ments at stake. Research on justice in Liberia, for ture gaps relative to international standards for a par- example, found that outside of the capital, Monrovia, ticular set of institutions, and to prescribe a remedy of formal court processes are virtually non-existent. In- fixes in the form of law and procedural reforms, train- stead, an array of actors, from elected politicians, ing, equipping and building. The logic of this approach chiefs to churches, women, youth and market associ- is that donors can bring about justice outcomes by ations, and other communal structures are primarily building a set of rules and organizations that could – if involved in contesting and mediating justice.8 the various constraints are overcome – deliver a set of goods more effectively. Second, if we limit ourselves to examining the ways conflicts and disputes are resolved after they escalate, Yet the history of institutional formation and develop- we may have little space to influence justice out- ment suggests otherwise. Institutions – perhaps most comes. Justice problems often begin at the front end – notably justice institutions – emerge from political and where laws and regulations are enacted by a broad social processes that coalesce into specific forms of range of public authorities, including both formal state contestation, political bargains, normative tensions, agencies and non-state actors. In Liberia, J4P is col- and at times agreements to alter a set of organiza- laborating with the Ministry of Internal Affairs and tions.9 Poor institutional performance is thus rarely Land Commission to examine the sources of griev- only a question of capacity; it usually serves the inter- ances around land use and concessions, and engag- ests of various actors who interact through complex ing relevant public authorities across the natural re- political and social processes. Successful reforms to source value chain, from how deals are negotiated justice institutions thus require a whole range of un- and benefit sharing agreements are made, to the ar- derlying processes of change, underpinned by such rangements made to transfer resources, settle ongo- elements as political openings, supportive coalitions, ing claims and oversight each step in the process. the ability to advance changes in the face of organiza- The aim is to institute more effective means of mediat- tional resistance and vested interests, and the norma- ing contests that arise at crucial points in that chain. In tive foundation for the changes to embed in the prac- this case courts may play a limited role, while local tice and behaviors of officials and users. authorities, private investors and a range of local and How do we engage with these dynamics in practice? national government agencies also contribute to jus- First, we need to understand enough about the con- tice outcomes. text that shapes the performance of institutions, in or- Question 3: Under what conditions will more ef- der to identify opportunities for change. Three core fective and legitimate institutions to manage the lines of inquiry can help us unpack these complex dy- justice problem emerge? namics: Now that we have the lay of the land – the justice 1. Political settlements. How do the nature and dy- problem and the key actors and institutions – we turn namics of political coalitions impact on the capa- to the question of how can justice processes and out- bility of institutions to deliver credible responses to comes be improved? But first we need to understand particular justice problems? What kind of pres- what accounts for the performance of current arrange- sures, threats and incentives can cause elites to ments. This question takes us beyond deficit and dys- vest institutions with the capabilities and legitima- function to a deeper understanding of the political cy to more equitably manage justice contests?10 economy of justice. Is it possible to identify “critical junctures” in which key constituencies and/or external actors have The most common approach by development actors is mobilized support to elite reformers as a basis for to diagnose deficits and dysfunctions in the form of finding future openings? flawed rules, lack of human capacity and infrastruc- 8 Isser, D., S. Lubkemann and S. N’Tow, “Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options,” USIP Peaceworks 63 (2009). 9 For a review of relevant literature, see Hickey, S. “Thinking about the politics of inclusive development: towards a relational approach”, ESID Working Paper No. 1. (2013). Available: at http://www.effective-states.org/_assets/documents/esid_wp_01_hickey.pdf. 3    JUST DEVELOPMENT JANUARY 2014 2. Organizational change. How do organizational contest around rights and entitlements at the wrong forms shape opportunities and constraints to insti- time or place, or via institutions that are not ‘fit for pur- tutional change? Even the most committed reform- pose’. They reproduce patterns of privilege and power ers have foundered in the face of organizational about which people have serious grievances. resistance and vested interests. Institutions that Third – and here is what we are aiming for – by using deliver justice confront particular challenges, rang- this chain of questions to develop a deeper under- ing from complex relationships among executive, standing of the context, and of how change occurs, legislative and adjudicative authority, to the multi- we can identify tractable pathways to improved justice plicity of organizational entities and actors. Is it outcomes in particular contexts. possible to identify the seeds of institutional change in a particular set of organizations? We have begun to explore this way of approaching justice challenges. In Solomon Islands, for example, 3. Normative foundations. How do prevailing social our analysis points to the futility of reviving local perceptions and values shape the written law and courts, for which no alignment of political and constitu- its implementation? Institutional change often ent interests can be identified. Institutionalizing a hy- arises as a result of normative tensions that serve brid model involving ‘community officers’ embedded in as opportunities to reshape authoritative rules. local and national governance arrangements to man- Where do relevant cleavages lie as understood by age local social order contests and liaise with govern- local actors? What channels and institutional ment authorities appears more promising. In neighbor- mechanisms can best promote the emergence of ing Vanuatu, where grievance over the development an effective and legitimate normative framework? of customary land is prominent, we aim to piggy-back Question 4: What is the appropriate role for exter- on recent political alignments that have carried legisla- nal assistance? tive reforms through Parliament. We will provide sup- port to a few key institutions in and around govern- This fourth question takes us beyond an approach ment which can be incentivized by popular demand that separates design from implementation to one and a thrust by political champions to establish mech- based on continued engagement, learning and adjust- anisms including advisory services to customary land- ment. It reminds us to be diligent in our analysis, owners to improve the equity of land transactions. In modest in our ambitions and flexible and responsive in Afghanistan, where the role of traditional justice actors our implementation, while taking a realistic view of is critical to dispute resolution but highly politicized, what can be achieved within our own institutional we are building on local innovations and linkages be- frameworks and incentives. tween formal and informal justice actors, while also As several evaluations demonstrate, donor efforts (on strengthening core governance functions within the justice and otherwise) tend to have three effects, in formal justice sector. This approach seeks to avoid rough order of frequency.11 First, engagements ideological responses while promoting practical bounce, or at best leave a few skid marks, and are measures of improving justice service delivery. largely irrelevant. They often neglect or outright evade We will explore these initiatives in greater depth in the key contests and binding constraints, focusing on later installments of Just Development. the non-contentious spaces, leaving behind organiza- tions and practices that are quickly abandoned, or There is also a fifth question: How do we know if our pulling out at the slightest sign of resistance. intervention is helping address the justice problem? This takes us into the world of development effective- Second, also from bitter experience, they do harm. ness. This one we’ll save for another day. This can happen because they create new sites for 10 For an illustration of how these dynamics work in Solomon Islands, see Craig, D. and D. Porter Political Settlement in Solomon Islands: a political economic basis for stability after RAMSI?, Australian National University Issues Briefs, State, Society and Governance in Melanesia Program, (2014). Available at: http://ips.cap.anu.edu.au/publications/political-settlement-solomon-islands-political-economic-basis-stability- after-ramsi 11 Craig, D & D Porter, Development Beyond Neoliberalism: Governance, Poverty Reduction and Political Economy. (London: Routledge, 2006). 4