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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005                  C. Sage et al., conference paper




    BREAKING LEGAL INEQUALITY TRAPS: NEW APPROACHES TO BUILDING

            JUSTICE SYSTEMS FOR THE POOR IN DEVELOPING COUNTRIES



                              Caroline Sage and Michael Woolcock1, World Bank

                                                   csage@worldbank.org




Abstract: There has long been broad agreement on the importance of building—and enhancing
access to—“rule of law” systems in developing countries, but efforts to do either of these things
have an unhappy history. These failures, we suggest, are largely a product of a flawed theory of
what “law”, “justice” and “institutions” are, how they come to take the form they do, and thus
how they can be established elsewhere. This theory of institutional reform, however, and the
assumptions on which it rests, is not confined to the legal “sector”, but to this day pervades and
is reinforced by our prevailing development discourse and practice, most obviously with respect
to the status of categories such as “social development” and imperatives to seek straightforward
“policy implications” of social research. We outline the core tenants and assumptions of this
theory, and show how its deployment in “legal judicial reform” has underpinned successive
waves of disappointing outcomes. We also outline an alternative theory, and show how it is
informing a new generation of innovative efforts to improve the accessibility, legitimacy and
effectiveness of justice systems for the poor.



Keywords: justice sector reform, access to justice, institutional reform, policy reform, social
     policy


DISCLAIMER:
This is a draft working paper produced for the World Bank conference, ‘New Frontiers of Social Policy:
Development in a Globalizing World’. The findings, interpretations, and conclusions herein are those of the
author(s) and do not necessarily reflect the views of the International Bank for Reconstruction/The World Bank
Group and its affiliated organizations, or its Executive Directors, or the governments they represent. If you wish to
cite from this document please request the latest version from the author(s) or from socialpolicy@worldbank.org.




1
  We thank Daniel Adler, Mathew Stephens, and other colleagues involved in operational ‘Justice for the Poor’
initiatives for stimulating our thinking on these matters.


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          To even get to a space where we can think about the types of ‘policy reforms’ that might
usefully be deployed to enhance the accessibility, legitimacy and efficacy of justice systems for
the poor, we first need to understand what we mean by these concepts. That is, a concern with
‘justice sector reform’ or ‘access to justice’ needs to start with an analysis of first principles,
which define and articulate the relationship between law, policy reform and development
practice. First, why should we care about law and/or justice in the first instance? In particular,
why should development practitioners (and development organizations) concern themselves with
the legal and rule-based systems that underpin social relations? Second, once we have established
that legal and rule-based systems are a key aspect of socio-political and economic life—and thus
policy reform and development—what does this mean for how we understand different legal and
rule-based systems, and how the reform of such systems might be approached? Put another way,
how have understandings of legal and judicial systems shaped approaches to justice sector
reform, and why have these programs so often failed to achieve their objective? In light of our
focus in this paper, how have these approaches served to reinforce ‘legal inequality traps’? Third,
how do these approaches to justice sector reform reflect current understandings of, and
approaches to, ‘policy reform’ more generally? How might a different theory of law and
development inform not only different approaches to justice reform, approaches aimed at
breaking, rather than reinforcing, ‘legal inequality traps’, but also a different understanding of
processes of reform in development more generally?

          While these questions are difficult to separate, we explore each of them in turn below. It
is our contention that the limited success of previous waves of judicial reform in low income
countries have been less a function of inadequate effort, ‘political will’, or implementation
‘capacity’ (though these elements doubtless remain significant), but of a flawed theory of both
the ontological status of ‘the law’, ‘policy’, and of institutions and institutional reform more
generally. As such, any subsequent efforts at judicial sector reform must be grounded in an
alternative (and putatively ‘better’) theory.

1. Imagining the ‘Rule of Law’: Understanding Legal Inequality Traps

          The ‘modern’ justice system—‘imagined’ as a rule of law system—that exists in varied
permutations in different developed countries around the world is indelibly a constituent element
of (and both the result of and a pre-requisite for) the modernisation of socio-economic relations.


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Such a statement may initially appear uncontroversial, but taken seriously it has broad and
important implications for how one understands legal systems and in turn conceives and enacts
judicial reform initiatives in low income countries.

          The relationship between the modernisation of socio-economic relations and an
effectively functioning legal and regulatory system is now widely accepted; such systems are
thus seen as key for equitable and sustainable development. The emergence of effective
economic institutions, for example, have historically required the enforcement of property rights
for a broad-section of society and equality of opportunity—including equality before the law—so
that individuals have the incentive and opportunity to take part in economic activity.2 Well
functioning legal systems have served to reduce transaction costs and increase the predictability
of behaviour and certainty of process3; the creation of formal property rights has been shown to
reduce the time and costs of transacting by standardizing a transferable title system; countries
that have managed to remove the fear of expropriation via enforceable rule systems have been
associated with faster levels of economic growth4. The agricultural sector in Thailand, for
example, has benefited economically from land titling reform. Furthermore, a well-functioning
justice system is also crucial for the effective delivery of public services and the distribution of
socio-economic and political rights.

          In contrast, poor economic institutions have emerged in situations where power resides in
the hands of a narrow elite who may grant rights to themselves, but where the rights of most
citizens are ignored. In these situations, achieving a more equitable distribution of political
power, with constraints on executive power, is therefore seen as crucial to the emergence of
sustainable institutions. In many countries, the ‘rule of law’ is the fundamental basis by which
executive power is constrained and property rights are enforced.5 Within an idealized ‘rule of
law’ system, equitable legal and regulatory institutions operate as safeguards against abuses of
state and non-state power while well-functioning regulatory frameworks are crucial for the
effective delivery of public services. A ‘rule of law’ system is generally characterized by


2
  These characteristics of and requirements for good economic institutions are discussed in detail in the World
Development Report 2006 (World Bank 2005).
3
  Matsuo (2004).
4
  See, for example, the large literature inspired by Knack and Keefer (1995).
5
  This system also arguably maintains competition within political institutions by establishes mechanisms for vetoes
on power and sanctions for the misuse of power; see, for example, Haber (2001).

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multiple arms of government—the executive, legislature and judiciary—with each branch
holding the others accountable through differing ‘checks and balances’. The separation of
powers principle aims to combat the dangers of investing state power in one person or group.
The judicial branch, in particular, exists to protect citizens against the arbitrary or inequitable use
of political or economic power. Further, predictable and fair ‘rules of the game’ and secure legal
rights are seen as the basis for an effectively functioning society where people’s basic rights are
protects and conflicts within and between communities are mediated.

          Unfortunately, this ideal bears little resemblance to reality in many countries around the
world. In many countries legal systems in fact serve to perpetuate equitable power relations and
discrimination, producing what we are calling ‘legal inequality traps’. Structures of inequality
affect both the creation of justice sector institutions and the context within which they operate;
they are embedded in the rules, practice and norms that perpetuate these institutions. Legal and
regulatory institutions, in turn, affect the distribution of opportunities and the processes by which
these opportunities can be leveraged to enhance well-being. In some countries, justice sector
institutions by their very design perpetuate elite interests at the expense of the majority of the
population. In many other countries, formal rules which seemingly protect the interests of the
broader community are undermined by institutional practices and informal strategies. Whether
understood as ‘elite capture’6 or corruption7, these systems and practices serve to increase the




6
  Generally speaking, capture means that the equitable operation of legal, political and regulatory institutions is
subverted by the wealthy and the politically powerful for their own benefit. This reference to the subversion of
public sector institutions has led some people to refer to this phenomenon as ‘state capture’. Others use the term
‘elite capture’. Elite in this context means any economic, political, ethnic, social or other group trying to promote
their interests at the expense of the interests of non-elite members. In the context of this paper, the terms ‘state
capture’ and ‘elite capture’ will be used as synonyms. See Glaeser, Scheinkman, and Shleifer (2002) and Hellman
and Kaufmann (2002) for a more detailed discussion of elite capture.
7
  The definitions of corruption are as diverse as the forms corruption can take. For the purposes of this paper, we
will understand corruption as the abuse of public power or public office for private gain, taken from You and
Khagram (2005). So what is abuse of public power? The term ‘public power’ relates to the exercise of government
functions. Their abuse can be imputable to two different perpetrators. The first one is the person who holds public
office and exercises government functions. The abuse can be the deed of this public official without anybody else’s
participation. The other perpetrator can be a person who seeks to influence by inappropriate means the exercise of
government functions that he himself does not have. In this case, corruption is collusive behavior. As a consequence,
the abuse of public power comprises both configurations. Private gain in this context is the change of the sound
balance between public and private interests (common good) during the decision making process in favor of
particular interests. As a consequence, neither the processes nor the outcomes are equitable.

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power and wealth of a few at the expense of the majority of the community, leaving the poor
suffering the harshest consequences.8

2. Norm, Rules, Policies, and Regulations: Understanding the ‘Shadow of the Law’ in a
Modern ‘Rule of Law’ Culture

          In the modern state, law permeates every aspect of our lives, from everyday transactions
such as catching a bus to actions as ‘natural’ or ‘personal’ as having children. Yet social
interactions are so embedded within dominant norm-based institutions that these guiding and
controlling structures are barely recognised in their everyday functions—that is, of course, unless
the rules are transgressed or broken. Only in these transgressions is the reach and inherent power
of the system laid bare, as is the interdependent nature of law and what we call ‘policy’. Further,
it is only in these transgressions that the need for a basic compatibility between social norms and
laws is highlighted; the legitimacy and authority of law is dependent on broad, mutually agreed
on social norms, which in turn are shaped by legal institutions. Take two simple examples from
Australia that could not, at face value, seem more different: a law student accused of plagiarising
a law school assignment, and the birth of a child in an indigenous community in Maningrida,
northeast Arhnem land.

          Case A. In the first example, it may seem obvious to many people that plagiarism faces
tough sanctions within a law school. It may be less immediately obvious, if not thought through
in detail, how and why such sanctions play out in practice, and what this tells us about the source
of their legitimacy. We follow a generalised example from a university in the state of New South
Wales.

          When faced with a law student who one believes has plagiarised, a lecturer has a number
of sanctions at his/her disposal. Both possible sanctions and possible responses to these sanctions



8
  The poor, as well as small businesses, suffer most from paying the extra costs for having access to public services,
which are associated with bribery, fraud, and the misappropriation of economic privileges. This is why corruption is
sometimes compared to a regressive tax, which disproportionately affects small businesses and the poor. Fro
example, Kaufmann’s (2001) discussion of bribes in Peru; the bribes paid do not only amount to a higher percentage
of the poor’s income, but the average bribe payment in absolute amounts is also higher among the poor than among
the rich. The poor are also most reliant on the provision of public services. However, corruption reduces the
effectiveness of public administration and distorts public expenditure decisions, channeling urgently needed
resources away from sectors such as health and education to corruption-prone sectors or personal enrichment. See
discussion at http://www1.worldbank.org/publicsector/anticorrupt/topic1.htm.

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by an accused student are set out in law school policy. However, such a policy gains its authority
and legitimacy from two equally important cross-checking sources: the broader university
regulations on the one hand, and, on the other, the normative understanding that make such
sanctions broadly acceptable to the university community.

          The broader university regulations allow—and in fact often require—each faculty and
school within the university to establish a set of policies that are in line with (and gain their
authority from) the broader set of regulations. The university regulations in turn are given their
authority from the act that established the university in the first instance, which was more likely
possible via delegated powers outlined in the state’s higher education legislation. Finally, the
state parliament is given authority to pass higher education laws by the Australian Constitution,
which sets out the division of powers between the state and federal legislatures. While it might
therefore be said that a lecturer’s actions within their law class are indirectly governed by the
highest law of the land, the broader legal framework also provides a pathway along which the
student can challenge such behaviour: the vertical layers of authority down to the law school
lecture hall, that legitimate a lecturer’s actions, provide corresponding mechanisms to challenge
or appeal those actions upwards. The overarching legal system thus provides for the distribution
and articulation of corresponding rights and responsibilities, providing mediating institutions for
human interactions and relationships, and the inherent distribution of power in those
relationships. If an appeal has failed at the level of the law school, the student has a number of
other avenues of redress within the university, often ending with an internal academic tribunal. If
this fails, a student may then appeal to the external court system and, in principle, may work their
way all the way up the system to the High Court.

          Ultimately the rules governing interactions with the law school—as outlined in law
school policy—and the adjudications processes that resolve disputes around these actions, are
governed by an integrated, multi-layered system that stems up to and reaches down from the
highest law of the land. At the same time, all levels of this system are also dependent on the
system itself being broadly understood and accepted by the wider community, a point we explore
in more detail below. As the next example shows, however, in a community as regulated as
modern Australia, where the overarching legal framework conflicts with local rule based
systems, alternative norms either remain regulated—and thus suppressed—by the dominant
system or are left unmediated, creating either a void of interaction or potential conflict.

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          Case B. It has been said that the indigenous communities in Arhnem land, in northern
Australia, live in ‘fourth world’ conditions. The encroaching modern world has resulted in the
construction of towns such as Maningrida, where a variety of different clan groups—that used to
carry out a subsistence lifestyle across different parts of the country now closed off by ‘modern’
property rights and ownership—are brought together to live, and to (arguably) benefit from the
provision of aid and modern services such as education and health care. The importation of
modern diseases, coupled with the breakdown of traditional social practices that may have
provided alternative health care (or at the least more healthy diets), has made these towns a
melting pot of diseases, many of which are unheard of in the rest of Australia. In response, the
Australian government has attempted to provide a myriad of health-related services, from
vaccinations to general health care clinics to aged care facilities.

          Given their relative isolation, most specialist medical needs are serviced from Darwin, a
two-hour flight from Maningrida. In particular, antenatal care, birthing, and postnatal care are all
provided for in Darwin: all expectant mothers are flown to Darwin for up to four months. Given
the prevalence of disease and serious health problems, low life expectancies and high levels of
neo-natal deaths among Arhnem land communities—and the serious criticism the Australian
government faces in relation to these problems—providing specialist services in Darwin is seen
by the Australian health authorities and government services as a serious attempt to provide high
level medical care and to increase the chances of healthy births. Growing criticism and declining
health statistics have resulted in an extremely regulated health care regime: these natal services
are not just provided, they are required. All pregnant women in the community are referred to
Darwin; in the situation where a woman does not want to go, local health care authorities
persuade and/or cajole, and ultimately provide no alternative. Traditional midwives, where they
still exist, are not recognised by law, and are considered ‘dangerous’ by local health care
authorities. If a woman ultimately refuses to go—as happened in a recent case—the local health
care authorities present them with a tirade of legal disclaimer documents removing any legal
responsibility or liability on the government’s behalf.

          Given the serious health care situation in Maningrida, this may seem like a reasonable
(and correspondingly serious) response on the part of the Australian government. In fact, given
that all these services are freely provided and that the level of care provided in Darwin is in line
with world standards, this may seem like an extremely generous, progressive, rights-based

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program (fulfilling and protecting people’s right to health). However, besides possible problems
with the general level of social control this situation highlights, there is one overwhelming
problem with this picture: under indigenous law in Arhnem land communities, the ‘place of
birth’ is a key cultural determinant in clan lines, rights and authority.

          While differing systems of law exist among the different clan groups now residing in
Maningrida, ‘birth place’ is accorded some significance in all of them. When expecting a child,
women are obliged, under traditional law, to return to ‘their country’ to ensure the ongoing
connection of their children to the land and to the laws that are seen to emanate from that land.
This physical connection to the land provides the basis for a child’s clan lineage and their rights
and responsibilities as ongoing custodians of that land. For Australian health care authorities,
however, these disperse birthing practices are too difficult to regulate or to service. It is also
important to note that servicing health care needs in some areas would in some cases actually
transgress private property rights, where traditional lands have been transformed into private
farming lands. On the other hand, traditional health care practitioners and midwifes have been
disseminated by the breakdown of traditional lifestyles and the relocation and transformation of
local communities.

          In practice, however, many women still continue to travel back to their traditional lands
to birth their children. Their actions are ‘outlawed’ (or at least outside the law) and thus they are
given no help or assistance from local health care providers, who are in fact obliged (by law) not
to help them. The breakdown of local communities and the movement of most communities into
constructed towns such as Maningrida mean that even when tradition midwifes do exist they are
generally not in outlying areas. These women continue to experience high levels of birth-related
health problems, and high levels of maternal and infant mortality. In contrast, while women who
agree to travel to Darwin experience better health outcomes, the birth of many children ‘off
country’ serves to undermine traditional institutions and increases the conflict between local
communities and government services, or alternatively between local communities.

          The conflict between these local level legal institutions and the dominant legal
framework tends to play out—and thus reinforce inequitable social relations and/or influence
social change—in a number of different ways. First, the primacy of modern Australian law in
these circumstances ostensibly ‘outlaws’ traditional practices. As a result, traditional laws are


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either undermined or forced underground. The breakdown of such practices at birth then has
ripple effects through all other areas of traditional law. Second, the conflicts that already existed
between the laws of different clans, forced to coexist in a newly constructed social space, are
exacerbated. Rather than supporting the development of mediating institutions to assist
communities to shape new shared normative institutions, these practices support the construction
of ‘authentic’ indigenous people verses those who have broken with traditional law, leading to
conflicts between different evolving notions of traditional rules at the local level. Yet those who
have arguably ‘broken’ with traditional law do not have clear pathways into an alternative
system; the space for them to enter into modern Australian life is limited by their socio-economic
situations and their isolation, not to mention the ongoing racism faced by indigenous people in
broader Australian society. Somewhat ironically, one of the few pathways into modern socio-
economic relations is via the exchange of traditional knowledge and artefacts, which themselves
are highly dependent on the notion of ‘authenticity’ and ‘traditional culture’.

          In short, given the conflicting legal norms faced by a pregnant woman in Maningrida,
what may seem as simple and ‘natural’ as birthing a child, has far reaching consequences for her,
her child, and the wider local community, as well as the relationship between this community
and broader Australian society. These conflicts mean that what might seem like a sensible and
well-funded development initiative may actually serve to undermine the overall wellbeing of
these women and children and decrease broader development aims. This is despite (and clearly
because of) the primacy of the dominant legal framework and the fact that the lives of such
women are extremely regulated by government providers. Furthermore, this is despite the fact
that plentiful resources exist to support development in these communities. In fact, both
government resources and aid workers are in over supply in a town like Maningrida, which
boasts one service provider or aid worker for every twelve indigenous people, and a state-of-the-
art school, health care clinic, and even a newly constructed outreach centre from Charles Darwin
University (that boasts one indigenous student!). Resources and intentions are not the problem. It
is our contention, however, that a misunderstanding of the nature and power of law is.

          Three questions that are relevant to development practice arise out of the examples
outlined above. First, what can such a modern system of regulation tell us about the constituent
elements and functions of a rule of law system, and the place and role of ‘policy’ within the
overall framework? Second, what are the consequences of conflicting rule-based systems within

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a modern legal framework, and how are (or might) these incompatibilities be managed? Third,
what might the modern manifestation of social regulation tell us about the types of interventions
that might or might not be useful in communities (or even countries) where such a mutually
accepted and embedded system does not exist?

3. From Imagining a ‘Rule of Law System’ to Designing Justice Sector Reform: the
Dominance of Form over Function

          Given the centrality of rule-based systems, both to how societies function and to how
policy reform takes shape, one would think that legal and regulatory considerations would be
central to all development projects. While most economists and other development practitioners
arguably recognize the importance of law, they tend to take it for granted, ignore it, or focus on
isolated laws taken out of their institutional context. On the other hand, the justice sector reform
movement could be criticised for taking it to the other extreme—i.e., promoting the design of
rule based systems that have little relationship to socio-political and economic practice at the
local level. This approach has been reinforced by the assignment of legal and judicial reform
issues to a ‘sector’, with reforms of the ‘justice sector’ being abstracted from the broader
frameworks of political governance and social norms that are central to its functioning.

          Justice sector reform has emerged as a central concern of many development agencies,
with strengthening the rule of law being explicitly identified as both a priority development goal
in recent international declarations9 and as one of the four pillars of development in the Bank’s
Comprehensive Development Framework. The Bank currently finances more than 600 projects
relating to legal and judicial reform, including 30 freestanding projects in five regions, and has
recently committed to ‘scaling up’ these efforts via the new Legal Modernization Initiative
(LMI). This commitment is based on the ongoing belief that effective legal and regulatory
institutions are essential to both sustaining economic growth and crafting equitable development
strategies.10

          The understanding that law is essential to development, while stemming from a long
history of jurisprudential and economic thought, was first clearly articulated in the law and


9
  Including the Millennium Declaration (September 2000), the Monterrey Consensus (March 2002), and the World
Summit on Sustainable Development (September 2002).
10
   This topic is explored in some detail in the World Development Report 2006 (World Bank 2005).

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development movement of the 1960s. More than a decade of legal reform projects and initiatives,
funded primarily by the Ford Foundation and private American donors, engaged academics from
leading American universities to assist countries to reform their substantive laws and legal
frameworks. The movement rested on a belief that law could be used to change society, “that law
itself was an engine for change” and that “lawyers and judges could serve as social engineers”
for change.11 The primary goal was to transform ‘legal culture’ through legal education and the
transplantation of select ‘modern’ laws and institutions, with an emphasis on economic
(commercial) law and the training of pragmatic business lawyers.12

          A decade later, the movement was declared a failure and those involved in the process
made considered efforts to understand its demise.13 David Trubreck, a key participant in the
movement, argues that the movement rested on four pillars, all of which crumbled. These pillars
were

                    a cultural reform and transplantation strategy; an ad hoc approach
                    to reform based on simplistic theoretical assumptions; faith in
                    spillovers from the economy to democracy and human rights; and a
                    development strategy that stressed state-led import substitution.14


          Arguably, the most significant criticism and reason for the movement’s failure was the
belief that American style “legal liberalism” could be transplanted wholesale to developing
countries. Reformers found that local legal cultures were highly resistant to change and that even
when laws where changed they often had little impact in practice. Of greater concern to those
involved was the fact that in some cases new laws served to enhance the power of local elites,
presenting “the frightening possibility that legalism, instrumentalism, and authoritarianism might
form a stable amalgam so that their efforts to improve economic law and lawyering could
strengthen authoritarian rule.”15




11
   Messick (1999)
12
   Trubeck (2003)
13
   For a discussion of the law and development movement by those involved, see Trubeck and Galanter (1974),
Merryman (1977), Gardner (1980), and Trubreck (2003).
14
   Trubeck (2003)
15
   Trubeck (2003)

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          Critics argued that the movement lacked any clear theory of law, the role of justice
systems, or the impact of law on development that could have informed this engagement with
other types of justice systems. Local level context and the systems of justice operating in these
contexts were largely ignored. As such, the movement failed to acknowledge the systems by
which many people (if not most poor people) in developing countries order their lives.16

          The current ‘legal and judicial’ reform (LJR) movement emerged in the early 1990s, with
an understanding that the problems the law and development movement attempted to address
were still relevant, namely that legal and regulatory frameworks are crucial for effective
economic development. Armed with the lessons of the previous movement, the new initiatives
focus more on the institutions underpinning a given legal system rather than on the laws
themselves.

          Projects are generally designed to strengthen the capacity of key legal and judicial
institutions at the state level, where a number of predetermined institutions (courts, ministries of
justice, bar associations, law schools) are conventionally accepted as the essential building
blocks of a rule of law system.17 In general, reform initiatives aim to make the judicial branch
independent, speed the processing of cases through the courts, increase access to dispute
resolution mechanisms, and professionalize the bench and the bar.18 Activities range from
reforming law school curricula and training judges and legal professionals to setting up
specialized courts and introducing comprehensive case management systems into the courts. As
such, they have generally been designed as top-down technocratic solutions to (what are seen as)
institutional gaps or weaknesses. In some cases, reform activities include establishing legal aid
clinics and legal information, awareness and literacy programs.

          In the past decade, the Bank has financed hundreds of legal and judicial reform initiatives
and numerous stand alone projects. Other bi-lateral development agencies and multi-lateral
donors have committed hundreds of millions of dollars to reforming judicial systems, with the
majority of developing countries and former socialist states now receiving assistance for some




16
   Trubeck and Galanter (1974)
17
   See World Bank (2003) for a discussion of the different institutions that make up a rule of law system.
18
   Messick (1999)

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kind of justice sector reform.19 Unfortunately, however, the latest spate of legal and judicial
reform projects, programs and strategies have not managed to report considerably more success
than the previous law and development movement. While there is little consensus on what a
successful project entails, there are few examples where major impacts have been reported; as
Thomas Carothers correctly notes, “projects have fallen far short of their goals”.20 Numerous
surveys and evaluations of recent justice sector reform projects arguably bring current
approaches to legal and judicial reform into question, once again.21

4. Learning Lessons Twice?

          Regrettably, some of the explanations given for the disappointing results in Legal and
Judicial Reform initiatives over the past decade mirror the lessons learnt from the law and
development movement of the 1960s: elite capture of the formal system and the reform process,
lack of attention to local contexts and informal institutions, and the ongoing tendency to
understand the ‘rule of law’ and the role of law and the judiciary according to a U.S. (or
‘Western’) image.22 Other explanations have included related issues such as the lack of political
will within countries and pervasive corruption.23

          As with the law and development movement, the reforms lack a sound theoretical or
empirical basis. Despite the fact that it is over 40 years since the law and development
movement24 and over a decade since the revived interest in justice sector reform, there remains a
dearth of systematic empirical research on the efficacy of justice sector reform programs.25 Frank
Upham argues that the ‘new conventional wisdom’—or ‘new rule of law orthodoxy’—within
development circles is based on a belief in “regimes defined by their absolute adherence to
established legal rules and completely free of the corrupting influences of politics”.26 Upham
argues that much of the rule of law orthodoxy is based on myths; not only do such systems not

19
   Id.
20
   Carothers (1999)
21
   See, for example, Faundez (1997); Gardner (1980); Gupta, Kleinfeld and Salinas (2002); Hammergren (1998);
Lawyers Committee for Human Rights (1996); Rose (1998); US Agency for International Development (1994). See
also Chopra and Hohe (2004).
22
   Garth (2001)
23
   For example, see Hammergren (1998).
24
    For discussions about the ‘failure’ of the law and development movement, see Trubek and Galanter (1974);
Merryman (1975); Burg (1975).
25
   For a discussion of the problem of knowledge in rule-of-law programs, see Carothers (2004).
26
   Upham (2002); see also Golub (2003).

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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005                 C. Sage et al., conference paper



exist anywhere in the developed world, but attempts to transplant a template of rules and
institutions into a developing country often undermines pre-existing systems of regulation and
conflict resolution.27

          Again, one of the major criticisms of LJR approaches over the past decade has been the
lack of real engagement with local level contexts, circumstances, and value systems. Systematic
research on the interface between informal or customary legal systems and the state regime is
particularly limited.28 Critics argue that a “centralized ‘top-down’ approach to law-making and
judicial reform has caused social rejection of the formal legal system among marginalized
segments of the populations in developing countries, who perceive themselves as ‘divorced’
from the formal frameworks of public institutions”.29 Moreover, state law is often at odds with
informal or customary institutions, which often operate independently. At the same time, reforms
that undermine existing informal institutions without providing viable alternatives can create
conflict and uncertainty; the ensuing vacuum can lead to power grabbing, lawlessness, or even
violent conflict. This is particularly important in highly heterogeneous and unequal communities
where there are fewer shared systems of meaning, such as in parts of Africa and Indonesia, for
example, where numerous different customary systems operate in a given region (e.g., Bowen
2003).

          The framing of justice sector reform as technical assistance or infrastructure reform has
also created a contrasting problem. Justice sector reform entails social and political change, and
as such often involves realignments of the distribution of power and control over rights and
responsibilities. Formal law is not neutral, but rather it articulates, protects and enforces sets of
relationships, rights and responsibilities. Justice sector reform in many cases may aim to extend
rights and protections to disadvantaged groups in the community, possibly at the expense of the
elite. It is therefore crucial to take into account the ‘distributional’ affects of reform which are




27
   Id. For a discussion of institutional myth making in other public sector development contexts, see Pritchett and
Woolcock (2004).
28
   For a survey of literature on the interplay between formal and informal dispute resolution mechanisms, see
Messick (1999).
29
   Buscaglia (2001)

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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005      C. Sage et al., conference paper



often neglected in policy and project design; it is essential to recognize that the very process of
institutional and regulatory change will often be contested.30

          While these possible ‘trade-offs’ may only be short term, and in fact may be necessary
for the long term prosperity of a country, they may still present difficulties in terms of gathering
(and sustaining) the political support necessary for effective reform. Reforms intended to reach
marginalized groups may be rejected by those who stand to lose power; the struggle to maintain
or gain power in the process may mean that formal laws are not enforced or are supplanted by
alterative rules or informal systems. In this way, customary institutions may actually hinder the
reform process unless they are targeted as part of the reform strategy. While political and
economic rights may be introduced into the formal systems, real change is unlikely to occur
without a constituency that demands a certain level of service and accountability.

          Attempts at institutional reform in other areas have had similar difficulties. Economists
have found that while strong institutions provide great insight into the determinants of growth,
they are not independent in the development process. Factors like norms, informal systems of
dispute resolution, social networks, and tribal customs (among others) may help explain why
some countries experience more rapid growth, even if their ‘rule of law’ scores (as measured by
most indices) are the same. Institutional reform isolated from its context has not provided much
success in the past; understanding local rules along with their relation to formal systems may
provide a more comprehensive picture of the ‘optimal’ legal system and possibly an avenue
toward sustainability.31 These wider difficulties with institutional reform highlight a broader
problem with approaches to policy reform; namely, models of justice sector reform do not only
lie in the imagined realm of ‘the rule of law’, but are also a clear reflection of accepted notions of
‘policy reform’ more generally.

5. So what is Policy Reform? ‘Justice Sector Reform’ as a Reflection of Broader
Development Assumptions

          In the standard academic and operational paper in development, a review of the literature
and an analysis of empirical data (of some kind) give rise to a concluding section on ‘policy



30
     Pistor (1999)
31
     Matsuo (2004)

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implications’. A number of key assumptions underpin this logic. One is that ‘policy’ is in fact
able to be shaped by argument and evidence; another is that ‘policy’ is the most important (and,
concomitantly, the most accessible and malleable) determinant of the resources, services, or
decisions as experienced by citizens/clients: if we get the analysis and evidence right, and can
use it to suitably influence ‘policymakers’, we will sooner or later see corresponding
improvements in the welfare of a particular target group (e.g., the poor). A third assumption, on
which the second rests, is that all elements of economy, society, and polity are coherently
integrated, such that a ‘policy change’ in one domain can predictably be expected to generate a
corresponding shift in another. More problematically, two alternative versions of this third
assumption may exist: either that other domains are fully functioning—e.g., Dixit’s (2004) idea
of the presumed legal system in economics—or that different arenas of socio-economic life can
be divided up into actionable arenas divorced from the other more messy elements of human
existence. Interestingly, one of the great contradictions of the modernist vision is its obsession
with, on the one hand, the separation and categorisation of interdependent variables of human
existence (Latour 1993) and, on the other, its dependence on their very interdependence and
coherence. Yet, the assumptions reign on: the existence of policy schools, research departments,
and think tanks rests heavily of their veracity.

          In some important senses and domains of public life, of course, these assumptions are
more easily supported. Whether US interest rates should change or not, for example, is
determined partially through political imperatives, legal frameworks and professional
preferences, but for the most part a handful of smart macroeconomists make their important
pronouncements on the basis of a vast assemblage of carefully compiled and rigorously analysed
data. More and better data, ipso facto, can be expected to generate wiser ‘policy’. But the very
ability of one aggregate number, tweaked by a quarter of a percentage point, to influence the
price of (and thus demand for) milk in Maine and cars in California depends not merely on
pervasive “market forces” but a rich and coherently integrated set of institutions and rule-based
systems, from property rights to banking laws to money itself. For a ‘policy’ to have effect, it
must reside at a critical entry point into such an integrated system, whether one is talking about
macroeconomic policy shaping top-level regulation, or a lecturer’s actions based on law school
policy at the bottom. This system, and the capacity to ‘manage’ it on the basis of (at least
nominally) independent professional expertise, is one of the crowning achievements of


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modernity; it is a defining characteristic, and a key determinant, of prosperity in the ‘developed’
world.

          However, the coherence of the modernist vision is as dependent on socially accepted
norms and practices as it is on manifest structures. The state of institutional arrangements has
been socially constructed and politically negotiated over the course of numerous decades (even
centuries). This is not to say that the roads to ‘modernisation’ are necessarily all heading in the
same direction to the same destination, with countries merely arrayed at different points along it,
as has been claimed by early modernization and Marxist theorists (the legacy of which endures
to this day). Rather, our vision is instead one of parallel roads to multiple, largely unknown (at
the outset) destinations, the common characteristic being that each country embraces the
modernist challenge, but in its own (culturally appropriate, politically legitimate) way. Over
time, and as the development process unfolds, the institutions of each country thus come to
perform similar functions but to display quite idiosyncratic forms. Indeed, even a cursory
examination of so-called “Western” institutions such as democracy, law and capitalism in
today’s high-income nations reveal them to have precisely these characteristics: the banking
systems of Austria, Canada, and New Zealand, for example, perform very similar tasks for their
citizens and sustain broadly comparable standards of living, though their precise histories,
institutional forms and regulatory foundations are vastly different.32 Most developing countries
are at various points along this road, and as such there is considerable heterogeneity with respect
to the capacity and coherence of their institutions and ‘systems’; efforts to “fast track” the
modernization process in low-income countries by merely transplanting institution designs from
high-income countries have routinely been unsuccessful (Scott 1998).

          Yet, the image of the benign technocratic ‘policymaker’ presiding over a coherently
integrated system is so powerful and widespread, that we implicitly assume that merely softer
variations of it are—or if they are not, should be—in play elsewhere. It is our contention,
however, that this model (and the logic on which it rests) has a number of important flaws, and
that it is especially problematic to defer to it when considering many of the issues that are at the
heart of the social development and legal/judicial ‘reform’ agenda. Indeed, we posit that not only


32
  The interdependent manner in which these processes first unfolded around the globe in the nineteenth century and
gave rise to the “birth of the modern world” is deftly outlined by Bayly (2004).


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are the terms of this debate problematic in the first instance, but that if social development
professionals enter—and thus reinforce—‘policy debates’ cast in these terms, they will routinely
lose, and be further marginalized. To see why, it is important to understand that there are two
distinctive characteristics of the realms over which social development has ‘policy’ jurisdiction.
First, the manner in which social ‘policies’ and ‘programs’ are actually experienced by
citizen/clients turns heavily on the discretion of front-line providers, while the very act of
delivering them necessarily requires large numbers of face-to-face transactions (Pritchett and
Woolcock 2004). Treating AIDS patients, teaching children, resolving local disputes and
building farmers’ cooperatives are inherently tasks that cannot be mechanized (and are not, even
in high-income countries); improving them is only in the most limited sense a matter of crafting
‘better policy’.

          Second, all ‘policies’, but most especially those displaying the characteristics just cited,
are mediated in and through a vast assemblage of rules, from informal norms governing
everyday interaction to formal contracts underpinning commercial life to statues documenting
the procedures that determine the transfer of political power. In the interest rates example cited
above, the workings of the micro-economy depend heavily on trust and shared social norms that
enable numerous and complex exchanges to take place between complete strangers (Seabright
2004). In the law school example, shared social norms and multiple layers of laws and rule-based
processes enable the lecturer to take action and the dispute to be resolved. In both cases, the very
legitimacy of these rules and a willingness to abide by them depends on the presence of a
coherent overarching normative order. In this sense, all ‘policies’ have purchase to the extent
they are embedded in a binding and legitimate set of rules and agreements between various
parties; one can sensibly speak of ‘policy implications’ only to the extent that any such ‘policies’
can enter this space of shared agreements.33

          As approaches to justice sector reform illustrate, lawyers and legal scholars, for their part,
are no less imbued with their own variation on these assumptions, believing that achieving just
and desirable social outcomes is largely a matter of “getting the laws right” or establishing an
“independent judicial branch”. Whether approached from an orthodox ‘social development’ or


33
  The recent film ‘Crash’, set in modern-day Los Angeles, powerfully depicts what happens to these everyday
exchanges when the normative order, even just incrementally, begins to break down.


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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005                     C. Sage et al., conference paper



‘legal reform’ standpoint, then, the ontological status of ‘policies’ generally, and thus the specific
epistemological basis on which one can meaningfully derive ‘policy implications’ from research
and/or contribute to ‘policy deliberations’, is far more complicated than the seemingly
straightforward formulations that permeate contemporary development discourse, and that the
modernist imperatives of large bureaucracies tend to require and reward. Recognizing this does
not suggest or excuse retreat from such deliberations, but should rather inform a new and broader
strategy for thinking about and enacting ‘policy’, especially as it pertains to social development
and the role of rule-based institutions in this and other development arenas.34

          What might such a strategy look like? How might such a strategy (or, more accurately,
the absence of such a strategy) help explain the unhappy history of attempts to address inherently
relational development issues in law reform or the delivery of legal services. Past approaches to
justice sector reform demonstrate how flawed assumptions about both ‘theory’ and ‘policy’ led
to frequent and repeated failure. We do not claim, of course, that better theory alone will solve
these complex problems or that our outline of a theory of rules and transitions is necessarily the
best available. And it is always easy to be wise after the fact. Our claim, rather, is that it is
essential to engage with the (often conflicting) local level legal and rule based systems that exisit
in a given community, and to understand the cross-cutting influences that these systems, and
their interactions with other rule based systems, have of broader socio-economic and political
relationships.

6. Rule-Based Realities: The Multiple Faces of Law

          Forms of non-state or customary law operate in the majority of nations across the globe.35
Informal institutions range from dispute resolution systems operating in different markets across



34
   While we talk about ‘social development’ in this paper, the irony of this does not escape us. Clearly the
sectorization of the ‘social’ and its separation into a distinct category of development is just as problematic as the
sectorization of ‘law’ (and/or any of the other standard ‘sectoral’ categories in development). The realm of social
development is clearly an artificial construction which at best may demand that development practitioners take
social relations seriously, while at worst may serve to further marginalize thinking that falls outside of the
‘economic’ realm. Either way, we engage with this category because in current manifestation of development
practice it exists and, as such—social construction or not—it has real impacts on the way development is currently
conceived and practiced.
35
   It is important to note that a vast array of practices, systems, traditions have been defined as informal, traditional
or customary law, all existing within vastly differing contexts. The use of ‘informal’ is used in contrast to ‘formal’
state systems and is not meant to imply that such institutions are procedural informal.

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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005    C. Sage et al., conference paper



the globe to customary ways of ordering life in remote villages and communities. As highlighted
above, the vast majority of human behaviour is shaped and influenced by rule-based and
normative frameworks. Even in societies with the most developed legal systems, only about 5%
of legal disputes (that is, 5% of situations that have been understood as ‘legal’) end up in court.
At the same time, nearly every aspect of our everyday lives is mediated by both formal and
informal normative frameworks, with both institutional and non-legal or social sanctions.
However, where state and non-state or normative rule-based systems have developed in relation
to each other, they often serve to complement and reinforce socially accepted codes and rules; it
is well documented that in countries with more developed legal systems the formal law acts as a
backdrop for normative behaviour and interactions in both the private and governmental
spheres.36 In contrast, in communities where the state systems lack legitimacy and/or political
reach, local level rule-based systems often act completely independently from the state legal
system, which may be rejected, ignored or not understood. Real difficulties arise where the
normative understandings embedded in local level systems are at odds with the rights and
responsibilities articulated in state law.

          In many developing countries, rule-based systems operating outside of the state regime
are often the dominant form of regulation and dispute resolution, with forms of customary law
covering up to 90% of the population in parts of Africa. In Sierra Leone, for example,
approximately 85% of the population falls under the jurisdiction of customary law, defined under
the Constitution as “the rules of law which, by custom, are applicable to particular communities
in Sierra Leone”.37 Customary tenure covers 75% of land in most African countries, affecting
90% of land transactions in countries like Mozambique and Ghana.38 Further, customary justice
differs depending on the locality and local traditions, as well as the political history of a
particular country or region. Ethiopia officially recognizes over 100 distinct “nations,
nationalities, or peoples” and more than 75 languages spoken within its territorial borders,
although many more exist without official recognition. In many of these countries, systems of
justice seem to operate almost completely independently of the official state system.




36
   See, for example, Ellickson (1991) and Posner (2002).
37
   The Constitution of Sierra Leone (1991) Chapter XII Article 170(3).
38
   Augustinus (2003)

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          Some states have tried to integrate traditional systems into wider legal and regulatory
frameworks, often with little success. For example, the Constitution of Ethiopia permits the
adjudication of personal and family matters by religious or customary laws39 and South Africa’s
1996 democratic constitution explicitly recognizes customary law.40 Many other countries in
sub-Saharan Africa have also made attempts to recognize customary tenure and customary
marriage arrangements within their state laws. Efforts to recognize customary land rights have
been made in countries in other regions as well, such as Latin America and South East Asia. It is
important to note, however, that in countries like Indonesia and the Philippines where customary
systems are formally recognized, in practice these systems generally continue to operate
independently of the state system (and/or in uneasy tensions with prevailing religious and legal
traditions41).

          Imposing formal mechanisms on communities without regard for the local level
processes and informal legal systems may not only be ineffectual, but can actually create major
problems. First, the failure to recognize different systems of understanding may in itself be
discriminatory or exclusionary, and hence inequitable. Second, there are often very good reasons
why many people chose to use informal or customary systems which should be considered and
understood. Third, there is ample evidence that ignoring or trying to stamp out customary
practices is not working, and in some cases is having serious negative implications. Fourth,
ignoring traditional systems and believing that top-down reform strategies will eventually change
practice at the local level may mean that ongoing discriminatory practices and the oppression of
marginalized groups in the local context goes unchallenged. Finally, focusing purely on state
regimes and access to formal systems in some ways assumes that such systems can be made
accessible to all, while clearly even in the most developed countries this is not the case.

          Legal and regulatory institutions gain authority and legitimacy in as much as they reflect
social norms and values. In many communities, traditional systems not only reflect prevailing
community norms and values, but the state systems lack legitimacy; they are seen as mechanisms
of control and coercion used by oppressive regimes. State systems are often seen as vehicles for

39
   Under Article 34, Constitution of the Federal Democratic Republic of Ethiopia, both parties must consent to have
the case heard in a traditional forum. In practice, however, there are no formal links between the traditional and the
formal system and no mechanisms to monitor the consent of parties.
40
   Bush (1979)
41
   On Indonesia, for example, see Bowen (2003).

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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005                     C. Sage et al., conference paper



elite political or economic interests, with fragile institutions and the lack of an empowered
citizenry in many developing countries leaving institutions open to corruption and elite capture.42
State law may be seen as a repressive tool used by a series of oppressive regimes.

           In countries where the state is considered corrupt, working through non-state systems
may have better returns for those involved. Even if state systems do not lack legitimacy, they
may be at odds with prevailing systems of conflict mediation within a particular community
and/or be predominantly inaccessible due to geographical and socio-economic barriers, or
alternatively due to a lack of knowledge or awareness of the system on the part of political
leaders. Further, state institutions in many developing countries lack basic infrastructure or the
capacity to turn law-in-books into “law-in-action”.43

           Moreover, in many cases state regimes do not have the capacity or legitimacy to fill the
gaps in social ordering and conflict resolution when local level systems are undermined.
Numerous studies have shown that when neither formal nor informal mechanisms are
functioning, human rights abuses and serious conflict are more likely to occur. Formal systems
may not only be rejected because they are considered inaccessible or oppressive; they may also
threaten traditional power bases by reallocating socio-economic and political rights. In some
cases, formal processes can dramatically increase transaction costs, which in turn render market
relations less efficient.44 In these situations, people often opt out of the formal economic system
in order to evade state intervention and/or taxes, and hence must also opt out of the formal legal
system.45 The process of economic development does not, therefore, automatically increase the
demand for formal systems. A clear example of this is provided by the development experience
of the so called “East Asian Miracle”, in which formal law only played a marginal role,
supplanted by negotiations between governments and business elites, government rules and
decrees and customary rules and dispute resolution processes.46 Informal and customary
institutions were arguably underpinning the process of growth and development in theses


42
   For a discussion of political and economic elite capture of state institutions, see Glaeser, Scheinkman, and Shleifer
(2002), and Hellman, Jones, and Kaufmann (2003).
43
   See Buscaglia (1997)
44
     Mattei (1998); see also Kranton and Swamy (1999).
45
     Pistor (1999)
46
     See Pistor and Wellons (1999).


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countries during this period.47 At the same time, since the 1980s questions have been raised
about the sustainability of such informal arrangements for ongoing development (as evidenced
by the manner in which the 1997 financial crisis exposed and exacerbated the limits of
institutional arrangements based predominantly on informal mechanisms).

           Finally, not engaging with the array of non-state systems of social organization and
dispute resolution may mean that informal mechanisms provide an adequate means of dealing
with certain types of conflicts, while other types of disputes remain unresolved.

7. Re-imaging Law and Policy: Reintegrating the Rules and Processes of Social Change

           So what does all this mean for justice sector reform and policy initiatives that aim to
enhance access to justice? Despite the accepted failures of past legal and judicial reform
initiatives, it is still widely recognized that effective legal and regulatory frameworks are
essential for sustainable economic development and poverty reduction. The question is therefore
not whether justice sector reform interventions can or should occur, but rather: What does
experience tell us about how best to approach, design, implement and assess policy and project
initiatives that attempt to build more equitable justice systems for the poor?

           A coherently integrated and iteratively sequenced reform package comprising story,
theory, evidence, and practice is needed to inform supportable strategies for designing,
implementing, and assessing social development projects, especially those that entail trying to
improve the quality of justice systems for the poor. One of the main problems with the justice
sector reform movement, however, is its focus on a predetermined ideal that is articulated in
terms of its form, rather than being based on an understanding of the socio-economic and
political functions that rule-based systems play in any given society (Pritchett and Woolcock
2004); these institutional myths surrounding the ‘rule of law’ model are embodied in justice
reform programs. This approach reflects a theoretical model that starts with a perfect ‘rule of
law’ system, from which dysfunctional systems have deviated.48

           Rajan (2004) explores the reasons why such theoretical models of perfect systems are
considered useful starting points in his discussion of orthodox economic models. He argues that


47
     Evans (1998)
48
     This argument draws on Raghuram Rajan’s (2004) critique of orthodox economic models.

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they are considered reasonable approximations of reality, which give practitioners a useful
common point of departure and a shared language and understanding within particular
disciplinary circles. Further, such models give us a basis for empirical work, giving us
categories, theorems and proofs that can be measured or tested. Rajan, however, argues that the
complete market model used by many economists is too far distanced from reality to be useful.49
He argues that relying on orthodox economic models makes solutions to development problems
seem far simpler than they actually are; particular problems are addressed as if they occur in a
world where everything else works. Ultimately, he argues that perhaps we would be better served
by starting with an assumption that nothing works:

                    (For example) Instead of analyzing the effects of introducing
                    contracts in a world where everything else works, a better
                    approach might be to investigate the effects of introducing a
                    legitimate contract in a world where nothing works. Our analysis
                    would be better informed by assuming anarchy as a starting point
                    rather than a pristine world of complete contracts.50


           Starting with a model of a perfect ‘rule of law’ system, from which countries deviate, has
shaped current approaches to Justice Sector Reform; it helps support a technocratic approach to
reform, whereby technical experts try to replicate or import the laws and legal institutions of
developed countries in the developing context. As with the approaches to economic reforms that
Rajan describes, it makes solutions seem easier than they are and leads to compartmentalized
reforms that assume, and in fact often require, that the broader system works. The problem is that
not only does the broader system not work in many contexts; it often does not even exist.

           This is not to say that the actual justice sector is not a central part of the overall
institutional framework of a given society, or to deny that it plays an important role in designing,
maintaining, and enforcing the different rights and responsibilities necessary for other
institutions to effectively function; it clearly is and does. However, the justice sector in turn
relies on powerful normative and political institutions for its legitimacy, authority and
accountability.



49
     Rajan (2004: 56)
50
     Id., 57.

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           Rather than starting from a ‘rule of law’ model from which deviations can be measured
and targeted, it may be more helpful—and realistic—to ‘assume anarchy’.51 While political,
economic and social rights for disadvantaged people may be introduced with legal reforms, real
change is unlikely to occur without attention to broader social dynamics and the effects of
reforms on these dynamics. Further, reform processes themselves may be captured if attention is
not given to building a civic constituency that can demand a certain level of equity, performance
and accountability.

           Intra-country differences in legal systems, much like cultural diversity, are part of most
societies and do not always result in conflict. When a clear and enforceable system of ‘meta-
rules’—defined as an overarching system of rules and processes designed to mediate
differences52—is in place, it can serve as a guiding principle by which parties can agree to
disagree in a peaceful manner. In some developing countries the formal legal system is not
compatible with the law practiced at the village level. In cases where the meta-rules do not
cohere with local level traditional laws, it becomes difficult to avert negative outcomes. This
problem of incompatibility is not only prevalent between the formal and informal system but also
between different customary systems operating in a shared geographic space, a process only
intensified by contemporary ‘globalization’ and associated factors (transport, communications)
lowering the barriers to both intra- and inter- group interaction.

           When different systems of rules and regulations are sufficiently compatible and operate
within the same set of accepted ‘meta rules’ (generally provided by the formal system), this
multiplicity of rules creates few problems in practice. Engaging with the multiplicity of systems
operating in a particular context is an extremely difficult task given the ever-changing nature of
such systems and their complexity. Far from being static and/or shrouded in “the mists of
antiquity”53, customary systems are shaped by their socio-historical context and the normative
responses of a particular community to that context. The central difficulty for both state and local
level systems is dealing with their potential and/or actual incompatibilities. Working with local



51
     Rajan (2004)
52
     The concept of ‘meta-rules’ comes from Barron, Smith and Woolcock (2004).
53
  Max Gluckman’s phrase is drawn from his edited volume Ideas and Procedures in African Customary Law
(1969), published during a period of intense legal reform in the countries under study in this paper.

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level institutions to create change has proved to be a more viable way of establishing and
supporting the constituency needed to make reforms sustainable. Further, without engaging with
this constituency, local level customary institutions continue to undermine the effectiveness of
state level reforms.

           The Justice for the Poor program in Indonesia, and a parallel research project on
understanding local conflict trajectories, provides us with an alternative model for studying
informal dispute resolution at the community level, and with it, a fruitful strategy for assessing
interactions between customary and state legal systems.54 The research project was set up in
forty-one villages across four districts within two very distinct provinces in Indonesia (East Java
and East Nusa Tenggara) as a means to help us understand the trajectories that local-level
conflict follow. Part of the objective of the study was to evaluate the evolution of conflict by
tracking its pathway from beginning to end. The approach taken mixes qualitative (i.e., hundreds
of interviews of village leaders and stakeholders) and quantitative methods (i.e., key informant
surveys, and use of national surveys to inform a rigorous sampling framework) in order to
discern information and/or perceptions at multiple units of analysis. Local village
characteristics55 obtained mostly via surveys, were included in the analysis. The methods applied
were also purposely designed to address a complementary concern, namely, whether existing
development efforts in place (i.e., the Kecamatan Development Project) had had an impact on
the way conflicts were managed.

           The approach of using two environments with some shared socio-economic
characteristics allowed for comparability between the trajectories taken when dealing with
conflict. Studying the pathway of disputes at the lowest geographic unit—sub-district or
village—and applying theoretical and empirically based methods generated some clear results.
Three analytical realms in understanding patterns and trajectories of conflict emerged from the
project.56 First, the ‘rules of the game’ (laws and norms by which disputants and other
participants interact); second, the ‘dynamics of difference’ (norms and politics affecting the


54
   The information presented regarding the Indonesia case is based on Barron, Smith and Woolcock (2004) and
Barron, Diprose, Madden, Smith, and Woolcock (2004).
55
   These factors could range from economic, psychological, social, political, institutional, cultural, and many other
potentially influential characteristics specific to the village where the case takes place.
56
     See Barron, Smith, and Woolcock (2004).


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groups engaged); and third, the ‘efficacy of intermediaries’ (the willingness, capacity and
legitimacy of third-party actors and institutions). Perhaps the most significant contribution of the
project is the possibility of replication. Conflict is a global phenomenon and studies like this one
help dissect the dynamics of it, provide operational value and set the ground-work for future
complementary research that can guide legal reform efforts on the basis of context-specific
knowledge.

          One consequence of this research and companion work on ‘justice for the poor’ in
Indonesia has been the design of a new project—Support to Poor and Disadvantaged Areas
(SPADA), intended for regions experiencing conflict—which will include a specific component
on access to justice (called SPADA+). Research conducted as part of the ‘Breaking Legal
Inequality Traps’ Study (BLITS) will endeavour to assess, in a rigorous empirical manner,
whether and how such interventions work. A similar initiative has been underway in Cambodia
for over a year, where primary research on collective disputes (around land and labour) between
villagers and the state is being conducted in preparation for a new IDA grant in 2007. Most
recently, funding has been secured for companion studies in Africa, in countries with different
colonial legal legacies: Sierra Leone (British), Mozambique (Portuguese), Rwanda (French), and
Ethiopia (‘neutral’). The overarching objective of this research will be to assess how prevailing
customary legal systems interact with the state, and to explore how projects might be designed to
better articulate them.

8. Conclusions

          The central call of this paper is for a focus on issues at the intersection of social
development, ‘policy’, and judicial reform that we believe have been seriously neglected, and
that have undermined both the intellectual stature of social development and the capacity of
practitioners to implement legitimate and sustainable legal reforms in low-income countries.
These issues can be neatly summarized as: the missing law in policy, the missing rules in law,
and the missing normative/cultural understandings in rules. That is, discussions of ‘policy’
routinely overlook the fact that such instruments who content and enforceability are largely
instruments grounded in law; discussions of law tend to focus exclusively on formal
manifestations and codifications of rules rather than the much broader array of rules systems of
which ‘the law’ is a (small) part; and discussions of rules too often ignore the fact that they are


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Arusha Conference,“New Frontiers of Social Policy” – December 12-15, 2005                     C. Sage et al., conference paper



social constructions—cultural and normative understandings that establish and legitimize
appropriate behaviour.

          Whilst serious critique is important for making sense of past failures and creating space
for new approaches, we would be remiss if we did not also seek to enter that space with a
coherent, supportable, and implementable alternative. The alternative we propose is one self-
consciously (and, we hope, confidently) grounded in a social theory of local level
transformations and the modernization of social relations, combined with an anthropological
sensibility with respect to the social construction of rules systems, both formal and informal.
This approach has informed, is informing, and will continue to inform a new generation of in-
depth mixed methods (qualitative and quantitative) empirical studies in East Asia and Africa,
with the goal of generating a rigorous and context-specific evidence base on which to better
understand (a) prevailing local rules (and dispute resolution) systems, (b) the nature and extent of
their articulation with the state, and (c) the efficacy of local interventions designed to improve
the coherence, accessibility, legitimacy, and accountability of both.

          ‘Development’, as the very word implies, is a very deliberate attempt at initiating and/or
facilitating modernization. As such, and because rules (formal and informal) and social relations
underpin the basis of exchange in even the most ‘advanced’ economies, attempts at
‘modernizing’ the legal system in low income countries must necessarily be undertaken as part
of a broader strategy that explicitly recognizes that the judiciary is but one (very) small part of
the broader set of decision-making, priority-setting, and dispute resolution mechanisms in
society. Put most starkly, judicial reform is bound to fail if it focuses only on the formal, codified
aspects of those mechanisms, ignoring (by design or default) the broader system of rules which
gives them legitimacy. Finally, ‘modernizing’ rules systems is a dangerous and messy business,
not least because it entails shifting a prevailing equilibrium which certain powerful groups quite
enjoy, and are unlikely to relinquish without a struggle. As such, and because no ‘development
professional’ (from any disciplinary background) is trained in how to do any of this57, project
designers and researchers alike should therefore undertake such ventures iteratively, with their
own feedback and accountability mechanisms, and, not least, with suitable circumspection.


57
   Development professionals have, at best, a driver’s license, their training primarily preparing them to ‘operate’ (or
at most tinker with) an existing, well-functioning system rather than design one from scratch.


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