51845




                  J&D
                  justice&development
                  working paper series
                               7/2009




Taking the Rules of the Game Seriously:
Mainstreaming Justice in Development
 The World Bank's Justice for the Poor
               Program


 Caroline Sage, Nicholas Menzies, Michael Woolcock




                     Legal Vice Presidency
                     The World Bank
About Justice and Development
The Justice and Development Working Paper Series serves as a platform for new and innovative
thinking on justice and development, featuring work from World Bank staff and external authors.
It is a knowledge product of the World Bank's Justice Reform Practice Group, which generates
knowledge and provides advice and assistance to Bank staff and Bank client countries on
building and improving state and non-state justice system institutions and mechanisms. Justice
and Development disseminates the findings of works in progress to facilitate a more rapid
exchange of ideas about development issues and justice reform.


Editorial Policy
Justice and Development seeks original research papers on law, justice and development. We
welcome publications from both Bank colleagues and external contributors. Manuscripts must be
in English, and no longer than 25-30 pages. They can be submitted to the Editorial Office at any
time of the year. All submitted papers will be carefully reviewed by the Editorial Board. Criteria
for selection include rigorous scholarship and innovative approaches related to law/justice and
development. If you are interested in submitting a paper, please contact the Editorial Office for
detailed information and editorial guidelines.

Justice Reform Practice Group
The Legal Vice Presidency, The World Bank
1818 H Street NW
Washington, DC 20433
USA
Tel +1 202 458 2950
Email: mayano@worldbank.org


Editorial Board
World Bank Justice Reform Practice Group
Christina Biebesheimer, Chief Legal Counsel
Heike Gramckow, Senior Legal Counsel
Caroline Mary Sage, Legal Counsel
Klaus Decker, Legal Counsel
Mekonnen Firew Ayano, Legal Associate
Susanne Skoruppa, Legal Consultant

World Bank Poverty Reduction Group
Nora Dudwick, Senior Social Scientist
                                              Taking the Rules of the Game Seriously:

                                               Mainstreaming Justice in Development

                                      The World Bank's Justice for the Poor Program

                                   Caroline Sage, Nicholas Menzies, and Michael Woolcock1




                                                               Abstract
This paper explains the ideas and approaches that underpin the World Bank's Justice for the Poor
(J4P) program. J4P is an approach to legal empowerment that focuses on mainstreaming
sociolegal concerns into development processes, in sectors ranging from community-driven
development and mining technical assistance to labor-rights advocacy and classic judicial
reform. It has developed out of a perspective that legal and regulatory frameworks and related
justice concerns cannot be conceived of in terms of a "sector" or a specific set of institutions, but
are integral to all development processes. Further, while there is broad agreement that justice
reform and building an equitable justice sector is central to good governance and sustainable
development, there is limited understanding of how equitable justice systems emerge and how
such processes can be facilitated by external actors. J4P addresses these knowledge gaps with
intensive research aimed at understanding the ways in which development processes shape and
are shaped by local context, and in particular, how the poor engage with-- and/or are excluded
from--the multiple rule systems ("legal pluralism") governing their everyday lives. Through
three case studies of the program's work, this paper illustrates how understanding the various
roles of law in society provides an innovative means of analyzing and responding to particular
development problems. The cases also demonstrate the principles that underpin J4P:
development is inherently conflict-ridden; institutional reform should be seen as an iterative and
thus "interim" process; building local research capacity is critical to establishing an empirically
based and context-driven reform process; integrating diverse sources of empirical evidence is
needed to deeply engage in local contexts; and rule systems are ubiquitous in all areas of
development, not just the "legal sector."


                                                            
1
  Caroline Sage is Counsel in the Justice Sector Reform Unit within the Legal Vice Presidency at the World Bank, Washington
DC, USA. Nicholas Menzies is a consultant with the Justice Sector Reform Unit. Michael Woolcock is Senior Social Scientist in
the World Bank's Development Research Group (currently on external service leave as Professor of Social Science and
Development Policy at the University of Manchester's Brooks World Poverty Institute).The views expressed in this paper are
those of the authors alone, and should not be attributed to the World Bank, its executive directors, or the countries they represent.
We thank Daniel Adler and our many other colleagues in the J4P program for numerous discussions on these issues. Address for
correspondence: 1818 H Street NW, Washington DC, 20433, USA. Email: csage@worldbank.org; nmenzies@worldbank.org;
and mwoolcock@worldbank.org.
Introduction


This paper sets out the ideas and approaches that underpin the World Bank's Justice for the Poor
(J4P) program and provides some examples of how a particular approach to legal empowerment
is being used to support more equitable and effective reform processes, both within formal justice
institutions and across other development sectors. As such, J4P is best understood as an approach
to justice and development that focuses on mainstreaming sociolegal concerns into development
processes, with an emphasis on understanding and improving the processes by which
marginalized and excluded populations seek justice and claim their rights.1 The program is based
on a number of key principles (outlined below) and a particular theory of social change.

J4P has developed out of a perspective that legal and regulatory frameworks are fundamental to
all development processes. Development is ultimately about developing and distributing rights,
resources, and responsibilities, and justice systems play a key role in shaping this distribution of
power--and vice versa. This concern is hardly new. It is now widely accepted that effective and
equitable justice systems are central to good governance and sustainable development.2 Despite
this emerging consensus, however, there is limited understanding of how equitable justice
systems materialize, and thus how (and by whom) they can be promoted. A major reason for this
limited understanding, we contend, is the fact that in any given context, state law is but one of a
number of rules systems in play, with some of the systems offering diametrically different
understandings of problems, solutions, and jurisdictions. The presence of more than one legal
order in a given context is often called "legal pluralism."3 In many developing countries, nonstate
legal orders (such as customary law and religious law) have a significant influence on the way in
which societies are governed, order is maintained, disputes are resolved, and development is
experienced. Moreover, all rule systems rest on underlying social norms even as they are
embedded within, and serve to mediate, multiple layers and forms of state law (for example,
criminal and commercial law at the local and the national levels). An underlying premise of the
J4P program is that development practice--both classic justice-sector work but, more
importantly, development programs more generally--could benefit from a deeper analysis and
understanding of the role of law in society and the ways in which justice institutions develop.

This paper provides an overview of J4P's central ideas and approach by: (i) looking at the
common ways justice is currently conceived in development; (ii) outlining the approach the
program has developed in response; (iii) highlighting three cases--from Kenya, Cambodia, and

1
  J4P is led from the Justice Sector Reform Unit of the World Bank's Legal Vice Presidency and
brings together a multidisciplinary team from across the World Bank. J4P has team members
based in-country across East Asia and the Pacific, and in Africa. Further details about the
program can be found at www.worldbank.org/justiceforthepoor.
2
  See, for example: World Bank, World Development Report 2006: Equity and Development
(Washington, DC: World Bank, 2005).
3
  The literature, from a diverse range of disciplinary perspectives, is littered with debate about
the meaning and definition of the term "legal pluralism." See, for example, John Griffiths,
"What is Legal Pluralism?" Journal of Legal Pluralism and Unofficial Law 24, no.1 (1986): 1;
Sally E. Merry, "Legal Pluralism," Law and Society Review 22, no.5 (1988): 869; and Franz
von Benda-Beckmann, "Who's Afraid of Legal Pluralism?" Journal of Legal Pluralism and
Unofficial Law 47 (2002): 37.




                                                                                                  1
Sierra Leone--that exemplify some key characteristics of J4P's work; (iv) offering some
concepts to guide the future conduct of justice and legal empowerment work; and (v) concluding
with some continuing challenges.


1. JUSTICE IN DEVELOPMENT: CLASSIC AND ALTERNATIVE APPROACHES


The ways in which justice has been both thought about and practiced in development raise a
number of questions. These questions can be thought about within two interwoven strands: the
way justice is conceived of in classic "justice-sector reform" work, and the frequent failure of
other types of development programs to take seriously the multiplicity of rules systems and
justice issues.

1.1 Classic Justice Sector Reform Work

There has been a growing consensus among development practitioners and scholars about the
importance of legal and regulatory systems for development.4 These systems are deemed
important because they are the basis of property rights, which in turn are vital for encouraging
investment and promoting economic growth, and also because they are central to public
administration, which in turn is the basis of public-revenue generation and service delivery. More
recently, there has been an increasing recognition that judicial systems shape the rules and
structures that influence the opportunities available to different segments of the population. With
all this has come an increase in scholarly and programmatic attention to justice issues. However,
these initiatives have tended to focus on legal and judicial institutions, invariably state-based and
most often at the national level. This approach has numerous shortcomings, with some arguing
that "examples of significant, positive and sustained impacts are few."5 At the very least, it would
seem that there is a lack of knowledge6 about what is trying to be achieved, what "success"
means, and what does and does not work.

Various explanations have been offered for the inability of classic approaches to declare clear
successes more frequently, but for present purposes three can be identified:

1.1.1 Missing theory
Much justice-sector work has proceeded without a clear theoretical basis of social and
institutional change. While the importance of the rule of law is widely accepted and commonly
invoked, there remains little understanding of how to build systems that embody its attributes
(which include fair laws that are effectively enforced and that bind even the state itself). Legal
systems are inherently political, involving legitimate negotiations between different institutions




4
  See for example, the history outlined in C. Sage and M. Woolcock, "Breaking Legal
Inequality Traps: New Approaches to Building Justice Systems for the Poor in Developing
Countries," in Inclusive States: Social Policy and Structural Inequalities, ed. A. Dani and A. de
Haan (Washington, DC: World Bank, 2008), 3. The United Nations' recent Commission on
Legal Empowerment of the Poor http://www.undp.org/legalempowerment/ is another
manifestation of this consensus on the importance of the issue (if not what should be done in
response to it).
5
  Sage and Woolcock, "Breaking Legal Inequality Traps," 4.
6
  Thomas Carothers, ed., Promoting the Rule of Law Abroad: In Search of Knowledge
(Washington, DC: Carnegie Endowment for International Peace, 2006), 15.
                                                                                                   2
and interests.7 Yet development agencies have tended to frame these issues as predominantly
technical concerns. Accordingly, the policy response has therefore favored the input of technical
solutions--expert missions, the sharing of best practices, training programs--but the outcomes
regularly fail to meet expectations. Western legal systems are held up as models to aspire to, but
little historical interrogation is undertaken of how these systems developed and the underlying
bargains they represent.8

1.1.2 Missing context
In implicitly or explicitly importing assumptions about alleged best practices from rich country
systems, justice-oriented development work often fails to properly understand local contexts. It
can be particularly blind to the limits of the state and the continuing strength of nonstate
governance systems. Development practice in all sectors focuses predominantly on the
institutions of the state and justice work is no exception. The systems that are held up as models
are invariably those with a well-resourced and functioning state apparatus. However, in many
countries where the "rule of law" is said to be most needed, the state is weak, has limited reach
and legitimacy, and may be many years from being able to function and provide the services of a
modern bureaucratic ideal. Justice-reform initiatives have tended to work with justice institutions
as if they existed within broad and broadly functioning systems of governance. Even those
justice-reform efforts that take a sector-wide approach--not focusing on single institutions in
isolation, but instead addressing the array of institutions said to constitute the "justice sector"
(judiciaries, ministries of justice, police, prosecutorial services, legal aid, etc.)--can be
compromised by weaknesses in the other arms of the state governance apparatus necessary for
functioning justice institutions.

Government weakness is often attended (and in some cases reinforced) by the continuing strength
and importance of other rule systems in ordering society. In such instances, state law and legal
institutions are only one of a number of intersecting rules systems used to govern and resolve
disputes. These nonstate systems, such as those guided by customary, religious, or aid-project
rules, can reflect very diverse underlying norms and have different sources of legitimacy. State
law will have limited power where the institutions of the state have limited reach, and the
principles under which such institutions operate have limited meaning and legitimacy for
everyday citizens. In these contexts, in short, the "rule of (state) law" is only a small subset of the
overall "rules of the game," and as such, an exclusive concentration on state law by development
practitioners is unlikely to yield the results hoped for.

1.1.3 Missing justice
In focusing on the institutions of the state, classic justice-sector reform often fails to promote
justice for broad cross-sections of society. The content and implementation of prevailing state
systems often reflect the rules and interests of the wealthy, elite, urban, and educated, who can
capture and/or disproportionately influence state institutions. As such, the processes and
principles that underpin state legal institutions are often markedly different from those of the

7
  For an explication of the roots of both instrumental and noninstrumental views of law, see,
among others, Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (New
York: Cambridge University Press, 2006).
8
  In this sense, the legal sector is hardly alone, as similar approaches to institutional
replication are commonplace in finance, health, and education. See James C. Scott, Seeing
Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven,
CT: Yale University Press,1998); L. Pritchett and M. Woolcock, "Solutions when the Solution is
the Problem: Arraying the Disarray in Development," World Development 32, no. 2 (2004):
191.

                                                                                                     3
wider population and are therefore not seen as just or legitimate, even in those circumstances
where the weak state apparatus manages to serve more than a small minority of the population.

1.2 The Missing Law in Development

Properly functioning legal and judicial institutions are clearly important and the above
shortcomings should be explored to see whether justice-sector work can be made more effective.
In addition, however, concepts of law, regulation, rules systems, and justice need to be infused
more broadly into development programming. Put more forcefully, "justice" is best understood
not as a stand-alone sector in development--at least not in the same way that agriculture, energy,
and transport are sectors--but rather, as a sector that infuses most aspects of almost every
development activity. Every policy in every development sector, for example, is ultimately
actionable and enforceable to the extent that it is articulated in and/or supported by law, and all
behavior--whether by individuals, groups, or organizations--is a function of a complex web of
rules systems ranging from social norms to national constitutions.

Beyond just correcting failures in the conception and practice of justice-sector reform work,
development needs to address the larger issue that most development processes fail to even
consider rules systems,9 despite the routine invocation of popular expressions endorsing the
importance of "understanding the rules of the game." Rules underpin all aspects of everyday life
and are the key to understanding how conflicts form, escalate, or get resolved. Yet, development,
by design, puts all these rules systems in flux; it reorders society and alters the distribution of
rights, responsibilities, and resources. Moreover, it alters social relations, especially those
pertaining to gender, occupation, and the relative political strength of particular social groups. As
such, it is inherently accompanied by conflict. By establishing legitimate spaces and processes for
negotiating competing interests, aspirations, and interpretations, development actors can
potentially become part of the solution to such conflicts.

A detailed consideration of rule systems, in all their various manifestations, is therefore critical to
understanding development processes, and the design, implementation, and assessment of
policies or projects enacted in response to them. A basic starting point should be an understanding
that plural legal orders exist in most contexts, and that the nature and extent of this pluralism is
often "invisible" to outsiders--that is, these diverse forms of legal pluralism are often
"illegible"10 to the dominant modalities of research and operations that characterize most (large)
development agencies.

Rules systems, even in their most model forms, are always evolving. In fact, arguably the best
rule of law governments are those in which the rules systems are suitably malleable to channel the
constantly competing interests of a dynamic society in a peaceful, equitable, and orderly
manner.11 As a result, law and justice reform should not be seen as forging some perfect rule or
institutional form; rather, it is more accurately conceived of as a process of encouraging more
equitable, evolving processes whereby different interests and aspirations can be reconciled. Rule
systems in their various forms--sometimes overlapping, sometimes competing, always

9
  The term "rules systems" is used here to emphasize that more than just state laws and
regulations (and their associated institutions and processes) are important in governing
societies. Social norms and religious precepts, for example, can exert a powerful influence on
behavior and what is considered "just."
10
   Scott, Seeing Like a State.
11
   D. Adler, C. Sage, and M. Woolcock, "Interim Institutions and the Development Process:
Opening Spaces for Reform in Cambodia and Indonesia," Brooks World Poverty Institute
Working Paper No. 86 (Brooks World Poverty Institute: University of Manchester, 2009).

                                                                                                     4
evolving-- have a number of functions in society, and as such can have a role in both
undermining and enhancing development processes.

J4P's response to the shortcomings associated with these two strands of approaches can best be
seen by examining a number of cases highlighting work that has been undertaken. From this, J4P
suggests a different way of thinking about governance, justice reform, and legal empowerment.
Justice reform needs to be thought of as one part of the governance- and state-building agenda,
but importantly one that takes seriously the nonstate rules of the game. Moreover, as Briggs
rightfully stresses, our analysis of rules systems should point beyond the narrower (if more
technical) approaches of game theory--"how the players play particular games"--to "why those
games, and not others, arise in the first place, why some players, and not others, get to play, how
rules of engagement shift ... and how players acquire the resources ­ both tangible and intangible
­ with which to play."12 As a result, legal empowerment is best approached not by a singular
justice-sectoral approach, but by assessing and improving the ways in which justice is
experienced through the whole range of development programming.


2. EXPLORING RULES SYSTEMS: THREE J4P CASE STUDIES


When looking at justice reform, either in the classic sense or as part of development
interventions, it is critical to analyze the role of law thoroughly, including at multiple levels.
Rules systems, of which "the law" (i.e., state law) is but one constituent element, operate as
mechanisms to achieve certain ends. The following cases approach development problems by
asking what the role of law is and could be in each circumstance. Using law in this way provides
an innovative means of analyzing concrete development problems and also suggests new ways of
addressing broader development challenges.


2.1 Mechanisms for Managing Freedom, Solidarity and Order: Peace and Development
Committees in Northern Kenya13

2.1.1 Overview
In northern Kenya, peace and development committees ("peace committees") are an innovative
mechanism that have been developed to create spaces for resolving some of the issues arising in a
context of legal pluralism. They consciously draw upon the principles and the legitimacy of
multiple local rules systems, while also attracting authority from, and respecting some tenets of,
state law. In doing so, the peace committees are attempting to fulfill a classic role of law, namely,
a mechanism for managing freedom, solidarity, and order in society. They represent a legitimate
forum in which social compacts can be negotiated and renegotiated. While not without problems,
they are particularly noteworthy because they seek to accommodate the various claims and
jurisdictions that inhere in multiple, contesting rules systems.



12
   Xavier de Souza Briggs, Democracy as Problem Solving: Civic Capacity in Communities
Across the Globe (Cambridge, MA: MIT Press, 2008), 22.
13
   The following case study is built on research laid out in the J4P research reports: Tania
Chopra, "Reconciling Society and the Judiciary in Northern Kenya" (2008a); Tania Chopra,
"Building Informal Justice in Northern Kenya" (2008b); B. Ayuko and T. Chopra, "The Illusion
of Inclusion: Women's Access to Rights in Northern Kenya" (2008). Available at
www.worldbank.org/justiceforthepoor.
                                                                                                   5
2.1.2 Context
The arid lands of northern Kenya are inhabited predominantly by pastoralist communities. The
region, one of the poorest in Kenya, is characterized by frequent droughts, as well as vast and
often inaccessible terrain. Conflicts center largely on access to scarce natural resources, such as
grazing land and water supplies, and loss of livestock during droughts that can lead to castle
rustling. A history of conflict and violence has more recently been accelerated by access to
firearms, many acquired from adjacent conflict-affected countries. The sources and incidence of
conflict are laid out across a number of ethnic groups and their associated sociocultural systems.
These systems vary and come into contact in a number of ways, such as through the movement of
populations in search of grazing land, as well as from an influx of refugees (from Somalia, for
example).

The people of these arid lands largely live outside the scope of the services, including justice
services, provided by the state. Key state-justice institutions, such as the police and the courts, are
rarely accessed. Courts are remotely located, and travel is unreliable and costly; even if they can
be reached, the time and expense needed to pursue a case makes it prohibitive. Lawyers able to
assist parties in navigating the process are rare.14 Police tend to be located closer to large
population centers, and often lack resources to be able to investigate incidents and apprehend
suspects.15

Increasing access to state justice services by, for example, instituting mobile courts, supporting
legal aid, and addressing fees, will not necessarily ensure just outcomes. As important as
logistical constraints, the conceptual gulf between residents and the state legal regime makes the
police and courts unattractive to most communities. Prevailing ideas about what constitutes a
wrong and who is responsible for an action, the processes taken to resolve conflict, and the
determination of appropriate outcomes can all markedly differ between communities and the
state. Understandings of seemingly familiar concepts of "individuality" and "group," for example,
vary widely, and there are many ideas of where the balance should lie between freedom and
solidarity.

The application of the "rule of law" (as determined by the state), therefore, is not always a benign
good, as normative differences in what is considered a fair and appropriate outcome in one
community lead others to view that outcome as unjust . Even when state institutions are not
being consciously captured to further certain interests or repress others, the mere application of
state laws leads to injustice. By applying the formal law, state agents run the risk of alienating
communities and failing to build a reputation of being "just." Police enforce sanctions against
crimes such as gambling, possession of firearms, and the brewing of alcohol, which do not
necessarily constitute offenses in pastoralist sociocultural systems. Courts try individual
offenders, but in many pastoralist societies, the larger kin group may have responsibility. The
determination of criminal responsibility in court, therefore, has little impact on solving conflict,
which is perceived to be between groups. A kin group may feel entitled to take redress if certain

14
   A system of Kadhi courts attempts to address some of the issues of distance and cost.
Kadhis are often colocated with magistrates in areas with Muslim populations. They are
governed by a national statute and have jurisdiction over civil cases, applying Sharia law.
Some Kadhi courts have appointed imams or other scholars in remote areas as a grievance,
advice, and referral mechanism.
15
   It is reported that only 7 percent of the national population report cases to the police. While
no relevant data is available for the arid lands, the proportion is very likely lower. See the
National Integrated Household Baseline Survey Report (2006) commissioned by the
Governance, Justice, Law and Order Sector Reform Program, in Tania Chopra, "Reconciling
Society and the Judiciary in Northern Kenya" (Washington, DC: World Bank, 2008), 5.
                                                                                                     6
acts are taken against one of its members, but in criminal matters, the state courts focus their
orders only on the individual offender. The payment of compensation between groups is a
common means of reestablishing peace, thereby reinforcing the social contract both within and
between groups. For these reasons, it is not uncommon for kin groups to seek to have matters
withdrawn from the court to be dealt with in communities. When such applications are not
granted, the parties can effectively frustrate the proceedings by refusing to appear as
complainants and witnesses.

Historically, intracommunal conflicts have been managed by community chiefs and elders. Given
the gulf between the community and the state in all other matters of everyday life, this remains
largely the case today. However, state and nonstate spheres are not completely distinct; tribal
chiefs, for example, have become employees of the provincial administration and as such, one of
their functions is to maintain law and order. Furthermore, communities do approach the police to
try and influence the outcome of disputes undergoing more traditional resolution processes.
Individual magistrates also try to take processes outside the court into account, but are given little
official guidance or professional support. The resolution of matters by chiefs and elders in
communities is not without problems. The more powerful members of communities can use the
cloak of tradition to solidify their position at the expense of the poorest and most marginalized.
Intercommunal disputes have often proven more challenging for chiefs to resolve, as they involve
more than one set of rules systems. Thus, not only are power imbalances and competing interests
at play, but competing and sometimes overlapping rules systems further complicate the justice
equation.

2.1.3 Legal Empowerment Initiative: Peace Committees
Peace committees are an innovative attempt to address both the challenges of conflicts that arise
between communities, as well as the divide between communities and the state. The committees
grew out of efforts in the 1990s to bring an end to particularly entrenched conflicts between
specific arid lands communities. Peace committees are formed by communities at the district
level, with the support of nongovernmental organizations and donors, and with the participation
of local authorities. Given the heterogeneity of most districts, any given committee usually
includes more than one ethnic group. Their popularity is evident since they are now found across
the region. Each peace committee typically comprises a broad range of members who are locally
perceived as relevant for conflict resolution. In some instances, the process of constituting peace
and development committees has led to the drafting of detailed declarations, which, in turn, act as
a local system of regulation for the district. Declarations commonly include development
objectives, the nature of issues in dispute, ground rules and procedures to be followed in cases of
conflict, and the punishments to be applied. For example, one declaration spells out rules to solve
problems associated with cattle rustling, the use of pasture and water, and the trafficking of
firearms.

Some declarations refer to the state law and outline matters that should be referred to the police
and the courts. The provisions of the declarations are not always wholly consistent with state law
or principles of equality, however. For instance, one declaration originally stated that the death of
a man should be compensated by 100 cows or camels, while the death of a woman is valued at
only 50 cows or camels.16 Another provision of a declaration reintroduces a customary system of
permission from respective elders and chiefs to enter certain grazing lands that the state regards
as common property. In one circumstance, communities moved into a neighboring district to
graze their cattle in breach of the provision; the District Commissioner who removed them in

16
     It has since been amended to add that the offender must be handed over to the police.
                                                                                                    7
accordance with the declaration has been taken to court by the cattle grazers (where the case
remains pending).

The popularity and success of the declarations is said to arise from their recognition of local
concepts and sociopolitical structures, as well as their ability to define ground rules between
different local systems. The success of the peace and development committees, together with the
associated declarations, has led to their gaining support from the Office of the President and the
subsequent drafting of a national framework. The draft recognizes some weakness in state law
and processes, and seeks to promote increased "traditional conflict handling."

To be sure, peace committees and declarations are not without problems and limitations. The
selection of committee members by communities can highlight disagreements over representation
and competence. Rifts in communities arise over whether elders, the educated, or the
democratically elected are the most legitimate and able. Once elected, committee members can
act as gatekeepers with access to information and power. Complaints have been made about both
the inadequate participation of women in the process and the unfair treatment that they receive in
some of the declarations. Peace committees and declarations do not neatly solve the interaction
between state and nonstate systems, but they at least provide a coherent, legitimate, and
accessible step towards a system that meets communities' governance needs.

J4P formed a partnership with an established legal aid and advocacy organization, the Legal
Resources Foundation Trust (LRF), to undertake work in Kenya. Building on the program's
ethnographic research experience, J4P was able to support LRF in the development of methods to
understand and record local governance and dispute mechanisms. In particular, J4P was able to
assist in the capacity to make such research relevant to broader policy reform processes. The
outcomes of the work are being used to inform the development of national policies with respect
to governance and dispute resolution in local communities; in particular, LRF has provided
advice to the Kenya National Commission on Human Rights. J4P also worked closely with the
World Bank's Arid Lands Resource Management Project, one component of which was
providing support to the peace committees, and is furthermore informing the design of a more
classic justice-sector support program.

2.1.4 Conclusions
When developed over time, forged in legislatures, and applied by the courts, state law can act as a
powerful expression of a society's shared values and reflect a social compact between citizens
and the state. In many contexts, nonstate law plays a similar role at a more local level. This role
of law is often challenged in circumstances of legal pluralism, where there may be a range of very
different norms regarding the legitimate spaces in which to forge an agreement--and the
processes to be followed to reach it. When people from disparate rule systems interact, there is a
need to talk across the systems. State law can sometimes play this role. In circumstances where
the state has little legitimacy or reach, however, its effectiveness is limited, and can in fact
increase perceptions of injustice.

Working through peace committees represents one potential entry point in northern Kenya for
responding to this challenge, but doing so requires detailed, context-specific knowledge of the
prevailing ways in which state and nonstate justice systems are interacting. J4P has been able to
actively contribute to the building of this knowledge base. The peace committees of northern
Kenya are a valuable organizational innovation since they aim to reduce conflict by creating a
mechanism that incorporates the disparate norms of multiple local rule systems and state systems.
They highlight the fact that state and nonstate are not separate spheres, but are fluid and dynamic

                                                                                                 8
and continue to influence each other. In this context, the peace committees are one constructive
attempt to try to harness the power of all available governance and dispute-resolution
mechanisms in a joint quest for more equitable processes of dispute resolution.


2.2 Mechanisms for Aligning Global, National, and Local: the Cambodian Arbitration
Council

2.2.1 Overview
In societies with a strong executive, neopatrimonial power relations, and dysfunctional courts, it
can be difficult to find equitable spaces for legal empowerment. A consideration of labor relations
in Cambodia demonstrates how laws can be used to align global, national, and local interests, and
be harnessed to allow the poor to claim their rights, even absent hard enforcement mechanisms.
The case also illustrates the benefits of creating iterative, interim institutions for legal
empowerment in contexts where the prevailing legal and administrative structures are averse to
recognizing the rights of the poor. The creation of more equitable spaces for dispute resolution
can be of benefit as a pragmatic precursor to ensuring detailed and enforceable rights in law.

2.2.2 Context
Since the 1993 adoption of a liberal democratic constitutional framework and the eventual end of
civil conflict, debate has been ongoing regarding the relative merits of Cambodia's progress, with
improvements in economic and some social indicators pitted against the continuation of an
illiberal governance regime. Strong economic growth in recent years has seen marked increases in
the gross domestic product (GDP) per capita, significant reductions in poverty, and improvements
in key social indicators, but Cambodia remains one of the poorest countries in Asia and inequality
has risen rapidly. Increases in inequity are commonly attributed to elite capture, corruption, and
entrenched patronage systems. The executive and, more particularly, the ruling political party
maintain a firm grip over the institutions of state--including the judiciary--from national to local
levels. The court system remains compromised as a forum in which to resolve disputes and
exercise rights, as judges are subject to direction from the executive, many court officers are open
to bribery, and inadequate funding and low capacity further hampers effectiveness.

Cambodia's economic growth has been accompanied by a growing workforce in formal
employment, particularly in garment manufacturing and tourism. The country emerged as a
garment exporter in the 1990s, and following the end of the civil war, tourism numbers have
increased dramatically. Employee growth in both sectors has been marked.17 Access to major
markets for garment manufacturing and the direct experience of foreign clientele in tourism have
also drawn international attention, including from international labor rights groups, at a time
when local employee growth was bolstering union membership.

Cambodia's formal labor-governance framework is relatively comprehensive and progressive in
protecting worker rights. The Constitution enshrines the major international human rights
instruments and Cambodia is a signatory to the primary International Labour Organization (ILO)
conventions. The 1997 Labor Law, drafted with ILO support, incorporates key labor rights such

17
   Employees in the garment industry increased from 80,000 workers in 1998 to over 320,000
in 2006, and employment in the tourism sector, from 10,000 in 1994 to over 100,000 in 2009,
in D. Adler and M. Woolcock, "Justice without the Rule of Law? The Challenge of Rights-Based
Industrial Relations in Contemporary Cambodia," in Workers' Rights as Human Rights, ed. T.
Novitz and C. Fenwick (Aldershot: Ashgate Publishing, forthcoming), 170.
                                                                                                  9
as the right to unionize, bargain collectively, and strike. Problems with the regime lie in the gap
between the formal law and practice, including the willingness of the state to monitor compliance
and the availability of spaces in which parties can seek to enforce their rights.

A 1999 bilateral trade agreement negotiated between the United States and Cambodia had a large
impact on the development of labor relations in Cambodia. The agreement established quotas on
Cambodian garment exports and critically tied yearly increases to improvements in working
conditions. The agreement aligned global, national, and local interests by seeking to "improve the
working conditions in the textile and apparel sector, including internationally recognized core
labor standards, through the application of the Cambodian labor law."18 The agreement similarly
aligned incentives for employers, unions, and the government to improve application of the law.
Employers sought compliance as a means of increasing business through higher quotas. The
unions' incentives were better working conditions and more jobs that would arise from higher
quotas. The government sought to gain from enhanced revenue through increased business
activity and the allocation of quotas between businesses.

Given administrative and judicial inadequacies, the immediate challenge facing the scheme was
the ability to establish legitimate monitoring systems and dispute-resolution processes. Attempts
to create new independent structures were likely to be blocked or captured. In practice,
implementation of the trade agreement rested on two key arms: an enterprise monitoring project
and the creation of a labor-dispute resolution body. The latter is the focus here.

2.2.3 Legal Empowerment Initiative: the Arbitration Council
The dispute-resolution body created is a tripartite Arbitration Council, composed of members
nominated by unions, employer organizations, and the government.19 Each case is brought before
a Council panel of three. Both employer and worker parties to a dispute choose an arbitrator,
while the third arbitrator is selected by the two arbitrators already chosen. The panel has wide
powers to grant civil remedies, yet decisions are generally nonbinding.20 On the other hand, if
either party wants to formally enforce a decision, a court order must be sought. Given the nature
of the court system, this makes the awards practically unenforceable. While the Arbitration
Council has its critics, it can also be said to have enjoyed considerable success, especially given
the governance context and the nature of the parties involved. Its caseload has steadily increased
and it has managed to find "for the most part, workable resolutions minimally acceptable to all
parties."21 A measure of the achievement can be seen by the creation of a viable mechanism "for
conducting negotiations between a weak neo-patrimonial state, well-resourced international
companies, and fledgling labor unions representing the interests of a membership comprised
disproportionately of young women..."22

Why has the scheme had some positive effect? Undoubtedly, the direct influence of international
perceptions and the way in which this has (re)aligned incentives provide an important mechanism
facilitating the operation of the Arbitration Council. The selection of Council members, which
was heavily influenced by the ILO and the balanced composition of the panels in each case, has

18
   Cambodia Bilateral Textile Agreement 1999, quoted in Adler and Woolcock, "Justice Without
the Rule of Law?" 178.
19
   The Arbitration Council was provided for in the Labour Law but had not been created.
20
   Unless the parties have agreed in writing to be bound by the decision or are bound by a
collective agreement incorporating binding arbitration, either party can file an opposition to
the decision and it will have no legal effect.
21
   Adler, Sage, and Woolcock, "Interim Institutions and the Development Process," 10.
22
   Ibid.
                                                                                               10
contributed to a general perception that the Council is fair. The publication of reasoned decisions
for each case adds to transparency and legitimacy. The Council is also carefully positioned so as
to be associated with the state and garner authority from it, yet able as well to remain sufficiently
independent so that it is not captured by the state.

2.2.4 Conclusions
The World Bank was a lead donor in justice-sector reform in Cambodia, but there was limited
political will to drive reforms in a difficult context. J4P's analysis of enterprise-monitoring
mechanisms and the operation of the Arbitration Council provided opportunities for the World
Bank to understand and inform innovative approaches to law enforcement and dispute resolution
in a context where classical administrative and judicial responses were (and remain) highly
problematic. The classic justice-reform response would have been to work with the state
institutions, and a classic legal-empowerment response would have been to support the most
marginalized in their interactions with the state. Given the context, however, both these
approaches have serious shortcomings.

The ultimate success of the scheme in transforming labor relations has been said to lie in
"embedded social dialogue, the provision of public information and trade preferences rather than
more conventional recourse to national or international law."23 The creation of a hybrid between a
rule of law institution and a forum for social dialogue, building on the specificities of
international attention, enabled certain rights to be realized. Law was a significant, though not
exclusive, reference point around which negotiations took place and has had influence even
absent traditional mechanisms for enforcement.


2.3 Mechanisms for Defining and Enforcing Rights: Mining in Sierra Leone

2.3.1 Overview
In Sierra Leone, J4P has conducted analyses of mining that bring together international operators,
national level agencies, and multiple local communities. An array of legislation governing mining
development has often failed to ensure peaceful resource extraction and equitable benefit sharing.
J4P's analysis of legal empowerment is grounded in the view that all development processes have
the potential to cause disputes, as they are invariably about the redistribution of rights, resources,
and responsibilities and the realignment of social relations between different groups. The benefits
of development are frequently a source of contention, particularly if they are not equitably
negotiated and distributed. An understanding and analysis of the disputes inherent to the very
nature of development is too often neglected. The channeling of disputes into fair processes can
be a productive means of negotiating interests and aligning them in agreed settlements. If no
structure exists to address disputes, they can flare into more serious, sometimes violent, conflict.
In Sierra Leone, the state's legal framework governing mining development fails to adequately
incorporate detailed and appropriate dispute-resolution authorities and procedures. J4P worked to
complement broader government-led reforms of the mining sector and acted with a World Bank
technical-assistance project to support the improvements in the mining authority at the national
level. J4P's analysis has led to the design of pilot projects to see how increasing access to
information can address the justice issues facing communities. J4P teams are also designing
aspects of a community-driven development program supported by the World Bank.



23
     Adler and Woolcock, "Justice Without the Rule of Law?" 182.
                                                                                                  11
2.3.2 Context
There is particular sensitivity surrounding the management of the mineral sector in Sierra Leone.
Sierra Leone was subject to civil war from 1991­ 2002. While the reasons for the start of the
conflict are debated, the mismanagement of Sierra Leone's mineral wealth is a well-documented
theme in narratives of civil strife. The extraction and sale of diamonds fueled the continuation of
the war. J4P's work had to be undertaken with care, and highlighted the importance of research
and analysis for understanding the potential for mining to trigger or exacerbate conflict. Perhaps
as important as conflict over access to the minerals is the inequality that can arise as a result of
their exploitation. As Sierra Leone's Truth and Reconciliation Commission concluded, "while the
elite and their business associates in the diamond industry have lived in grandeur, the poor have
invariably been left to rue the misappropriation of the collective wealth."24

Sierra Leone's mineral sector is an important driver of the country's development, second only to
agriculture as a source of employment and income.25 Mining occurs on a range of scales and has
recently seen the return of several large-scale foreign operators who suspended operations prior to
the war. Global mining company investment is sensitive to the risk of local conflict. The
International Finance Corporation's Foreign Investment Advisory Service states that "resistance
from local communities was the most common reason for an international mining company to
withdraw from an investment."26 Conflict risk is also assessed on a subnational scale, affecting
the location of mining investments within countries. According to a 2005 study in Sierra Leone,
34 percent of companies surveyed decided against investing in a particular location on account of
human rights issues, including potential conflict with local communities, relocation issues, and
security concerns.27

The mineral sector in Sierra Leone is governed by numerous national laws and regulations that
have been subject to recent reform. In practice, the mining-governance system is characterized
by: inconsistencies and ambiguity in the rules; the number of agencies involved, which requires a
high level of coordination and capacity across government (which in turn is often overwhelmed
and understaffed); and high levels of complexity, which makes it difficult for communities to
understand and claim their rights and to hold both mining companies and authorities to account.
Monitoring and enforcement of the entire governance scheme remains inconsistent. It frequently
relies on pressure from communities and civil society, which are typically inadequately informed
and resourced to properly fulfill this role.

The most pressing flaw of the legal framework is the failure to include appropriate dispute-
resolution processes. The Mining Ministry is the only body legally designated to arbitrate
disputes involving mining companies, yet there is no guidance as to the types of disputes the
Ministry will handle, nor the principles and procedures for resolution. More accessible avenues
for communities to seek redress, such as through a nationwide system of local courts,28 are

24
   Sierra Leone, Truth and Reconciliation Commission, Witness to Truth: The Final Report of
the Truth and Reconciliation Commission of Sierra Leone (Freetown, 2004), vol. 3B, chap. 1,
3. http://trcsierraleone.org/drwebsite/publish/index.shtml. Accessed September 2009.
25
    World Bank, "Mining Sector Reform: A Strategic Environmental and Social Assessment,
Sierra Leone," Report 44655-SL (Washington, DC: World Bank, 2008), 18.
26
   Foreign Investment Advisory Services, "Competitiveness and Corporate Social Responsibility
in Sierra Leone: Industry Solutions for Tourism and Mining" (2006), 4 in Katherine Rogers,
"Governing Sierra Leone's Mining Sector: The Mining Sector's Accountability to Host
Communities" (Unpublished draft on file with authors, 2009), 13.
27
   Ibid.
28
   Local courts, also known as native administration courts, are the lowest level of the formal
justice system, with typically one or two courts per chiefdom. See Ryann Manning, "The
                                                                                                12
prohibited from hearing cases involving mining companies. Paramount chiefs, the top authority in
each of Sierra Leone's 149 chiefdoms, can hear cases but the process is voluntary and
nonbinding.

A complex state legal regime intersecting with diverse local rule systems makes it difficult to
determine and track benefits. Communities have rights, entitlements, and benefits that arise from
different sources, which are calculated in various ways, distributed by a range of authorities, and
given to different beneficiaries. Under state law, one community may be entitled to surface rents,
compensation for disturbance and damage, a percentage of sales from nationally managed
development funds, employment, and commitments to community development projects.

Though important and justified, a number of additional legal considerations further complicate
the picture. National law provides that minerals are owned by the state,29 and that landowners
have to grant consent to mineral-rights holders prior to any operations taking take place on their
land. Most land in Sierra Leone is held by communal groups and remains unregistered. The
nature of land ownership makes it difficult to determine the appropriate consent giver(s), as well
as the processes for offering consent. The government benefits from mining through revenue
derived from a number of sources including annual mining license fees, royalties, export duty on
diamonds, import and export fees, corporate tax, council taxes, and fees to the National Social
Security Insurance Trust.

Thus, even with time and access to information, an understanding of the system is challenging.
Information about the law and mining operations is not readily available and is frequently
difficult to access even within the state authorities themselves. This lack of transparency fuels
accusations about what has been promised and who is receiving what. Community grievances can
thus be maintained even when there is little basis in fact. Companies can be following the law but
still encounter problems. For communities, it becomes difficult to claim their rights and hold both
mining operators and authorities to account.

Local-level disputes are a common cause of conflict. Within communities, some benefit more
than others. Those who control interactions with mining companies and the state can entrench
their power, particularly through the dispersal of benefits. This can further disadvantage the
poorest and most marginalized groups. Mining representatives often feel that they are interacting
with communities appropriately by dealing with the leaders, but this opinion is often not shared
by the general populace. A common complaint in mining communities in Sierra Leone is that the
people do not know the terms of the agreements their leaders have struck with outsiders. Intra and
intercommunity disputes arise when some obtain employment in the mines and others do not.
Local traders may benefit from increased economic activity while some landowners are forced to
resettle. Depending on the local rules systems governing land, some landowners may be willing
and able to offer consent while their neighbors may not. These all serve to cause divisions in
communities. Traditional mechanisms are not often equipped to deal with such disputes,
especially in the face of the rapid social change that industrialization precipitates.

2.3.3 Responding to Disputes: the Village Resettlement Committee



Landscape of Local Authority in Sierra Leone: How `Traditional' and `Modern' Justice Systems
Interact," Justice and Development Working Paper Series, vol. 1, no. 1 (Washington, DC:
World Bank, 2009).
29
   The authority to grant access for small-scale and artisanal miners has been delegated to the
subnational (chiefdom) level.
                                                                                               13
Despite a paucity of information, the complexity of the governance regimes, and a lack of formal
dispute-resolution mechanisms, communities have not been without some power in affecting the
conduct of mining operations and mineral policy in Sierra Leone. In December 2007, the national
government suspended operations at a large-scale diamond mine30 following a series of disputes
with local communities. A local pressure group had organized a demonstration at the mine site,
using the occasion to present a list of demands on issues including crop compensation, relocation,
employment, and community development. Demonstrators entered the site and soldiers hired by
the mine operator opened fire. Shots were reportedly also fired from within the crowd. In the
violence, two protestors died and eight others were injured. This triggered the Sierra Leonean
president's intervention and a suspension of mine operations. The president established a
commission to investigate the circumstances surrounding the incident. The commission had three
months of hearings and released a report and recommendations in March 2008, which led to the
drafting of a government white paper based substantially on the recommendations. The white
paper suggests fundamental changes to mining policy.

The lifting of the mine suspension shortly after the release of the white paper prompted a flurry of
criticism by members of the affected communities, some civil society organizations, and certain
sections of the media. The government responded to the criticism by inviting the company and
the community pressure group to a series of meetings aimed at resolving outstanding matters.
Considerable headway was made and the agreements arising from the meetings helped to
improve relations, including between communities and their paramount chief, who had been
siding with the company. The government also established a committee on the reopening of the
mine, with representatives from the local pressure group and the company, the paramount chief,
the local mining warden, the minister, the Permanent Secretary and Director for Mines, and the
member of parliament for the area. Through this process, many of the original community
demands were eventually met. One outcome was the creation of the Village Resettlement
Committee in conjunction with the local pressure group, the Mineral Authority, and the Ministry
of Agriculture.

Given the lack of any standing judicial or administrative procedures, this dispute-resolution
process had to be fashioned ad hoc in response to the particular event, a process that was not in
place to prevent the dispute becoming violent. Furthermore, it has not been enshrined to deal with
future disputes, either at the same site or elsewhere, raising the chance that disputes could again
turn violent without a forum in which to resolve them. Even so, it represents a good faith effort by
all parties to identify a constructive and context-specific way forward in an environment
otherwise characterized by pervasive institutional fragility.

2.3.4 Conclusions
Interests and disputes concerning mining occur along several axes, and the law is often used as
one mechanism to align these interests and establish a process for dispute resolution.
Communities often welcome mines as a source of development resources, but disputes regularly
arise, as promises are not fulfilled or some benefit more than others. National governments gain
from the tax and royalty revenues but have to balance the risk of local conflict with the desire to
attract investment. Mining companies seek to maximize profit but are also aware of the potential
of local conflict to disrupt operations and their global corporate responsibility.

The input of intense, large-scale development processes into a context of weak national
governance as well as local rules systems not attuned to processes of rapid change is highly likely

30
     The Koidu Kimberlite Project operated by Koidu Holdings Limited.
                                                                                                14
to cause disputes and/or exacerbate existing ones.31 When actors at the local level act collectively,
they are often able to assert their interests against national and global actors, and achieve more
equitable outcomes. In these contexts, one aim of the law should be to establish "good
contests,"32 that is, relatively more equitable negotiation and dispute-resolution processes in
which the interests of actors can be debated and more closely aligned following principles of fair
process. When these processes are established on an ongoing basis, they can help channel
disputes in a nonviolent manner.

The J4P approach of garnering user perspectives of justice issues around important development
processes highlights the pervasive nature of intracommunity issues in causing disputes. It also
highlights the difficulty that communities face in knowing and claiming their rights when
information is scarce and established processes are lacking. Insights into these perspectives can
be invaluable in informing national policy making and reform for more equitable development.
This is leading to the design of pilot interventions in the mining areas and to informing the design
of a planned mining-governance project. The knowledge and experience gained are being used
directly by the J4P team beyond mining areas in the design of a community-driven development
program.


3. JUSTICE IN DEVELOPMENT: SOME PRINCIPLES FOR AN ALTERNATIVE APPROACH


What do the above cases tell us about the way we should think about and conduct justice reform,
and what role external players can play in the reform process? J4P used research processes and
outputs as a fundamental part of the development process. These research projects opened up
spaces for dialogue and contestation around reform agendas, brought local perspectives and
evidence to the reform debate, and were used to inform the design of more locally embedded,
equitable, and conflict-sensitive interventions.

These cases, and J4P's broader experience, have highlighted a number of summary principles that
are important in their own right, but together constitute the beginnings of an alternative
framework for the theory and practice of legal reform. These principles center on justice and
legal-empowerment strategies that are developed in conjunction with mainstream development
programming, and that emerge through a sustained commitment to undertaking the detailed
research necessary to understand local contextual realities.

3.1 Development is Conflict

Too often, development practice focuses only on the product--be it a new health facility, road, or
piece of legislation--and fails to realize that all development activity has the potential for
conflict, since the distribution of resources and power will create winners and losers. Even when
project managers are sensitive to conflict issues, however, too often effective development
programming is seen as a matter of trying to design conflict away, and success is seen as
perfecting the approach so that disputes do not occur. Notwithstanding that eliminating disputes
through design may be overly optimistic, and that conflict can clearly become tragically violent,
J4P argues that conflict can also be a good thing, a means by which the participation and voice of
diverse interests in the reordering of society are harnessed. It is through equitable processes of
contestation that new agreements and procedures are formed, and their legitimacy acquired.

31
   P. Barron, R. Diprose, and M. Woolcock, Contesting Development: Participatory Projects and
Local Conflict Dynamics in Indonesia (New Haven: Yale University Press, forthcoming).
32
   Adler, Sage, and Woolcock, "Interim Institutions and the Development Process."
                                                                                                 15
In matters pertaining to the enfranchisement of women and minority groups, however, or the
inclusion of marginalized communities in everyday economic and social life, the change
trajectory is more likely to be a J curve: things get worse before they (possibly) get better.
Moreover, the depth and length of the J curve is often impossible to discern ex ante, with the
result that human rights campaigners often embark on such risky ventures knowing full well the
likely costs to themselves, their families, and careers, and that change may not even occur in their
lifetime. Played out across countries and regions, especially those that are ethnically diverse,
broad processes of democratization and economic development can thus be expected to generate
considerable levels of conflict, with a high likelihood of that contention becoming violent. In this
sense, Sierra Leone and Cambodia are both countries that have experienced extreme violence as a
result of failed and/or misguided attempts at modernization, and where the devastating
institutional aftermath has only made it more difficult to bring about and sustain equitable reform.

In less graphic circumstances, development projects of all kinds are inherently part of such
processes of social change, but especially those projects targeting the poor and disadvantaged
groups (or areas). And precisely because the trajectories of change are likely to be nonlinear, even
or especially when policies and projects seeking to bring this about are diligently implemented,
very different analytical tools are needed to design and assess those policies and projects. It could
therefore be the role of those interested in justice and legal empowerment to facilitate the creation
and consolidation of spaces for peaceful, more equitable, and more inclusive conflict, as part of
the process of reform.


3.2 Institutional Reform as an "Interim" Process

In forging responses in contexts characterized by legal pluralism and weak, corrupt, or captured
state systems, it can be useful to focus on hybrid and interim approaches to furthering the rights,
interests, and aspirations of the poor and marginalized. Support for the development of interim
institutions in certain contexts, such as the Cambodian Arbitration Council, embodies a
historically grounded theory of social change. It recognizes that the modern rules systems and
institutions of government, familiar to those in prosperous, rule of law states, emerged as a
product of, and continue to be forged by, political processes.33 Governance and justice institutions
are not static and therefore "perfectible" bodies, but rather are continually shaped and reshaped in
response to the demands of society. The very nature of modern systems is that as society changes,
they are able to incorporate and reflect new principles in an orderly and peaceful manner. One of
the positive features of most developed country systems is their ability to continually,
incrementally, and peacefully change--rather than being subject to periods of stasis followed by
violent rupture. Legitimate justice institutions are integral to achieving this more positive feature.
When it comes to conducting justice work, it can be useful to think about creating institutions that
have the ability to change in equitable ways.

Justice institutions are also not laid bare on the landscape, but in all contexts there will be
systems--often incredibly strong--for ordering society and dispute resolution. Any justice
reform initiative, such as the peace committees in northern Kenya, has to take these into account
and can benefit from their legitimacy and familiarity. Since legitimate institutions have to develop
through a process of equitable political contestation ("good struggles"), their content is largely

33
  Ibid.; Robert Bates, Violence and Prosperity: The Political Economy of Development (New
York: W.W. Norton & Co., 2001); D. North, J. Wallis, and B. Weingast, Violence and Social
Orders: A Conceptual Framework for Interpreting Recorded Human History (New York:
Cambridge University Press, 2009).
                                                                                                  16
unknowable in advance. From a policy perspective, it is therefore best to approach the design and
reform of institutions with a mindset less concerned with what the end-state institution will look
like and wary of importing a blueprint of best practices from elsewhere.34 One might even be
agnostic with respect to final institutional form, though this does not mean that development
practitioners should not care about the outcomes. Rather, a key goal of the outcomes should be
the promotion of rule-based, transparent, and accountable decision making, not the replication of
a particular institutional form. For development practitioners this leads to the questions: "What
spaces exist for the negotiation of development conflicts? How can these be filled with
institutions that both respond to the realities of power as it is currently exercised and provide the
potential to transform these in the direction of greater equity and participation?"35


3.3 Building Local Research Capacity

Governance and justice reform are qualitatively different from other types of development work,
such as building roads and irrigation systems. Since rules systems are a reflection of and
responsive to local norms, their legitimacy rests on being "home-grown." Therefore, the ways in
which development actors support such justice reform are critical to their ability to have a
positive influence, and the modalities used for other development programs are not necessarily
applicable. Governance and justice work are less amenable than other types of work to the use of
"tool kits" and the application of "best practices." Equitable political contestation and widespread
scrutiny are necessary for legitimacy and therefore the sustainability of rules.

This does not mean that there is no positive role for outsiders, as the Cambodia case clearly
highlighted. Development organizations can also assist in other ways, such as through support for
local capacity to conduct the kind of empirical research necessary to understand the user's
perspective and inform policy makers. J4P's long-standing partnership with LRF in Kenya
illustrated how development practitioners can contribute--in this case, research and policy
experience--to increased local capacity, leading to effective national level advocacy. Even if, at a
certain level of abstraction, the peace committees share many features with similar organizations
elsewhere in the world, the context-specific details matter, just as do the reality that these details,
and the legitimacy they confer, are the fruit of local research conducted and communicated by
Kenyans themselves.

Development agencies will also continue to support development programming in many sectors,
leaving a clear role for justice practitioners to ensure that these programs take an integrated
approach to justice and legal empowerment--as shown by J4P's work with the Arid Lands
Resource Management project in Kenya and the design of a community-driven development
project in Sierra Leone. In Sierra Leone, J4P's efforts complemented broader government-led
reforms of the mining sector and worked together with a World Bank technical-assistance project
to support improvements at the national mining authority.

3.4 Deep Engagement with Local Contexts

J4P understands "law" in a broad sense, incorporating the whole range of rules systems that are
relevant for governing communities and resolving disputes. This is informed by theories of legal
pluralism. Even a brief consideration of most countries where J4P operates highlights the
continuing importance of legal orders outside the state in governing people's lives and the

34
   S. Haggard, A. MacIntyre, and L Tiede, "The Rule of Law and Economic Development,"
Annual Review of Political Science 11 (2005): 205.
35
   Adler, Sage, and Woolcock, "Interim Institutions and the Development Process."
                                                                                                   17
difficulty that the state has--and will continue to have, in many contexts-- in providing judicial
services to the majority of its population. J4P understands that rules systems are embedded in
local norms; thus, such systems cannot be effectively modified without also addressing the
attendant changes that must take place in society.

By focusing on the particular context, the program makes sure to start with "what is" rather than
the common risk of importing assumptions about what should be, or jumping to an idealized end
product. In this sense, it is the underlying function of rules and institutions that is important (that
is, what they "do"), not the form (what they "look like"), which they may take in any one place.
An approach that explores the different roles of law in society, and not just its legislative or
institutional manifestation, helps to reveal the importance of context in shaping how rules systems
in general--and the law in particular--are experienced and navigated by marginalized groups.
Crucially, given the complexity of the context, the time that reform takes, and the frequent
shortage of trained researchers to help policy makers more adequately understand both context
and reform processes, it is especially important to develop a strong commitment to building local
capacity to conduct supportive research and associated (long-term) advocacy.

3.5 Integrating Diverse Sources of Empirical Evidence

An understanding of context is further served by conducting in-depth research to form an
empirical basis for reform. The program recognizes that in many contexts, development agency
decisions about reform, rather than simply reform concerning justice issues, are made without
sufficient evidence and understanding of the most pressing challenges that people face or
sufficient understanding of the available means by which they are addressed (or not). While
evidence alone is not sufficient for making good policy, it becomes extremely difficult without it.

It is also critical that the right sort of research is carried out and that appropriate methodological
approaches are deployed. Many development fields and organizations, including the World Bank,
favor quantitatively gathered data. Such data can, of course, be useful as a starting point in justice
and legal-empowerment issues, and for discerning wider trends, but complementary qualitative
methods are needed to understand the real meaning of rules systems to those over whom they
preside, the trajectory that processes of reform take and the different aspects of reform as
experienced by those most affected by them, the dynamics that determine whether reform efforts
succeed or fail, and the lessons that flow from such dynamics. In formal methodological terms,
such issues are often "unobservable" via orthodox household survey techniques, but can be
carefully explored and more accurately understood by qualitative methods.

As such, the J4P approach uses mixed methods in an attempt to more closely discern and
understand processes of change, but it is primarily community-focused, and starts from the
perspective of the users of justice systems. By focusing on the most common justice issues, the
program recognizes the importance of demand in building sustainable justice reform, linking with
the conception of legitimate rules systems as the product of local political processes.36 A user
perspective can also be useful in illuminating the most pressing reforms in a legally plural
environment. In Sierra Leone, for example, J4P conducted extensive field research with
communities in mining-affected areas to identify the impact of development processes and to
determine the ability of communities to enforce their rights and claim entitlements. By starting
from a user's perspective, it became clear that access to information about rights, as well a forum

36
  In this sense, research evidence is useful not only for understanding processes of change,
but for monitoring the extent to which any promised policy reforms are actually implemented
and are effective. To this end, researchers can be active contributors to the efforts of broader
constituencies for change, which can include civil society groups and the media.
                                                                                                   18
in which to assert them, were as important as the content of the rights themselves. Moreover, by
ascertaining and disseminating community perspectives on justice, J4P's approach empowers
those voices to inform policy. The program also looks for successes, especially openings where
collective action by the poorest and most marginalized has been able to make some headway in
terms of overcoming power differentials and achieving more equitable outcomes. An analysis of
"success stories," usually achieved in circumstances otherwise less than conducive to equitable
reform, can inform and inspire other such efforts elsewhere.

J4P is also concerned with grounding its analysis of the field research data in an explicit theory of
social change. In-depth qualitative research, informed by history, the political economy, and the
sociocultural context in which reform is being undertaken, is central to this task. As noted above,
social change is often nonlinear, violating one of the most common assumptions of empirical
efforts to assess project efficacy.37 Knowledge of such trajectories is important not only for
understanding processes of social change at the local level, but also for discerning the impact of
policy/project interventions designed in response to them. In Indonesia, a full arsenal of social
science tools, from ethnographic investigation and newspaper analysis to household surveys and
case studies, has been deployed to better understand and document these processes.38


3.6 The Ubiquity of Rule Systems in all Areas of Development

Since all development processes impact on rules systems and have potential to cause conflict,
justice issues should be looked at across all aspects of development. Ideally, justice work is best
designed and implemented not as stand-alone programs, but together with the whole range of
development projects and reform processes. J4P's work exemplifies this, ranging from mining
and community-driven development to cash transfers and labor rights. J4P works closely with
larger Bank projects that are aligned to a government's development priorities and reform agenda.

A predominant area of work focuses on land and natural resource management, since this is
regularly the most common source of disputes and conflicts in communities with which the
program is engaged. Land and natural resources often represent rural communities' most valuable
asset and are inextricably linked to group identities, values, and ways of making sense of the
world; as such, issues of ownership and use raise key rights issues for citizens. In developing
countries, land and natural resources, in particular extractive industries, can also be a major
source of income for both states and communities. Natural resources are thus an important area of
study from both the perspective of individual resource-affected communities and the broader
polity.


4. CONCLUSIONS AND CONTINUING CHALLENGES


The process-driven approach advocated by J4P does not fit easily with the prevailing imperatives
of most development institutions, which strongly prefer manageable inputs and knowable,
predictable outcomes--or at least outcomes that are stated as such ex ante (whether or not they

37
   M. Woolcock, "Toward a Plurality of Methods in Project Evaluation: A Contextualized
Approach to Understanding Impact Trajectories and Efficacy," Journal of Development
Effectiveness 1, no. 1 (2009): 1.
38
   The documentation concerning both the methodologies deployed and their outcomes are
available at http://www.conflictanddevelopment.org and
http://www.justiceforthepoor.or.id/index.php?lang=en. Accessed August 2009.
                                                                                                 19
reveal themselves in the fullness of time). The J4P approach, which prioritizes the development
of local capacity to establish in-depth evidence as a basis for reform, can be resource-intensive.
Furthermore, it involves a necessarily slow process that requires commitment beyond the time
frames typically provided for in development project cycles. It also runs counter to justice reform
conceived of as a primarily technical problem, one which simply requires outside "experts" to
provide their knowledge of "best practices" via intensive short courses for jurists, senior civil
servants, and other government officials in capital cities. These may sometimes have their place,
but they are unlikely to have much enduring traction and credibility unless they are also grounded
in the more labor-intensive and time-consuming work required to understand the nature of the
broad array of rules systems shaping the lives of the poor and the dynamics of change (and
resistance to it) to which they give rise. These processes are inherently complex and difficult to
conceptualize, measure, and assess, and it is precisely for these reasons that they need a deft
articulation of theory and evidence.

J4P is acutely aware that it must not offer itself as a new "silver bullet" solution for legal reform.
Indeed, it confronts on a daily basis its inherent limitations and constraints--and the vexing
ethical issues emanating from them. The interim institutional approach, for example, may be seen
as accepting institutional forms that do not meet the standards of developed countries and/or
international norms of best practice. Does this mean accepting "not as bad" justice for poor
communities? What does it mean for the goal of advancing supposedly universal and inalienable
rights? The danger of adopting incremental and iterative approaches is that the powerful may
accede to small initial improvements as a means of relieving (and it is hoped, from their
perspective, snuffing out) any further pressure for reform. Establishing and sustaining coalitions
for reform are difficult and sometimes even dangerous, while windows of opportunity may be
scarce, leading to pressures to maximize any gains made. While such courses of action can be
optimal with the benefit of hindsight, the history of successful justice reform suggests that
incremental steps are often the most sustained, and that moving in this more gradual way
frequently offers the best means through which to address the conflicts that necessarily result.

Consistent with its own principles, the J4P approach is itself an iterative process, one that seeks
and welcomes "good contests" over the most effective and equitable strategies for bringing about
more accessible and responsive justice systems for all. In this crucial sense, the program aims to
be part of an ongoing and evolving conversation about how best to build accessible, effective, and
equitable justice systems for and by the poor.




                                                                                                  20
List of papers

Title                            Author                    Number

2009

The Landscape of Local           Ryann Elizabeth Manning   1
Authority in Sierra Leone: How
"traditional" and "Modern"
Justice and Governance
Systems Interact

Challenging Generations:         Ryann Elizabeth Manning   2
Youths and Elders in Rural and
Peri-Urban Sierra Leone

Exploitation of Poor             Ryann Elizabeth Manning   3
Communities in Sierra Leone:
False Promises in
Reconstruction and
Development

Justice Versus Peace in          Tanja Chopra              4
Northern Kenya

Justice without the Rule of      Daniel Adler,             5
Law? The Challenge of Rights-    Michael Woolcock
Based Industrial Relations in
Contemporary Cambodia

How Do Local-Level Legal         Varun Gauri               6
Institutions Promote
Development?
An Exploratory Essay

Taking the Rules of the Game     Caroline Sage, Nicholas   7
Seriously: Mainstreaming         Menzies, and Michael
Justice in Development           Woolcock
The World Bank's Justice for
the Poor Program
     The Legal Vice Presidency
           The World Bank
          1818 H Street, NW
       Washington, DC 20433
                 USA
     Telephone: 202-458-1530
 Internet: www.worldbank.org/legal
E-mail: legalhelpdesk@worldbank.org




        J&D
        justice&development
        working paper series