In this interview, Sam Muller, founding director of The Hague Institute for the Internationalization of Law (HiiL) and Juan Botero, executive director of the World Justice Project, discuss the success of the promotion of the rule of law over the past two decades. Measuring success is difficult, but when it can be identified, they said, such situations can be used to understand ways to advance rule of law in situations worldwide.
Muller and Botero offer several examples where formal and informal law and western and non-western law worked together to effectively promote the rule of law. They also discuss ways in which law through legal empowerment can help advance rights and condition of life. Botero offers examples where different relationships, such as between citizen and state or worker and land, are altered legally, effectively lifting people out of poverty.
The interview was conducted by Warren Hoge, Senior Adviser for External Relations at the International Peace Institute.
Listen to interview (or download mp3):
Warren Hoge (WH): I’m here for the Global Observatory today with Juan Botero, the executive director of the World Justice Project, and Sam Muller, the founding director of the Hague Institute for the Internationalization of Law. Today, their two organizations have just published a report entitled Innovations in the Rule of Law. As the audience knows, the rule of law will be the focus of a high-level meeting at the United Nations the day before the September 25th opening of the 67th session of the General Assembly.
In the report, you say that despite some skepticism over the success of the promotion of the rule of law over the past two decades, you believe there are innovations and advantages of it that must be highlighted. So first, explain the skepticism, and then, what are the innovations that the world ought to be paying attention to?
Sam Muller (SM): Well thank you very much Warren. The skepticism I think is there at various levels. I mean, one very simple thing is that you could say you’ve poured billions of dollars on building rule of law in Afghanistan. And is there rule of law? There are countless examples where money has been spent on training judges, on drafting great laws, on building bar associations, and at the end of the day when you look at a lot of countries in the world, you can still ask: Is it still there? No it isn’t. Very often rule of law projects depend also on the political situations. So there were times when Kenya had a bit of rule of law, then it became worse, and I guess now it’s climbing up again. And the last thing is, rule of law is very hard to measure. When do you have it? When do you know you’ve actually brought it?
In his latest book, Francis Fukayama, which is a book on the origin of political order, he says very clearly that of all the things that you have to do when it comes to statebuilding, rule of law goes to the culture, to the way people feel and behave. And that’s one of the most difficult things to do – much more difficult than organizing elections for a democracy.
WH: Sam you mentioned that something that’s important is measuring the rule of law, and I know in the report you say “make justice more quantifiable and qualifiable.” Juan, why is that important?
Juan Botero (JB): It is important at different levels: at the country level, at the global level, and at the very local level. Measuring is a tool for civil society organizations, for different constituencies, business communities, and governments themselves to know how progress is being made in one dimension of the rule of law and how this progress is affecting or benefiting or harming the other dimension.
Let me give you a very simple example. A local police officer or chief of police in one very small district in Jamaica, to name one example, has a problem that too many criminals are free, there’s too much crime, and, however, at the same time, some of the police officers are infringing on the liberties of too many citizens.
So these two competing dimensions: how do you advance them together? It’s only when – and this is one of the papers in this volume by Professor Stern Fergusson – when you create specific indicators and use local statistics that are there in a way that you can put those two dimensions together—you can really make progress in advancing the rule of law based on measurement. This also applies at the global level. And to take advancing freedom of speech and freedom of civil liberties at the same time as advancing organizational security, you need to have a quantifiable way of measuring that. The second dimension of this, very quickly, is that the proposal in this report is to integrate global data, local data, and both quantitative data qualitative data – qualitative is support work done by other disciplines, like anthropology for instance.
WH: Another part of the report that particularly intrigued me was when you say, “don’t be afraid of non-state justice systems,” and you qualify that by saying, systems that are indigenous, customary, maybe religious legal orders, and you note they can be often hard to disentangle from the formal legal system. You end up with a recommendation that says, “don’t fight informal justice; work with it.” Explain.
SM: Well, I think that’s partly based on just realistic assessment of what’s happening. If you look at the world population, it’s probably fair to say that, I don’t know, 80, 90 percent of the people solve issues they have themselves. If they have the right information, if they know a few people, they find a way of solving it. And only if they really fail, and that very often is in the case of extreme power disequilibraty. So if you are somebody working in a company, and you are a cleaner and, you have a dispute with somebody in the company itself, clearly you need some help there.
But on the whole, most justice issues are solved by people themselves within their communities. And that applies as much as it does to the more developed countries as it applies to the so-called fragile states and weak states in which a lot of rule of law is happening. And the answer has, I think, that reality has been neglected for far too long, and it’s always been a strategy of strengthening state institutions, making sure you have elections, making sure you train judges, making sure you build all the formal state institutions, because if you have that then you have a state.
And what they… I think what has been insufficiently seen and what we are now learning that is also important is that there are tribal leaders, religious leaders, there’s a lot of justice being delivered out there by non-state actors. And rather than fight them and say “we, as state, are better” you should join them. And that would also be in line with what happened in our own Western tradition. I think if you look at our own history in Europe, almost everything that ended up in the formal legal system was not developed by lawyers. It was developed by people that were using it. And it ended up being formalized in some way because it was something that works.
So that’s I think what we mean with that. And there’s a lot of research. There’s a lot more we know now about these informal justice systems. And we should incorporate them without—I should add as a closing point—being blind to areas where they do have some difficulties. If you go to a— there was one of the articles on a tribal area in Pakistan—if you use the tribal systems you may have a few issues as a woman, at least from our perspective, and gender equality may be a bit difficult. So you should not say tribal, or the informal justice systems are the answer to everything. But look at them, work with them, and try and connect with them with the formal system.
WH: Could you apply that to the current situation in the Arab Spring or even places like Afghanistan where there seems to be a conflict or debate over sharia law and what we accept as formal law structures in the West?
SM: I have no doubt that you can. And I think precisely what you need to do is get away from a formal discussion whether it’s western law or sharia law. I can give you an example that one of our, not in this particular report, but an example that shared to me from one of the people from our network who actually in Afghanistan found that one of the areas where rule of law promotion was working really well is where they looked for areas where informal justice and formal justice connected. And he gave an example of inheritance over land issues. And they found out that this is actually an area where you need both.
You need the religious leaders for the inheritance family kind of law on who inherits what, but you need the judge, the formal judge of the formal system to actually certify that the piece of land is owned by somebody. And if you get them both to work, then they both deliver something to justice clients. And that enhances the faith in the system. And then the religious leader looks good, works very closely with the judge. The judge looks good, works very closely with the religious leader, and you actually have an inheritance case that is solved with a final decision of who owns what, which is good for everybody.
JB: Another great example comes from the community sentencing in Australia. It’s a new experiment. What they do is they deliver the judgment through the formal system, but then the sentencing is administered by the community leaders in the indigenous communities, which come from a totally different tradition from the majority of the population. And these sentences and these processes are much more effective in terms of reducing recidivism, bringing the community together. This is a fantastic example that can be applied anywhere in the world.
WH: Juan, in the report it says that building institutions of justice is not enough. You need something called legal empowerment. Can you explain that for me?
JB: Legal empowerment is a term that encompasses a wide variety of areas. And, in a nutshell, it refers to bringing the law as a tool for the citizen to use it to advance their rights and their condition of life. It is not only having rights in the world frame as a diploma. It is having rights effectively usable, and benefits from that lead to a better quality of life.
Examples of that come from in a wide variety. A few of them are in this report. One that is very successful is land rights. About 70 to 75 percent – according to Landesa, perhaps the leading law organization in this field, who contributed to one of the papers here – about 70 to 75 percent of the poorest people in the world depend on land, but they lack any rights to the land. And what they have found after years of working, decades of working, land rights, not necessarily property rights, it may different forms of rights, less than full property, what they have found is that by altering this relationship between the land and the very poor people that work in them, you can effectively transform the equation to lift them out of poverty. And they have done that time after time in China, in Cambodia, in Latin America, everywhere. So this is one example of legal empowerment of the poor as a tool to advance development and the wellbeing of the citizen.
Another great example that is also covered in this report is issues relating to freedom of speech, freedom of information. The access of information law in India changes the equation between the citizen and the state. It goes from a state that is created to protect itself to a state that is created to protect the people for which it was created in the first place.
WH: I have a final question that I want to ask of both of you. Sam, how did this report come about? What was the inspiration for it? What was the idea for it? And Juan, what effect do you expect it to have on the shaping of the agenda for this high-level meeting that will occur in late September?
SM: The main thing I thought, the report came—I supposed to a degree—out of frustration: frustration that there is a lot of grumbling about the fact that rule of law is not really working. Earlier this year I was part of an advisory group where we tried to think about what could be the essence of an outcome document that the heads of state could adopt at a rule of law opening debate that they’re having at the end of September of this year, and there again you saw there are many ideas about what rule of law is.
So, what we tried to do here is two things. One is, deal with the grumbling, and show that there are actually a few areas where things work. And then you come to the second thing. If states, if NGOs, if academics would focus a little more on a number of these areas that work, we could really make a difference despite all the grumbling. And I hope we’ve achieved that to some degree.
JB: And what do we hope to achieve with this report? Several things. The most important is to show that in a variety of areas—in this case we are highlighting five, but there are many more—sustained progress has been made over the last decade or two decades. We have the world as a whole, maybe it’s not yet implemented everywhere, it is spotty, it is pieces of knowledge here and there, but the world as a whole has acquired a lot more knowledge on how to measure these type of things and how to use this measurement effectively to improve government performance. The world as a whole has learned how working with relational justice systems changes the lives of people, or has learned how legal empowerment of tools and the types of way of doing it has improved the situation of people.
So there’s a combination of areas where success stories have to be highlighted so that the world doesn’t despair in trying to build a better society that is ruled by the rule of law ultimately.
WH: Juan Botero and Sam Mueller, thank you very much for visiting us.