Australasian Aid & International Development Workshop ANU: 13 February 2014

1. Australasian Aid & International Development Workshop ANU: 13 February 2014 The Imperative to Realign the Rule of Law to Promote Justice Dr Livingston Armytage Centre for Judicial Studies Adjunct Professor of Law, University of Sydney

2. Reforming Justice • Judicial reform in international development • How can promoting the ‘rule of law’ become more effective?

3. Challenge • Justice is fundamental to society and human well being • Courts are the key agency of state to protect and promote justice • But courts are often non-responsive: • inaccessible, inefficient, incompetent, corrupt, impunity ... • reforms blocked by power-holders • Aid agencies spend billions to promote ‘rule of law’ around world • Results often disappointing, limited impact • Asian Development Bank 2008: ‘under competitive’ • Promoting justice is important but very difficult • Current imperative: to improve and refine approach

4. Global context • Massive growth: x100-fold over 20 years • World Bank: 1,400 projects, $5.9 billion (Dañino R, 2005) • The state, market and individual • State-managed growth – 1950-60s • Structural adjustment – 1970-80s • ‘Washington Consensus’ neo-liberal free-markets 1989-2000s • Enabling and capable states: 9/11+ ... • Prevailing justifications are instrumental: • Economic - to promote growth • Political - to promote good governance • Social - to promote safety and security • Humanistic – to empower individual, and human rights

5. Critique of Experience Problems of theory, knowledge, method, results: • Confusion over purpose: • Torch-beams in the night: some evidence justice correlates with growth, but empirical evidence of justification is incomplete, ambiguous, contested • Dollar/Kraay, La Porta, Rajan, Rodrik, Stiglitz, Sachs, Easterly, Collier … • Traditional top-down focus on ‘thin’ procedural reforms to mainly improve court efficiency is insufficient: • WDR 2006: equity gap critique; Woolcock/Sage ... • Difficulties in measuring success • Few results: mounting chorus of disappointment Trubek/Galanter, Blair/Hansen, Carothers, Messick, Hammergren, Jensen ...

6. Two analytic questions • Purpose – what is the goal of reform? What is justice, why is it important, how is it promoted? • Evaluation – how is success to be measured? What does a more just society look like?

7. Purpose • Consensus: judicial reform is important - but why … ? • Role of state: supply of public goods inc. justice • Historically, economic growth justification has primacy • Re-invention: • Empowering the poor, pluralism and non-state justice(eg. WB’s J4P) • Convergence with human rights discourse (eg. UN’s A2J, and ICJ) • Political economy , constitutionalism and distribution (eg. DFID’s ‘drivers of change’) • Discourse riven by contest over theory • Instrumental rolenew institutional economics, ‘rules of the game’ (Weber, North) • Constitutive rolefairness, rights, capability and opportunity (Rawls, Dworkin, Sen)

8. Evaluation • Evaluation of performance • Development performance: perceptions of disappointment • Evaluation gap between rhetoric and practice; no orthodoxy • Confusion over purpose: accountability v learning • ‘Paradigm war’ over methodology • Meta-evaluation of reform: rarely done, poorly done

9. New empirical evidence • Asian Development Bank: 1990-2007 • AusAID in Papua New Guinea: 2003-7 • Practitioners across Asia/Pacific: 2000+ • New evidence: • Risk of failure of existing approach - ADB • Initial successes promoting substantive rights – South Asia • Formative capacity to demonstrate success – PNG

10. Conclusions: Purpose • Judicial reform should promote justice • constitutive human-centred justification • Justice is concerned with fairness and equity

11. Conclusions: Evaluation • Evaluation is normative: frameworks of law • international, domestic, customary • Civil wellbeing is measurable • improving access to and use of rights