The Political Approach to the Law and Justice Sector
Author: Adrian Leftwich
Size: 17 pages (301KB)
This paper argues that law and justice need to be conceptualised as institutional matters, bound up with governance and driven by political processes: law and justice need to be understood not as a ‘sector’, but as central to processes of institutional development and therefore of governance for development. The strategic goal in law and justice must be to help facilitate a locally appropriate and legitimate institutional order that both provides stability and allows for change. Only with this coherent overarching perspective can a donor government's aid, defence, law and diplomacy agencies coordinate their support. A long-term, integrated whole-of-government approach is needed to contextualise and shape technical law and justice assistance.
In developing countries where institutional arrangements are often unconsolidated, competing and contested, issues to do with the law and justice 'sector' are unavoidably political and bound up with institutional formation and state-building. The questions of which institutions (rules and laws) are to rule, which are considered ‘just’ and which are to be enforced are political, not administrative or technical.
The only secure basis for a stable law and justice environment that is also conducive to development is a structure of institutions that is locally legitimate, understood and agreed by most participating organisations and players. Stability is a process, not a condition or state. It is a set of understood, ongoing and largely predictable actions and behaviours that enable individuals and organisations to cooperate and compete peacefully. The key political components of a stable society are its institutions, its organisations and their interactions. Those interactions constitute the processes of stability. Thus, a stable society involves:
A fourth factor affecting stability is the degree of inequality, poverty and exclusion that citizens find tolerable. Intense levels of inequality facilitate instability.
Law and justice are central to the processes and conditions of stability. ‘Law’ involves the structure of rules; ‘justice’ involves citizens' perception of the fairness of rules and the way they are enforced, and of whether levels of inequality are tolerable. Further:
It is important to recognise that, while ‘security’ issues may be important and urgent in the short term, in the medium and long term real security is a function of stable institutional arrangements and hence political processes. Donors therefore need to:
Leftwich, A., 2011, 'The Political Approach to the Law and Justice Sector', Think piece prepared for the Office of Development Effectiveness, AusAID
Organisation: AusAid, http://www.ausaid.gov.au