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Key Functions of Legal Systems With Suggested Performance Measures

Author: R Messick
Date: 2001
Size: 7 pages (55 KB)

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Summary

Quality legal and judicial reform depends on a thorough and accurate evaluation of a country's legal institutions. What should be done to get to know the actual strengths and weaknesses of the legal system?

This paper from the Public Sector Group of the World Bank attempts to help reformers devise evaluation techniques that can be adapted to specific situations in different countries. In the first part of his paper, the author asks how well the legal system as a whole is performing its four key functions: The deterrence of wrongful conduct, the facilitation of voluntary transactions, the resolution of private disputes, and the redress of the abuse of government power. The information required for this part consists of questions posed either to the public as a whole or to target groups (government officials, lawyers, judges, and so forth) together with a selected number of aggregate indicators. The second part of the paper attempts to assess how well the key institutions of the juridical system, such as the courts, the private bar and the public prosecutors, are working.

Conducting a good evaluation of a juridical system is difficult, time-consuming and expensive. Data is often of dubious quality, many important aspects of the legal system are not quantifiable, and subjectivity in measurement is sometimes inevitable. Yet, while evaluation techniques can never be perfect, it is crucial to attempt evaluation and to improve upon existing methods.

Other conclusions from the study are that:

• While it would require an extensive effort to collect much of the quantitative data on the courts, in many cases a close approximation can be obtained by asking either a sample number of significant users of the legal system or informed observers
• Some indicators, such as the extent to which information about the law is reasonably available to all citizens, call for the application of judgement, and, thus, require additional criteria to guide the evaluation
• No amount of clever statistical manipulation could produce a single number measuring juridicial independence
• Statistical data generally is less reliable than surveys, even in relatively advanced judiciaries.

An evaluation of the effectiveness of a reform initiative is essential for the success of the reform. It must be based on hard evidence rather than frequently erroneous common wisdom. The policy implications from the paper make it clear that:

• Assessment of the courts should consist of the evaluation of their independence and accountability, the competence of their personnel, the efficiency of their work, and their accessibility
• Assessment of the private bar should consist of the evaluation of its accountability and the degree of competitiveness for their services
• Assessment of the public prosecutors should consist of the evaluation of their ability to exercise independent judgement
• Juridicial independence should be measured by asking lawyers and judges whether the courts, the private bar and the public prosecutors are more independent than they were previously
• Whenever possible, information should be gathered through surveys rather than through statistical data.

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Source: Messick, R., 'Key Functions of Legal Systems with Suggested Performance Measures', draft paper, World Bank, Washington, D.C.