A Changing Demand For Justice

While predicting the future is difficult, it is reasonable to hope that the fu-ture will see more countries becoming “middle income” countries. Gov-ernments may find themselves held accountable by increasingly empow-ered and articulate middle classes demanding more and better services.

There is also a trend, particularly in some developed countries, towards increasing difference in wealth between the richest in a society and the rest. We have seen increasing wealth and power being accumulated by global corporations, many of which have significant impact on the lives and well-being of people around the world. These trends, too, may lead to changing demands for fairness.

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Around the world, indications point towards a more vocal and pow-erful demand for more equitable and inclusive growth at the macro inter-State level. For example, the rise of the BRICs and G20 in international decision-making; at the meso level, multi-national companies adopting more environmental policies and promoting corporate social responsibil-ity; and at the micro level, individuals seeking justice from other individ-uals and vis-à-vis the State and companies to reduce barriers to opportuni-ty. The global financial crisis and the conditions which gave rise to the Arab Spring have brought about an increasingly strong and articulate voice for justice. This was conceived of both in the broadest sense en-compassing the notions of equity and fairness of opportunity for the indi-vidual in each society, and thus the negation of entrenched societal injus-tices; and also in the narrower sense of ensuring that fair decisions are ar-rived at and enforced through legitimate institutions. Development equat-ed solely with growth at all costs is no longer viewequat-ed by many around the world as the optimal means for a country's path towards prosperity. The

“Washington Consensus” model of development from the 1990s onwards is well known, as are the criticisms. Indeed, all of these terms – develop-ment, growth, and prosperity – have expanded to become broader and generally more inclusive. Development is viewed not as solely the provi-sion of financial and technical assistance from richer to poorer countries.

Rather, it involves a process of change within societies across the eco-nomic, political, and social spectrums that may be influenced by internal factors such as population growth, natural resource development, increas-ing GNP per capita, or institutional development, as well as external fac-tors such as climate change, trade flows, and global financial forces in-cluding financial and technical assistance factors. The early 1990s also saw the beginning of the World Bank’s justice reform work, with an ini-tial focus on reforming institutions to support the development of effec-tive market economies. As the consensus around the “Washington Con-sensus” has dissolved, the Bank’s work in engaging with the justice sector has expanded in new and innovative ways. There are many government institutions, non-governmental organisations (NGOs), and donor entities participating in the reform processes of justice institutions, directing them, carrying out analytical work to support better reform, or providing tech-nical assistance to guide that work. We lay out here what we perceive as some emerging trends in the field of justice and development.

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2.1. Justice as a Key Component of Development Thinking

The Bank’s flagship annual publications, the World Development Re-ports, have increasingly stressed the importance of justice and equity in the context of development. The 2011 World Development Report (WDR) on “Conflict, Security and Development” points out how justice must be a priority if conflict is to ease, identifying justice as one of the three pillars, along with security and jobs, to help countries out of conflict and violence. The 2012 WDR on “Gender Equality and Development”

shows that women's access to justice is key to their agency at work, in the family, and as members of the polity, and thus important in ensuring gen-der equality. The essential element of the various human opportunities in-dices being developed by the Bank and other agencies is that all individu-als should have the same possibilities and chances, such as getting a job, going to school, and accessing health services. In society, an essential el-ement of the concept of equity was discussed in the WDR 2006 on “Equi-ty and Development”. The WDR 2011 advanced these themes to recog-nise that justice is a broad and integrated area of development and thus, in order to achieve justice in a society and assist in its development, a holis-tic approach to a broad range of legal issues including land law, family law, and business law is needed.

In September of this year, the United Nations (UN) General As-sembly convenes a High Level meeting on the Rule of Law to discuss the report of the Secretary-General on “Delivering Justice” (2012). This re-port, too, focuses on the importance of respect for the rule of law for de-livering just outcomes in the daily life of all individuals. Just as the WDR 2011 stipulated that justice must be seen in the wider, rather than narrow-er, sense, the UN report states that “the equitable and transparent admin-istration of housing, land and property based on rule of law principles is key to economic, social and political stability”. We therefore see a con-verging trend within the international community with regard to how the rule of law and the justice sector can support more inclusive and equitable development around the world.

2.2. More Justice Interventions in Development Operations Across Many Fields

Perhaps partially in response to the trend towards conceiving of justice as a requisite for economic and social development, we see a visible upswing

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in the number of justice reform-related components in Bank development projects in fields such as health, mining, education, and natural resource governance. Infrastructure projects, for example, include mechanisms for grievance redress that build on local- or country-level justice practices and institutions, or pay attention to ways in which the project can strengthen policies and processes for negotiating investment projects between affect-ed communities and large investors, or look to strengthen legal actors' ability to hold the project accountable for service delivery.

Private sector investors, too, are becoming increasingly concerned with the human and social rights impact of their actions, not only as a re-sult of the increasing pressures from civil society, but also because it is being increasingly recognised as “good business”. Large foreign investors are recognising that they need to become effective conflict analysers and mitigators, and will increasingly seek the assistance of civil society organ-isations with effective local expertise in these areas. In the Bank, we are engaged in work to support the development of “durable deals” in the context of development – that is, agreements based on a locally owned sense of equity – in the area of mining concession agreements and large scale land sales, to ensure that such deals benefit the local community as well as the society as a whole and do not become points of conflict. The Bank’s focus on good governance has evolved to include the demand for good governance, which supports civil society actors in their efforts to hold governments accountable.

The growing interest in aspects of justice such as grievance and ac-countability mechanisms among development actors in fields outside jus-tice has created a burgeoning environment of different actors bringing multiple perspectives, skills, and insights to the field of justice and devel-opment, which is pushing the boundaries of thinking around it.

2.3. Greater Focus on the Needs of Those Who Use Justice Services A trend is visible in both the developed and developing world towards supporting justice systems that focus on users’ needs and problems. Pio-neered at the end of the 1990s and used with increasing frequency in many jurisdictions, legal needs assessments are giving greater insight into the strategies that people actually employ to resolve their disputes across the spectrum of dispute resolution possibilities that are open for them. The majority of individuals faced with a ‘legal problem’ (in the broadest sense of the word) may not turn to lawyers and judges for dispute resolution –

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they are likely to turn first, or instead, to administrative decision-makers, to someone who can help mediate the problem, to family, community or religious leaders (the broad ‘informal’ or non-State sector of justice ser-vices). This recognition has encouraged formal justice institutions to pay greater attention to understanding and meeting the demands of their users.

Thus, we see judiciaries beginning to employ interesting mechanisms to identify needs of potential users of their services – court user committees, user surveys, et cetera. And we see a recent explosion in innovative mechanisms of cheaper delivery of legal services to individuals (for ex-ample, through public access to case information, standard form docu-ment compilation on websites, websites providing direct access to legal advice, increasing use of paralegals, outsourcing documentation analysis to cheaper jurisdictions, and alternative funding arrangements for liti-gants) by courts and lawyers around the world.

The recognition that people employ myriad strategies to resolve disputes and seek justice has also helped to expand development actors’

focus beyond courts, police, and prosecutors, broadening it to consider many possible centres of dispute resolution within a competitive land-scape. Donors and countries seeking to respond to the justice needs of people are examining ways in which they may support community-level organisations that mediate disputes or monitor government services, ad-ministrative law entities, paralegal organisations, and customary justice entities.

2.4. And a Corollary Focus on Accountability to Those Users

Much of the discussion regarding rule of law and justice sector interven-tions has focused on promoting the independence of the judiciary as a means to ensure impartiality in judicial decisions and accountability of the executive. By the mid-2000s, however, significant consideration started to be given to the other, complementary, side of the coin – that of accounta-bility of the judiciary to the citizens it serves. While the judiciary must be sufficiently independent from interference from public and private sector actors to be able to consider the cases before it with impartiality, it must also, like other government institutions, be able to demonstrate effective use of public funds to provide citizens with justice services. The focus on the accountability aspect of projects relating to the justice sector has grown in recent years, in terms of both an increased focus on the account-ability of justice institutions to the citizens they serve, and an increased

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focus on the role of justice institutions in ensuring accountability of the government to provide essential public services to its citizens. Thus, while early efforts to improve justice institutions sought to measure inputs to those institutions (improvements in training, for example, or better IT sys-tems and infrastructure to support the institutional function), recent justice reform projects are more likely to seek to measure outputs likely to affect the service rendered to users of the system – and justice institutions are encouraging citizens and NGOs to become directly engaged with monitor-ing their performance.

3. What Role May Justice Play in a Changing