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:
- Legitimate institutions/rules: Institutions are the formal and informal rules that shape economic, political and social behaviour.
- Consensual participating organisations/players: Organisations, in both the public and private sectors, are the main ‘players’. They are formally or informally coordinated vehicles for the promotion or protection of a mix of individual and shared interests and ideas.
- Authorised means of enforcement: Enforcement is required to ensure compliance with institutional arrangements and maintain order. Many societies have parallel and plural systems of enforcement, but unresolved conflict among those holding power can result in civil conflict.
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:
- Stable institutions of law and justice (especially new ones) can only be established through a process of political contestation and negotiation, and can seldom be technically or exogenously designed.
- The formation, negotiation and evolution of legitimate institutions requires the involvement of relevant interests – in particular, the leaders and elites of relevant organisations.
- Technical or administrative assistance or capacity building are needed to help draft the detail and shape the arrangements of law and justice institutions. But they are needed only in the context of politically?negotiated local agreements about those institutions’ principles, purpose, function and form.
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:
- Facilitate and support the emergence of developmental leaders and coalitions who can negotiate the formation and shape of institutions
- Form a high-level policy group to refine an overarching understanding of law and justice and allocate resources for programmes and operations
- Address the need for workforces in many government agencies (development and beyond) to be better prepared, trained and experienced in thinking and working politically
- Develop the expertise of development agency staff in: promoting endogenous political settlements; supporting the emergence, professionalisation and negotiating skills of local leaders and organisations; facilitating contact and negotiation among interest groups; helping to align the interests of different groups; and developing local technical skills in drafting law and regulations.
