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1. Making the case
for people-centred justice

Trend Report 2021 – Delivering Justice / 1. Making the case for people-centred justice

Reforming justice: high on agendas

Leaders across the world realise the need to upgrade justice. During the 2010s, the World Bank financed justice sector reforms through multi-million dollar loan agreements in Azerbaijan, Kazakhstan, Kenya, Morocco and Peru, among others. The European Commission and United Nations Development Programme (UNDP) supported reforms in civil and criminal justice. The United Nations Office on Drugs and Crime (UNODC) coordinated efforts to improve criminal justice standards and norms. UN Habitat developed methods to prevent and resolve problems related to land and housing. Altogether, most of these organisations recognise delivering fair solutions as a top priority in a broad portfolio of activities.

In Canada and elsewhere, chief justices support task forces and think tanks on access to justice. Many countries in Africa and Latin America have justice sector development plans. Ministers of justice in Argentina, France, Portugal and the UAE have established groups in their justice ministries to lead innovation efforts, each of which has introduced game-changing justice services.

Political agendas vary but many reform efforts go in similar directions. The Supreme People’s Court organised efforts to scale up and professionalise the Chinese court system, encouraging mediation as well as rule-based adjudication. Russia set up a countrywide system of justices to aid peace. In January 2017, outgoing US President Barack Obama published an article in Harvard Law Journal outlining a strategy for criminal justice reform. In a rare instance of bipartisan cooperation, his successor Donald Trump signed the First Step Act, which aims to improve rehabilitation of offenders and protection of victims. Incoming governments in Italy, Germany and the Netherlands promise justice system reforms in coalition agreements. Each political party may have different priorities: being tough on crime, access to justice for the disadvantaged, or serving the police and the legal profession as powerful constituencies. Even so, improvements can be agreed on.

Each of the 47 countries that are members of the Council of Europe have committees and groups that implement reforms in the judiciary, the prosecution and the legal aid system. The Organisation of American States and USAID have supported justice reform initiatives throughout Latin America. To address large scale injustices, countries set up truth and reconciliation commissions or special tribunals. Each of these organisations is tasked with finding solutions for injustices and preventing them from happening again.

View Examples

Examples of task forces with ambitious strategies: Michigan Justice for All Task Force, Supreme People’s Court China, Systems of Civil Justice Task Force of Canada,Access to Justice Task Force of Australia, the Justice Reform Commission of Peru.
HiiL worked with groups of justice leaders on systematic reform informed by justice needs data in Jordan, Kenya, Mali, Netherlands, Nigeria, Syria, Tunisia, the UAE and Ukraine.
Many countries have permanent law reform commissions that are mostly recommending changes in laws and drafting those changes. For instance, the Law Commission of India was set up by the Government of India for periodic review of legislation and judicial system.
The National Centre for State Courts in the USA gives an international overview of access to justice task forces, including Access to Justice Committee of the Law Council of Australia, Access to Justice Asia, Access to Justice in China, European Agency for Fundamental Rights, Canadian Access to Justice Committee, United Nations Development Project Tajikistan, The Japan Federation of Bar Associations, Access to Justice Foundation in the United Kingdom, United Nations Development Project in Bosnia and Herzegovina.
The American Bar Association lists criminal justice task forces and has a directory of Access to Justice Committees.
Other countries have commissions that oversee the codes of civil or criminal procedure, either permanently, or for a substantive overhaul.
Canadian Forum on Civil Justice aims to make the civil justice system more accessible, effective and sustainable by supporting citizen-centred initiatives.
An example of the many ad hoc commissions and initiatives for more limited reform is the state of New York eliminating pretrial detention and cash bail for offenders charged with nonviolent felonies in 2019.
Canadian Forum on Civil Justice aims to make the civil justice system more accessible, effective and sustainable by supporting citizen-centred initiatives.

Much to learn: an emerging paradigm

Not all reform efforts have been successful. Quite a few have been temporary and many law reform commissions have lost their momentum. programmes have been criticised for spending too much on legislation, building courthouses or training the police. Reform agendas contain long lists of findings and recommendations but are not always specific on how these can be prioritised or implemented. Task force leadership is often dominated by people primarily trained as lawyers, which is reflected in reports calling for changes in legislation and budget increases for legal institutions. As vital as these institutions are, they are only one part of the system needed to deliver people-centred justice effectively.

In many low- and middle-income countries, the services provided by police, prosecutors, judges and private attorneys are mostly available in major cities. Reports by the European Commission for the Efficiency of Justice (CEPEJ) – the Council of Europe organisation collecting justice system input data – show considerable differences in the way justice systems are organised, funded and scaled. Few of these differences can be explained by a local culture of conflict resolution.

EU best practices on justice reform

The EU uses the following best practices for cooperation with partner countries on justice support and reforms:

Legal empowerment: People need to be made aware of their rights and the services at their disposal, especially vulnerable groups.
Equal access to justice: We need to ensure that everyone everywhere has access to justice. That means focusing not only on institution building in capital cities but also on supporting and reforming regional and local institutions, as the most vulnerable people usually live in remote rural areas.
Institutional accountability: Focus on oversight mechanisms to enhance transparency and hold justice institutions accountable for their commitment to change.
Research-based actions: Comprehensive research helps to understand local dynamics. Applying a scientific method is also key to developing indicators that measure the results and impact of interventions on people’s lives.
System-wide perspective: When analysing and reforming the justice sector, we need to consider all aspects of it, including civil, criminal, public, and international law, as well as traditional justice mechanisms.
Service-delivery approach: Justice sector support needs to move to a service delivery approach. The constraints impairing justice delivery to beneficiaries need to be addressed.
Results-focused approach: Each intervention needs to be implemented with realistic objectives and expected results, taking into account the specific context and whether it is resistant or favourable to change. A suitably long timeframe also needs to be set to ensure the success of an intervention.
Balancing different types of actions: Financial support or investment in equipment or facilities is not enough in itself. It needs to be combined with technical assistance to help local actors build their capacities. Political dialogue throughout the entire reform process is also essential to ensure that local actors are on board and take ownership of the reform process.
Human rights and gender equality: Human rights and gender equality must be protected and promoted throughout the reform process.
Donor coordination: Donor duplication should be avoided and cooperation between low-income countries should be promoted (South South cooperation).

The emerging consensus – which we expand on below – indicates that reform agendas have state-of-the-art ways to measure outputs, outcomes and impact. A results-based approach with clear objectives is needed. Research and evidence-based working when interacting with parties in a justice problem is combined with systematic improvements of the ways services are delivered at scale. The service delivery approach involves local institutions and traditional justice mechanisms have their role. Political dialogue – in which high-level participants take ownership of and accountability for justice institutions – is also needed.

Survey data on justice needs are now widely available and support this consensus. The World Justice Project, HiiL and ad hoc research groups collected data about justice problems, impact and justice journeys in more than 100 countries. The general trend suggests that few people rely on formal justice institutions when they have to cope with conflicts or crimes. The justice gap has now been quantified and is considerable in almost every major country surveyed. The unmet demand for justice is striking.

Making the case for systematic programming: speaking to the heart

Systematic programming for people-centred justice starts with making the case. Although the reason for setting up a task force may be evident, a strong initial proposal is needed to set up a task force with adequate resources. The following may help to inform this proposal.

Justice speaks to hearts and minds. Both can be addressed. Injustice is easy to spot, emotionally. Anger has been called the emotion of injustice. Compassion and outrage are quickly triggered. Justice task forces are often established in situations of broadly shared indignation. A particular group is victimised or a high profile crime has been committed. A task force is formed to rectify the injustice.

Justice is emotionally more complex than injustice. It comes from being heard, feeling respected, obtaining remedies and sharing resources fairly. Assuming responsibility for one’s role in an injustice, forgiving someone who caused harm or exacting retribution: these moral choices can be confusing. Most police fiction and media reports have the shape of a whodunit, thereby simplifying or overlooking this complexity. The storyline of justice ends when the good guys find out what happened and make an arrest. That is when the complex task of delivering justice really begins.

A task force will therefore often be initiated in a setting where the media call for retribution. We think a task force will be better positioned if it can connect to the feelings of people involved in everyday disputes, and to society’s collective awareness that at least a degree of social harmony must be restored.

Questions to answer may be: Is it possible to design a process that makes all those involved feel that, while they might not have obtained everything they initially wanted, they were at least heard and respected? What will people experience emotionally when the injustice is remedied?

A task force may also want to connect to concrete situations people are familiar with: How would the country look if all land conflicts are resolved on time and fairly? What would the effect on work life be if all workers had a sound, balanced contract, and were able to access their benefits via a user-friendly claiming platform? How would people feel if conflicts that inevitably arise were resolved by a one-stop procedure at courts, leading to standardised settlement agreements that are tailored to individual needs? What if domestic violence was prevented and treated in an evidence-based way, delivering the outcomes women need to feel safe?

In our projects, we encounter many other reasons to consider people-centred justice programming. Task force members and their funders mentioned the following qualitative reasons to support justice programs: less polarisation; reduced need for migration; human rights protection; protection of the vulnerable, prevention of civil unrest crime prevention through improved conflict resolution; and greater government accountability for public services. Each of these reasons makes sense intuitively.

View Examples

Justice is related to being heard, feeling respected, obtaining remedies and fair sharing. Clara Sabbagh and Manfred Schmitt, Handbook of Social Justice Theory and Research, 2016.
The emotional response of just deserts (punishment proportionate to the moral wrong) is well researched: Carlsmith, K. M., Darley, J. M., & Robinson, P. H. (2002). Why do we punish? Deterrence and just deserts as motives for punishment. Journal of Personality and Social Psychology, 83(2), 284–299.

Quantifying the burden of injustice and how justice contributes to GDP

The rational, quantitative business case for people-centred justice can be built on data that are now widely available. Quantifying the yearly burden of particular types of justice problems can help make the case for investment. This yearly burden can be calculated in a similar way as the burden of disease. The number of new problems per year in a country can be derived from legal needs surveys. Impact can be quantified (in $) using data on self-reported severity, consequences (violence, loss of job, stress related illness) and money/time spent on resolution. The cost of state resources used to address these justice problems should also be factored in.

This is how such a calculation might look. In a typical megacity or state with a population of 8 million, 1 million people can be expected to experience a pressing justice problem each year. 500.000 problems will have a major negative impact. If only 30 percent of these problems are resolved fairly and effectively, the annual burden of injustice can be assessed in the billions of dollars. If the average negative impact of a land problem in an African country of 40 million people is estimated to be $1000, and the resolution rate is now 30 percent, the burden of land injustice on this country can be quantified at approximately $455 million per year (see the numbers in the infographic, which comes from our 2018 trend report).

Quantifying the possible contribution of justice to GDP is more complicated, but possible.. Resolving a land justice problem may increase the productivity of a farmer who is able to cultivate the formerly disputed land. Solutions that address the consequences of deadly crimes can contribute to the recovery of survivors and the reintegration of perpetrators into the economy. When people are relieved of an existential threat to their livelihood, and can manage their relationships through more effective contracts, their contribution to the economy can grow. Justice also sits well with the movement towards broader concepts than GDP: more fairness will improve well-being.

Existing research sheds light on the negative effects of unresolved justice problems. Some people move on, while others will feel resentment and suffer more significant consequences. These consequences can be quantified. When justice institutions fail to give people a voice and provide remedies, this contributes to feelings of frustration or neglect within a substantial portion of the population. Governments around the world rightly see this as a threat to stability.

Assessing the current system

Another way to make the case for people-centred justice is to look at indicators from justice sector institutions and assess how these institutions are perceived by the population.

In our 2018 Trend Report, we suggested a low-cost and simple way of diagnosing the condition of the current system. It can be applied to a national justice system, to one institution or to the supply chain for one type of justice problem.

9 indicators for assessing urgency

Backlogs: Are they diminishing and is this decrease sustainable?
Capacity: How many problems do formal institutions solve compared to the number of pressing justice problems
Prioritisation: Are institutions helping the people who need it most or is successful access depending on money, stamina and other resources?
Motivation: Is the motivation of front line justice practitioners in/decreasing?
Workload per case: Are (adversarial) processes increasing the size of files over time or is the workload decreasing?
Digitization: Are online and IT systems increasing the number of cases handled and/or improving outcomes for citizens?
Confidence: To what extent do justice leaders believe in how work is done and try to attract more cases in order to help more people effectively?
Support: What % of citizens are willing to support the courts and justice sector institutions and believe the system will solve their problem when they need it ?
Funding: To what extent can donors and ministries of finance be convinced to invest in better justice?

The effects of this way of assessing urgency need to be considered. In India, Tata Trust sponsored an assessment of the capabilities of the justice institutions in each state. The indicators collected in 2019 were not positive and were summarised in a strongly-worded message:

Signals of system stress may help to convince individual leaders in the justice sector to take action. Whether a negative system assessment motivates funders or outsiders to help out remains to be seen. A negative appraisal, and a sense of crisis, may also lead to denial or resignation. In 1974, the U.S. government created the Legal Services Corporation to address the nationwide access to justice crisis. Numerous task forces have since used this language. If a crisis already continues for half a century, is it really a crisis? Or is it a disease for which no cure is in sight?

A more positive case – one that quantifies how solutions can contribute to well-being – is likely to be more effective. Pathways out of the crisis – and an explanation of how a task force can identify and facilitate them – need to be provided as well. A newly established task force can now benefit from a growing body of knowledge on how to position the need for justice reform.