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Throughout the past two decades, the demand for social science indicators to quantify the performance of various institutions has increased dramatically. These indicators seek to address the concerns of policymaking and public audiences by operationalizing such complex, multi-dimensional concepts as governance, access to justice, corruption, and the rule of law, to name a few.
The increased demand for institutional indicators has led to a proliferation of indices. This special issue of the Hague Journal on the Rule of Law, entirely dedicated to measurement of institutional indicators across countries, represents the outcome of a collaborative effort between the Hague Institute for the Internationalisation of Law (HiiL) and The World Justice Project (WJP). In August 2010, these institutions convened in Washington, DC, a seminar with some of the leading researchers and indicator developers in the fields of governance, corruption, and access to justice. The goal of the seminar was to facilitate an open conversation about the need for, and the limitations of, cross-country institutional indicators. Presentations made at this seminar have been turned into papers for this special issue.
After decades of disappointing progress in building the rule of law in societies that suffer from poorly functioning legal systems, the development community has turned its attention to legal pluralism. Legal pluralism is a prominent feature in many development contexts, with both negative and positive implications for the rule of law. The negative questions revolve around whether or to what extent the presence of multiple coexisting legal forms hampers or detracts from efforts to build the rule of law. The positive questions revolve around whether alternative legal forms in situations of legal pluralism might satisfy rule of law functions that failing state legal systems are unable to provide. This essay explores these questions.
Empirical indicators are widely used in both developing and developed countries to assess the performance of justice systems. Most existing indicator initiatives base their findings on expert surveys, document reviews, administrative data, or public surveys. While each of these data sources is suited to the measurement of particular facets of justice system performance, reliance on just one or two sources of information can introduce systematic bias, distorting the results of assessments. This paper discusses the strengths and weaknesses of each of the commonly used types of indicator data and describes an approach that uses clusters of indicators drawn from multiple sources. This method can reflect the complex and multi-faceted nature of justice systems while including checks on the biases inherent in individual data sources. The paper concludes with a discussion of the strengths and drawbacks of this method compared to approaches more commonly adopted by existing indicator initiatives.
In the early years of this century most of the legal and judicial reform work of International Development Agencies (hereafter IDAs) focused mainly on state institutions. Today, things have changed. After the disappointing outcomes of many years of legal and judicial reform and in view of the enormous challenges posed by state building in numerous fragile and failed states, IDAs are beginning to accept that governance and justice mechanisms that operate either outside the framework of the state or in the fringes between state and society — non-state justice systems (hereafter NSJS) — are indispensable components of reform processes aimed at improving the overall performance of legal and judicial institutions. The materials discussed in this paper, drawn from Latin America and Africa, suggest that any successful engagement with NSJS requires a deep understanding of both local state structures and political processes. It also requires an in-depth understanding of the state and community within which NSJS operate. Indeed, as this paper shows, successful engagement should be seen as part of a continuing process of state building. Unless IDAs are willing to take a wider and more political approach to their involvement with NSJS, they will not achieve meaningful progress in rule of law and governance projects.
In recent years, The Asia Foundation (The Foundation) has conducted a series of Economic Governance Indexes (EGIs) in countries throughout South and Southeast Asia including Bangladesh, Sri Lanka, Vietnam, Cambodia, and Indonesia. EGIs are country-specific diagnostic tools used to assess and rank sub-national units (provinces, states, districts, etc.) on various aspects of their regulatory environments.
This article reviews the basic theoretical and programmatic rationale for the EGI. The overall rationale for this tool stems from the idea that economic governance impacts private sector development – independent of structural endowments such as location, infrastructure, and human capital. Therefore, good economic governance practices explain why some sub-national units out-perform others in spite of having similar initial endowments. EGIs have become an important tool to provide relevant economic governance information to policy makers, business leaders and citizens. Examining the methodological principles underlying the index approach, this article also describes how the three primary EGI methodological elements anticipate potential pitfalls and how they have been addressed within the methodology.
The field of law and development has been a recognizable one for approximately a half-century. However, evaluations of the success of the law and development endeavor appear overwhelmingly negative. Failure of previous efforts of law and development do not appear to be due to a lack of either talent or money. Some of the world's best legal talent has been brought to bear on the problems, and very large sums of money have been spent. The failure appears rather to have been conceptual, as suggested by the need for an alternative theory. So some critical consideration appears necessary of the main underlying concepts which have driven law and development projects. Subsequent attention will be given to an alternative theory, that of sustainable diversity in law. The rule of law has historically been a useful concept in some parts of the world; it could well be replaced by the rule of laws.
Historical research represents our richest vein of information about the workings of legal pluralism. Before the long nineteenth century, all legal orders featured jurisdictional tensions without strong claims of legal hegemony by states. In a world in which plural legal orders were the norm, multicentric jurisdictional orders created continuities across diverse regions and polities. What can we learn from the history of legal pluralism in considering its relation to economic development today? To begin, legal history can provide an analytic guide to grasping the complexities of current legal patterns and behavior. A particularly helpful rubric emerges out of studies of the legal history of empires. A second relevant finding confirmed by historical studies of plural legal orders, including and especially empires, consists in the observation that legal actors – again, at all levels – tended to show a preference over time for adjudication in forums that seemed to provide a greater possibility of enforcement of rulings. This paper examines these phenomena in early modern societies in order to lay the groundwork for analyzing legal pluralism in the nineteenth and twentieth centuries. By keeping in view the jurisdictional jockeying of imperial legal orders, we gain new perspective on the role of legal pluralism at major turning points in the development of international law. In particular, it becomes possible to understand nineteenth century prohibition regimes as forming through jurisdictional restructuring within and across global empires – a view that contrasts with traditional narratives of the rise of international law. Similarly, understanding the pervasiveness and persistence of strategies of appealing to imperial legal authority allows us to appreciate the effects on legal behavior of robust claims to the dominance of state law over subordinate jurisdictions in the twentieth century.
This paper summarizes the methodology of the Worldwide Governance Indicators (WGI) project, and related analytical issues. The WGI has covered over two hundred countries and territories, measuring six dimensions of governance starting in 1996: Voice and Accountability, Political Stability and Absence of Violence/Terrorism, Government Effectiveness, Regulatory Quality, Rule of Law, and Control of Corruption. The aggregate indicators are based on several hundred individual underlying variables, taken from a wide variety of existing data sources. The data reflect the views on governance of survey respondents and public, private, and NGO sector experts worldwide. We also explicitly report margins of error accompanying each country estimate. These reflect the inherent difficulties in measuring governance using any kind of data. We find that even after taking margins of error into account, the WGI permit meaningful cross-country and over-time comparisons. The aggregate indicators, together with the disaggregated underlying source data, are available at <www.govindicators.org>.
The central question to be addressed in this article is: what does this empirical evidence tell us about the nature and effectiveness of judicial reform in Asia?
This case study of the judicial reform program of the Asian Development Bank (ADB) experience 1990-2007 is framed within the global context of substantial growth, underwhelming results, and continuing evolution of approach in an ongoing search for success.
The case study marshals and evaluates a substantial body of new evidence from Asia which has been remarkably under-studied in the academic discourse. This body of experience contributes timely evidence of practice which is significant in supporting a number of key propositions. First, it reveals the still evolving nature of the judicial reform enterprise. Second, it demonstrates that ADB has created some ‘results’. Third, it remains difficult to find any evidence of ‘success’ owing to the continuing conceptual fuzziness in the purpose and goals of endeavor, and the continuing lack of systematic monitoring and evaluation. Fourth, there are some tentative indications of an emerging capacity to demonstrate developmental effectiveness. While this evidence generally conforms to the global literature, the recency of endeavor in this region reveals a dynamic process of evolution, and highlights the incubation of a potentially paradigmatic shift in reform approach.
Multidimensional measures (composite indicators, indices, ratings, league tables) can effectively underpin the development of data-driven narratives in support to policy. A controversy surrounds the use of these measures. We review some good and bad practices from the recent literature. We then discuss briefly a decalogue to develop a multidimensional measure. We argue in favor of a multi-modeling approach to represent different scenarios in the construction of an aggregate measure prior to drawing recommendations for policy making. Finally, we try to establish a link between the analytic use of well-designed aggregate measures and the development of a robust culture of evaluation of policies based on evidence. An application of these concepts and tools to the Rule of Law index developed by the World Justice Project is given.
Billions of dollars are spent on legal development every year, but its effectiveness continues to be questioned. Many donors have responded to this internal and external critique by developing monitoring and evaluating systems. This article problematizes the tendency of conventional modes of evaluation to assume a link between the outcomes of individual projects (the ‘truth’ of rule of law) and the fulfillment of overarching program goals (the ‘consequences’). We argue that examining this assumed link is of particular importance as rule of law projects take place within a host of simultaneous political and social changes; are time consuming and unpredictable and have multiple and sometimes conflicting objectives. Our analysis of four recent rule of law projects from Asia, Africa and Latin America exposes the inability of conventional evaluations to accommodate such complexities. We demonstrate how, by contrast, robust empirical research reveals important truths about the disparity between the actual, intended and unintended consequences of legal development projects.
The recent demand for new measures of the rule of law confronts several methodological challenges. This article calls for careful attention to fundamental social science ideas of conceptualization and measurement in approaching the rule of law. Efforts to measure complex social phenomena such as the rule of law are challenging, and thus require that researchers and policy makers pay attention to the cautionary rules of social science in their efforts. Violating these basic rules risks producing measures that are not reliable or valid, and could be a bad basis for policymaking. This paper demonstrates some of the pitfalls that rule of law researchers have fallen into and suggests improvements in measurement approaches.
Efforts to measure the rule of law trigger a process of clarifying how the rule of law impacts people's lives. Accountability emerges as a key element of the rule of law. Nowadays, accountability is created through courts and by countless other forums, including the court of public opinion. Legal pluralism is common: the standards for accountability can be norms from local, national and international levels, set by public or private organizations, formal as well as informal. Measuring the status and progress in the field of rule of law would then require investigating what these accountability mechanisms jointly produce, working together and competing with each other. But how can this be established?
Inspired by developments in the health care sector, this paper suggests focusing on specific problems and the way they are resolved. Legal needs studies and crime surveys suggest a classification of problems for which accountability is frequently sought. This can be extended to other areas of governance. These studies also gather data about the incidence of problems and which forums are actually addressed for accountability. Sophisticated client satisfaction surveys now monitor whether this leads to fair and acceptable results. Evidence based treatments for some legal problems are also developing. The rule of law in a country may eventually be measured as the capacity to prevent and resolve the most urgent problems. Interventions can focus on specific, urgent problems, opt for the best available ‘treatments’ and measure progress systematically.
The ‘rule of law’ remains an elusive commodity in Afghanistan. Securing a stable Afghanistan underpinned by the rule of law has proven exceedingly difficult despite widespread consensus in the international community regarding its fundamental importance. There is broad recognition that structural flaws in the Afghan justice system and legal profession undermine access to justice and democratic governance. Lawyers are indispensible to consolidating the rule of law; they draft laws, administer justice, shape government policy, and inculcate respect for individual rights. Yet, nobody, including the Afghan government, knows how lawyers practice in Afghanistan. Even less has been written about the process of educating Afghan lawyers even though a country's system of legal education has an undeniable impact on its legal system. Lawyers' education, especially in developing or transitional countries like Afghanistan, impacts how they ‘practice their profession, both in private and government roles.’ Legal education also promotes scholarship and practical expertise among a diverse range of government officials. Legal education is, thus, essential to the rule of law. This article provides an overview of the Afghan legal education by weaving together the scant existing literature and complementing it with several interviews with Afghan law professors to illuminate important historical and recent trends. It also begins to gather the baseline information urgently needed to better inform international efforts to promote the rule of law through assistance to the Afghan legal education system.
Whilst the books reviewed here explicitly acknowledge that our understanding of the meaning and function of the rule of law remains limited, they certainly constitute progress in scholarship on the idea. In policy-making, as Heckman and Nelson put it ‘we continue to see value in pursuing a rule of law framework’ (p 13 Global Perspectives on the Rule of Law). By providing a range of critical insights into the rule of law in these two volumes, the editors both give us access to key debates in the field in accessible form and also ensure that the ideas explored by the authors will shape future research on the rule of law
This article reviews the utility of global indices and indicators of judicial performance and quality from the standpoint of those designing and implementing country reforms. It argues that despite the recurrent interest of donors in sponsoring these global systems, they are of limited use for reformers because 1) they operate at too high a level; 2) they consequently fail to capture the types of changes promoted by reform; and 3) they are too easily ‘gamed.’ A more significant drawback however is their likely discouragement of efforts to develop in-country management information systems, or databases on key events in case processing that could be used to generate more reform-specific measures. Donors must bear part of the responsibility here as their financing of court and sector-wide automation has overlooked this need as well.
The link between efficient and well-functioning institutions and the economic development of a country has become the core of the good governance effort. The focus on transparency and accountability as a means of improving those processes stems from a belief that well-designed underlying institutional arrangements for particular governance systems, i.e., rules of the game, along with a strengthening of organizational capacity to achieve mandates, can lead to better governance outcomes. This is particularly true in combination with regular monitoring of performance and publication of findings, so that citizens and policymakers can be in a position to make informed judgments about how these systems are functioning. This paper will begin with a discussion of aggregate indicators of governance, outlining both advantages and drawbacks to broad measurement approaches. It will then introduce a complementary approach to governance measurement that shifts the focus from broad concepts to actual governance mechanisms, but will also caution against simplistic divisions among types of indicators. Following that will be a discussion on the nature of actionability and its relationship to reform efforts, and an explanation of how actionable governance indicators (AGIs) can provide detailed information on the design, capacities, performance, and immediate impacts of governance systems. Finally, the paper will present scenarios in which actionable governance indicators were developed to capture information on: 1) the legal frameworks of income and asset disclosure, and 2) the implementation of disclosure systems. Data from both initiatives will be presented, along with the indicators.
Legal problems and justice needs are similar in different jurisdictions and different locations. Processes for resolving them, as well as rules determining outcomes, however, vary widely. Measuring the price (costs) and quality of such ‘paths to justice’ from the perspective of the user is likely to enhance users' choice, enable comparison and learning, to increase transparency, and to create incentives for improving access to justice. This paper discusses the contours of a methodology for this purpose and of some concrete tools for measuring costs, procedural quality, and outcome quality. Conceptualization of a path to justice, criteria and items included in the measurement framework, as well as different data collection methods, are presented. Experiences from two pilot studies give insight into the challenges that lie ahead, and in the potential uses of the (developing) measurement methodology.