Rule of Law Reform and Development

Rule of Law Reform and Development

Charting the Fragile Path of Progress

Michael J. Trebilcock and Ronald J. Daniels

This important book addresses a number of key issues regarding the relationship between the rule of law and development. It presents a deep and insightful inquiry into the current orthodoxy that the rule of law is the panacea for the world’s problems. The authors chart the precarious progress of law reforms both in overall terms and in specific policy areas such as the judiciary, the police, tax administration and access to justice, among others. They accept that the rule of law is necessarily tied to the success of development, although they propose a set of procedural values to enlighten this institutional approach. The authors also recognize that states face difficulties in implementing this institutional structures and identify the probable impediments, before proposing a rethink of law reform strategies and offering some conclusions about the role of the international community in the rule of law reform.

Chapter 7: Access to Justice

Michael J. Trebilcock and Ronald J. Daniels

Subjects: development studies, development economics, law and development, economics and finance, development economics, law and economics, law - academic, law and development, law and economics

Extract

I. NORMATIVE FRAMEWORK A. Why “Access to Justice”? The United Nations Development Program (UNDP) suggests that the importance of securing access to justice in developing countries lies in its links with establishing democratic governance and reducing poverty. It finds that democratic governance is undermined where access to justice for all citizens is absent. Access to justice is also closely linked to poverty reduction since being poor and marginalized means being deprived of choices, opportunities, access to basic resources and a voice in decision-making. Lack of access to justice limits the effectiveness of poverty reduction and democratic governance programs by limiting participation, transparency and accountability. In Rethinking the Welfare State, we propose that the normative justifications for state provision of legal services can be broken down into three broad notions: “the importance of equal access to the justice system from the point of view of liberal values and social solidarity; the necessity of access for the survival of the rule of law itself; and the role that the justice system plays in establishing and maintaining patterns of resource distribution.” Although the emphasis here is on the rule of law, it is important to consider the other justifications, as programs providing access to justice draw on all of these rationales. The first rationale for access to justice is that it relates directly to liberal ideals of equal freedom and dignity of individuals. The common law adversarial system, in allowing parties to represent their own cause, is perhaps more often associated with the...

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