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Abstract
Despite the growing attention to and burgeoning literature on legal empowerment, there has been surprisingly little focus on how it might promote greater social justice during political transitions from authoritarianism and from conflict. Such transitions can provide opportunities for challenging structural inequalities and for promoting legal mobilisation. This introductory article provides an overview of legal empowerment before examining its links to peacebuilding and transitional justice.
Acknowledgements
I owe a large debt to Jamie O'Connell whose chapter on legal empowerment and transitions first inspired my interest in this area. I am grateful to the University of York for funding a June 2013 conference on ‘Legal Empowerment in Transitions’ and to all those who took part in that conference. I am also grateful to the Worldwide Universities Network (WUN) which funded both a May 2012 workshop (‘Transforming Post-Conflict Societies: Everyday Violence and Access to Justice’) and my productive, week-long visit to the Chr. Michelsen Institute in Bergen. I want to thank the authors in this special issue for their contributions and for their patience with the lengthy editing process. Finally, I must thank the two reviewers for helpful comments on the articles.
Notes on contributor
Lars Waldorf is Senior Lecturer at the Centre for Applied Human Rights, University of York (UK). He has written numerous publications on transitional justice. He is author of ‘Legal Empowerment and Liberal-Local Peace-Building’ in Matt Saul and James Sweeney, eds, International Law and Post-Conflict Reconstruction Policy (Abingdon: Routledge, 2015) and ‘Legal Empowerment: Between Transitional and Transformative Justice’ in Paul Gready and Simon Robins, eds, From Transitional to Transformative Justice (Forthcoming 2016).
Notes
1 See, for example, Stephen Golub, ed., Legal Empowerment: Practitioners' Perspectives (Rome: IDLO, 2010); Rachael Knight and others, Protecting Community Land and Resources: Evidence from Liberia, Mozambique and Uganda (Washington, DC: Namati and IDLO, 2012); Janine Ubink, ed., Customary Justice: Perspectives on Legal Empowerment (Rome: IDLO, 2011).
2 A few authors have addressed the links between transitions and legal empowerment. See especially Jamie O'Connell, ‘Empowering the Disadvantaged after Dictatorship and Conflict: Legal Empowerment, Transitions, and Transitional Justice', in Legal Empowerment: Practitioners' Perspectives, ed. Stephen Golub (Rome: IDLO, 2010), 113–35. See also Dan Manning, ‘Supporting Stability and Justice: A Case Study of NGO Legal Services in Post-Conflict Bosnia-Herzegovina', in Legal Empowerment: Practitioners' Perspectives, ed. Stephen Golub (Rome: IDLO, 2010), 137–55; Pilar Domingo, Report on Development, Fragility, and Human Rights (London: ODI, 2012).
3 For a good overview, see Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, ‘Promoting the Rule of Law: From Liberal to Institutional Peacebuilding', in Peacebuilding and Rule of Law in Africa: Just Peace? ed. Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman (London: Routledge, 2011), 1–20.
4 See, for example, Pablo de Greiff and Roger Duthie, eds, Transitional Justice and Development: Making Connections (New York: Social Science Research Council and the International Center for Transitional Justice, 2009); Paul Gready and Simon Robins, ‘From Transitional to Transformative Justice: A New Agenda for Practice', International Journal of Transitional Justice 8, no. 3 (2014): 339–61. Jelke Boesten and PollyWilding, ‘Transformative Gender Justice: Setting an Agenda, ‘Women's Studies International Forum (2014), http://dx.doi.org/10.1016/j.wsif.2014.11.001.
5 See, for example, Pilar Domingo, ‘Novel Appropriations of the Rule of Law in the Pursuit of Political and Social Change in Latin America’, in Cultures of Legality: Judicialization and Political Activism in Latin America, ed. Javier A. Couso, Alexander Huneeus and Rachel Sieder (Cambridge: Cambridge University Press, 2010), 254–78; Tshepo Madlingozi, ‘Post-Apartheid Social Movements and Legal Mobilization’, in Socio-Economic Rights in South Africa: Symbols or Substance? ed. Malcolm Langford et al. (Cambridge: Cambridge University Press, 2013); Roberto Gargarella, Pilar Domingo, and Theunis Roux, eds, Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot: Ashgate, 2006), 92–130.
6 See ‘Justice 2015′, http://www.namati.org/justice2015/.
7 Open Working Group on Sustainable Development, ‘Outcome Document’ (2014), 18–19, http://sustainabledevelopment.un.org/content/documents/4518SDGs_FINAL_Proposal%20of%20OWG_19%20July%20at%201320hrsver3.pdf. For an analysis, see Abigail Moy, ‘Taking Stock of the Justice 2015 Campaign’ (25 August 2014), http://www.namati.org/entry/taking-stock-of-the-justice-2015-campaign/.
8 See Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, UN Doc. No. A/67/368, 13 September 2012; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, UN Doc. No. A/68/345, 23 August 2013.
9 Stephen Golub provided an influential definition in 2003: ‘the use of legal services and related development activities to increase disadvantaged populations' control over their lives'. Stephen Golub, ‘Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative', Carnegie Endowment for International Peace (2003), 3. Golub has since refined his definition. Stephen Golub, ‘The Commission on Legal Empowerment of the Poor: One Big Step Forward and a Few Steps Back for Development Policy and Practice', Hague Journal on the Rule of Law 1, no. 1 (2009): 105.
10 Asian Development Bank, Legal Empowerment for Women and Disadvantaged Groups: Final Report (2009), 9–10.
11 The Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone, Vol. 1 (New York: UNDP, 2008), 3.
12 Ibid., 27.
13 Ibid., 28. By contrast, others see legal empowerment as both a process and a goal. See, for example, Golub, ‘Beyond Rule of Law Orthodoxy', 26–7.
14 See, for example, Dan Banik, ‘Legal Empowerment as a Conceptual and Operational Tool in Poverty Eradication', Hague Journal on the Rule of Law 1, no. 1 (2009): 117–31; Matthew Stephens, ‘The Commission on the Legal Empowerment of the Poor: An Opportunity Missed', Hague Journal on the Rule of Law 1, no. 1 (2009): 132–55.
15 Golub, ‘The Commission on Legal Empowerment of the Poor', 105.
16 UN Secretary General, Legal Empowerment of the Poor and Eradication of Poverty, A/64/133 (2009), para. 3.
17 United Nations General Assembly, Legal Empowerment of the Poor and Eradication of Poverty, UN Doc. A/C.2/64/L.4/Rev.2 (3 December 2009), paras 1, 5–7.
18 See, for example, UN Secretary General, Legal Empowerment, paras 4, 24, 68; Commission on Legal Empowerment of the Poor, Making the Law Work, 20, 29, 63, 77; Stephen Golub, ‘What is Legal Empowerment? An Introduction', in Golub, Practitioners' Perspectives, 12–14.
19 Of course, law is sometimes explicitly exclusionary and disempowering. Furthermore, there are socio-political contexts where ‘legal mobilization does not empower'. Pilar Domingo and Tam O'Neil, The Politics of Legal Empowerment: Legal Mobilisation Strategies and Implications for Development (London: ODI, 2014), 58. For opposing perspectives on whether human rights advocates and legal aid lawyers empower the African poor, compare Harri Englund, Prisoners of Freedom: Human Rights and the African Poor (Berkeley: University of California Press, 2006), with Lucie E. White and Jeremy Perelman, eds, Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty (Stanford, CA: Stanford University Press, 2011).
20 Golub, ‘The Commission on Legal Empowerment of the Poor', 108; Banik, ‘Legal Empowerment', 130.
21 Caroline Sage, Nicholas Menzies, and Michael Woolcock, ‘Taking the Rules of the Game Seriously: Mainstreaming Justice in Development – The World Bank's Justice for the Poor Program', The World Bank Justice & Development Working Paper Series No. 7 (2009), 4.
22 Commission on Legal Empowerment of the Poor, Making the Law Work, 1–2. Banik strongly contests that assertion. Banik, ‘Legal Empowerment', 119.
23 Commission on Legal Empowerment of the Poor, Making the Law Work, 4. This linkage to human rights law creates tensions. See Lars Waldorf, ‘Legal Empowerment and Liberal-Local Peace-Building', in International Law and Post-Conflict Reconstruction Policy, ed. Matt Saul and James Sweeney (Abingdon: Routledge, 2015), 229–50.
24 On combining legal tools with social accountability tools, see Vivek Maru, ‘Allies Unknown: Social Accountability and Legal Empowerment', Health and Human Rights 12, no. 1 (2010): 83–93.
25 For a detailed overview, see Asian Development Bank, Legal Empowerment for Women and Disadvantaged Groups, 40–9. See Commission on Legal Empowerment of the Poor, Making the Law Work, 60; Golub, ‘Beyond Rule of Law Orthodoxy', 26.
26 For descriptions of two influential paralegal programmes, see Jackie Dugard and Katherine Drage, ‘“To Whom Do the People Take Their Issues?”: The Contribution of Community-Based Paralegals to Access to Justice in South Africa', The World Bank Justice & Development Working Paper Series No. 21 (2013); Vivek Maru, ‘Between Law and Society: Paralegals and the Provision of Justice Services in Sierra Leone and Worldwide', The Yale Journal of International Law 31 (2006): 427–76. For an assessment of a newer, mobile programme, see Bilal Siddiqi, Law Without Lawyers: Assessing a Community-Based Mobile Paralegal Program in Liberia Rome: International Development Law Organization, 2012).
27 Maru, ‘Between Law and Society', 429–30.
28 Ibid., 456. On cause lawyering, see generally Stuart Scheingold and Austin Sarat, eds, Cause Lawyering and the State in a Global Era (Oxford: Oxford University Press, 2001); Austin Sarat and Stuart Scheingold, eds, The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (Stanford, CA: Stanford University Press, 2005).
29 Asian Development Bank, Legal Empowerment for Women and Disadvantaged Groups, 50–1; Sage, Menzies, and Woolcock, ‘Taking the Rules of the Game Seriously'. See also Vivek Maru, ‘Access to Justice and Legal Empowerment: A Review of World Bank Practice', Hague Journal on the Rule of Law 2 (2010): 259–81.
30 Asian Development Bank, Legal Empowerment for Women and Disadvantaged Groups, 50–1; Golub, ‘Beyond Rule of Law Orthodoxy', 40–1; Stephens, ‘The Commission on the Legal Empowerment of the Poor', 138–9. The activities of integrated legal empowerment initiatives often look less legal and more like voice and accountability efforts. See, for example, Asian Development Bank, Legal Empowerment for Women and Disadvantaged Groups, 13–26.
31 Commission on Legal Empowerment of the Poor, Making the Law Work, 281.
32 Ibid., 329.
33 Ruth Alsop, Mette Frost Bertelsen, and Jeremy Holland, Empowerment in Practice: From Analysis to Implementation (Washington, DC: World Bank, 2006), 1.
34 Ibid., 10–15.
35 Compare for example Martin Gramatikov and Robert B. Porter, ‘Yes, I Can: Subjective Legal Empowerment', Tisco Working Paper Series on Access to Justice, Dispute Resolution, and Conflict System Design No. 8/2010 (2010) with Domingo and O'Neil, Politics of Legal Empowerment, 6, 26–28.
36 For two important programme evaluations, see Asian Development Bank, Legal Empowerment for Women and Disadvantaged Groups; and Knight et al., Protecting Community Land and Resources. Namati is currently conducting empirical research on the impact of paralegal programmes in five countries.
37 Stephens, ‘The Commission on the Legal Empowerment of the Poor', 140. For a particularly critical appraisal of legal empowerment's evidence base, see Benjamin van Rooij, ‘Bringing Justice to the Poor, Bottom-Up Legal Development Cooperation', Hague Journal on the Rule of Law 4 (2012): 304–10.
38 Stephen Golub, ‘Legal Empowerment Evaluation: An Initial Guide to Issues, Methods and Impact’ (March 2012); Laura Goodwin and Vivek Maru, ‘What Do We Know About Legal Empowerment? Mapping the Evidence', Working Paper (Washington, DC: Namati, 2014).
39 Domingo and O'Neil list eight different formulations of legal empowerment. Domingo and O'Neil, Politics of Legal Empowerment, Annex 1.
40 Goodwin and Maru, ‘What Do We Know About Legal Empowerment?’, 9, n.7.
41 Golub, ‘Legal Empowerment Evaluation’, 55.
42 Domingo and O'Neil, Politics of Legal Empowerment, 5–8; Golub, ‘Legal Empowerment Evaluation’, 18–27; Goodwin and Maru, ‘What Do We Know About Legal Empowerment?’, 13–14.
43 Domingo and O'Neil, Politics of Legal Empowerment, 57.
44 Golub, ‘Legal Empowerment Evaluation’, 29–39; Goodwin and Maru, ‘What Do We Know About Legal Empowerment?’, 13–14.
45 Goodwin and Maru, ‘What Do We Know About Legal Empowerment?’, 50.
46 Ibid.
47 Ibid., 20.
48 Domingo and O'Neil, Politics of Legal Empowerment, 59.
49 Ibid., 58.
50 Ibid., 58.
51 Thomas Carothers, ‘The End of the Transition Paradigm', Journal of Democracy 13, no. 1 (2002): 1–21.
52 See Paul Richards, ed., No Peace, No War: An Anthropology of Contemporary Armed Conflicts (Columbus: Ohio University Press, 2004).
53 See, for example, Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford: Oxford University Press, 2008).
54 See Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (University Park, PA: The Pennsylvania State University Press, 2010).
55 See Paul Collier, Anke Hoeffler, and Mans Soderbom, ‘Post-Conflict Risks', Working Paper Series #WPS/2006–12, Centre for the Study of African Economics, University of Oxford (2006).
56 Domingo and O'Neil, Politics of Legal Empowerment, 43–5.
57 Ibid., 58.
58 Roberto Gargarella, Pilar Domingo, and Theunis Roux, ‘Courts, Rights and Social Transformation: Concluding Reflections', in Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?, ed. Roberto Gargarella, Pilar Domingo, and Theunis Roux (Farnham: Ashgate, 2006), 256.
59 For a fuller account of this relationship, see Waldorf, ‘Legal Empowerment and Liberal-Local Peace-Building’.
60 See, for example, Susanna Campbell, David Chandler, and Meera Sabaratnam, eds, A Liberal Peace? The Problems and Practices of Peacebuilding (London: Zed Books, 2011).
61 For a useful overview, see Roland Paris and Timothy D. Sisk, eds, The Dilemmas of State Building: Confronting the Contradictions of Postwar Peace Operations (Abingdon: Routledge, 2009).
62 See, for example, Pádraig McAuliffe, Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (London: Routledge, 2013), 44–9; Sriram, Martin-Ortega, and Herman, ‘Promoting the Rule of Law', 1–19.
63 For an overview, see Robert A. Pulver, ‘Rule of Law, Peacekeeping and the United Nations', in Peacebuilding and Rule of Law in Africa: Just Peace?, ed. Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman (Abingdon: Routledge, 2011), 60–87. A more critical assessment is provided by Bruce Jones and Camino Kavanagh, Shaky Foundations: An Assessment of the UN's Rule of Law Support Agenda (New York: Center on International Cooperation, 2011), 54–6.
64 James H. Anderson, David S. Bernstein, and Cheryl W. Gray, Judicial Systems in Transition Economies: Assessing the Past, Looking to the Future (Washington, DC: World Bank, 2005), xiv. See McAuliffe, Transitional Justice and Rule of Law Reconstruction, 16–22.
65 For overviews, see Erik G. Jensen, ‘Justice and the Rule of Law', in Building States to Build Peace, ed. Charles T. Call (London: Lynne Rienner, 2008); Jeremy Farrall, ‘Impossible Expectations? The UN Security Council's Promotion of the Rule of Law after Conflict', in The Role of International Law in Rebuilding Societies after Conflict: Great Expectations, ed. Brett Bowden, Hilary Charlesworth, and Jeremy Farrall (Cambridge: Cambridge University Press, 2009), 134–56.
66 Thomas Carothers, ‘The Problem of Knowledge', in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington DC: Carnegie Endowment for International Peace, 2006), 21. This approach has been critiqued as ‘institutional mono-cropping’ or ‘isomorphic mimicry'.
67 Stephen Golub, ‘A House without a Foundation', in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington DC: Carnegie Endowment for International Peace, 2006), 105.
68 Laura Grenfell, Promoting the Rule of Law in Post-Conflict States (Cambridge: Cambridge University Press, 2013), 4.
69 Frank Upham, ‘Mythmaking in the Rule-of-Law Orthodoxy', in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington DC: Carnegie Endowment for International Peace, 2006), 75–6; Balakrishnan Rajagopal, ‘Invoking the Rule of Law: International Discourses', in Civil War and the Rule of Law: Security, Development and Human Rights, ed. Agnès Hurwitz (Boulder CO: Lynne Rienner Publishers, 2008), 47.
70 Roger Mac Ginty, International Peacebuilding and Local Resistance: Hybrid Forms of Peace (Basingstoke: Palgrave Macmillan, 2011); Oliver P. Richmond and Audra Mitchell, eds, Hybrid Forms of Peace: From Everyday Agency to Post-Liberalism (Basingstoke: Palgrave Macmillan, 2012).
71 Banik, ‘Legal Empowerment', 129.
72 Commission on Legal Empowerment of the Poor, Making the Law Work, 1–2, 6–7, 52. As one critic notes, ‘What is needed first is not an extension of formality, but rather a complete reconfiguration of the relationship of the poor with the law.’ Stephens, ‘The Commission on the Legal Empowerment of the Poor', 134.
73 Commission on Legal Empowerment of the Poor, Making the Law Work, 5.
74 Ibid., 42.
75 United Nations Development Programme, Legal Empowerment Strategies at Work: Lessons in Inclusion from Country Experiences (2014). Only one country discussed in that report, Tajikistan, can be considered post-conflict.
76 For a fuller account of this relationship, see Lars Waldorf, ‘Legal Empowerment: Between Transitional and Transformative Justice', in From Transitional to Transformative Justice, ed. Paul Gready and Simon Robins (Forthcoming 2016).
77 United Nations Secretary General, The Rule of Law and Transitional Justice, UN Doc. S/2004/616, (2004), para. 8.
78 Chandra Lekha Sriram, ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice', Global Society 21, no. 4 (2007), 579–91.
79 McAuliffe, Transitional Justice and Rule of Law Reconstruction; Ruti G. Teitel, Transitional Justice (Cambridge: Cambridge University Press, 2000), 11–26.
80 Kieran McEvoy, ‘Letting Go of Legalism: Developing a “Thicker” Version of Transitional Justice', in Transitional Justice from Below: Grassroots Activism and the Struggle for Change, ed. Kieran McEvoy and Lorna McGregor (Oxford: Hart, 2008), 25–8.
81 See, for example, Simon Robins, Families of the Missing: A Test for Contemporary Approaches to Transitional Justice (Abingdon: Routledge, 2013).
82 See, for example, Dustin N. Sharp, ed., Justice and Economic Violence in Transition (New York: Springer, 2014); Louise Arbour, ‘Economic and Social Justice for Economies in Transition', New York University Journal of International Law and Politics 40, no. 1 (2007): 1–27.
83 United Nations Secretary General, The Rule of Law and Transitional Justice, UN Doc. S/2011/634 (2011).
84 Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, UN Doc. No. A/67/368, 13 September 2012; Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, UN Doc. No. A/68/345, 23 August 2013.
85 Domingo, Report on Fragility, Development and Human Rights, 20.
86 For a fuller critique of this silo-isation, see Domingo and O'Neil, Politics of Legal Empowerment, 42, n. 60.
87 Gargarella, Domingo, and Roux, ‘Concluding Reflections', 256.
88 Domingo and O'Neil, Politics of Legal Empowerment, 42.
89 See, for example, Simon Robins, ‘To Live as Other Kenyans Do’: A Study of the Reparative Demands of Kenyan Victims of Human Rights Violations (New York: International Center of Transitional Justice, 2011); Patrick Vinck and Phuong Pham, ‘Ownership and Participation in Transitional Justice Mechanisms: A Sustainable Human Development Perspective from Eastern DRC', International Journal of Transitional Justice 2, no. 3 (2008), 404.
90 KADEM, Accounting for the Past in Tunisia: An Assessment of Accountability and Transitional Justice Expectations and Perceptions across the Country (Tunis: KADEM, 2013).
91 For a fuller discussion of these concerns, see Lars Waldorf, ‘Anticipating the Past: Transitional Justice and Socio-Economic Wrongs'. Social and Legal Studies 21, no. 2 (2012): 171–86. For a rejoinder, see Evelyne Schmid and Aoife Nolan, ‘“Do No Harm?” Exploring the Scope of Economic and Social Rights in Transitional Justice', International Journal of Transitional Justice 8, no. 3 (2014): 362–82.
92 Gready and Robins, ‘From Transitional to Transformative Justice’, 339–61.
93 As the Overseas Development Institute's June 2014 report noted, ‘Research connecting experiences of legal accountability in relation to legal empowerment and legal mobilization is mostly poorly developed.’ Domingo and O'Neil, Politics of Legal Empowerment, 42, n. 63.
94 O'Connell, ‘Empowering the Disadvantaged', 119.
95 See Pablo de Greiff, ‘Justice and Reparations', in The Handbook of Reparations, ed. Pablo de Greiff (Oxford: Oxford University Press, 2006), 451–77.
96 International Center for Transitional Justice, The Rabat Report (New York: ICTJ, 2009).