1. Making the case
for people-centred justice

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

Reforming justice: moving up the policy agenda

Conflicts are an inevitable part of life. Preventing disputes, and managing them carefully, is the daily business of courts, government agencies, and political institutions. Professionals in conflict resolution are helping people who are mired in disputes about land, family conflicts, or work or environmental issues. The civil justice system provides formal procedures. Judges, lawyers, social workers, and other “justice practitioners” often resort to informal negotiation or mediation as well.

Government officials need to make decisions on how best to use land or to allocate access to public services. They have to do this following the rules of administrative procedure, which is the formal framework for reconciling the needs of the people, the natural resources available on the planet, and the pursuit of profit by enterprises on the basis of a nation’s laws. Within this framework, or as an alternative approach, they use many types of informal processes for participation and achieving consensus (Bernstein and Rodriguez 2022).

In case of violence, theft or fraud, police and prosecutors apply the rules of criminal procedure. This is the primary way to protect victims, sanction perpetrators, and restore harmony in the community. Like their colleagues in government agencies and the practice of civil justice, these justice practitioners often turn to informal or alternative ways to enable people to cope with the consequences of crime.

Often, justice practitioners struggle to support people who seek access to justice. Formal procedures tend to be slow and bureaucratic. Informal processes are not well organised. What happens during negotiations in the corridors of power is not transparent. Government agencies and business owners complain about tedious administrative procedures which makes it hard for them to reconcile environmental challenges and economic progress. All pillars of the justice system tend to be overburdened. Only a minority of victims receive adequate intervention from criminal justice systems. Those causing harm are seldom treated in the ways that are most likely to prevent future crime or help victims to recover. Too often, only those with power, money, or extreme determination can handle the complexity of justice procedures, thereby opening the doors to inequality and corruption.

Survey data on justice needs are widely available and can support the potential for a rigorous R&D effort to improve justice systems. The World Justice Project, HiiL, and other research groups have collected data on justice problems, impact, and justice journeys in more than 100 countries (World Justice Project n.d.-b). The general trend is 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 (World Justice Project 2019). The unmet demand for justice is striking.

In sum, justice systems need to do a better job of serving their people and justice practitioners need better tools to solve conflicts. Leaders across the world acknowledge the need to upgrade legal systems. During the 2010s, the World Bank financed justice sector reforms through multi-million dollar loan agreements in Azerbaijan, Kazakhstan, Kenya, Morocco and Peru, to name just a few (World Bank n.d.). The European Commission and United Nations Development Programme (UNDP) have supported reforms in civil and criminal justice (European Commission n.d.; UNDP n.d.). The United Nations Office on Drugs and Crime (UNODC) coordinated efforts to improve standards in criminal justice (UNODC 2016). UN Habitat developed methods to prevent and resolve problems related to land and housing (UN Habitat n.d.; UN Habitat 1999).

In Canada and elsewhere, chief justices support task forces and think tanks on access to justice (The Canadian Bar Association 2021). Many countries in Africa and Latin America have justice sector development plans (Republic of Uganda n.d.; Republic of Kenya n.d.; Government of Brazil 2021). 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 ambitious new justice services.

Political agendas vary but many reform efforts go in similar directions. Reforms span the globe and have been initiated under a broad variety of democratic and autocratic regimes. Canada is leading online-supported adjudication (HiiL 2022c). Argentina and France have invested in houses of justice (Government of Argentina n.d.; French Republic n.d.). 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 informal local courts tasked to resolve disputes (Hendley 2017). 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 in the United States, his successor Donald Trump signed the First Step Act, which aims to improve the rehabilitation of offenders and the protection of victims (Wikipedia 2022). Governments in Italy, Germany, and the Netherlands promise justice system reforms in coalition agreements. Political parties may have different priorities – being tough on crime; providing access to justice for the disadvantaged; securing economic growth based on private initiative; preserving the environment; or serving the police and the legal profession as powerful constituencies – but even so, improvements can be agreed upon.

Each of the 47 member countries 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 (Organisation of American States n.d.). To address large-scale injustices, countries have set up truth and reconciliation commissions or special tribunals that are tasked with finding solutions for injustices and preventing them from recurring.

View Additional Information

Some examples of task forces with ambitious strategies are Michigan Justice for All Commission, 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. Find more examples of task forces from across the globe that work on access to justice on the National Centre for State Courts website. It includes the Access to Justice Committee of the Law Council of Australia, Access to Justice Asia, Access to Justice in China, United Nations Development Project Tajikistan, and the Japan Federation of Bar Associations. aims to make the civil justice system more accessible, effective and sustainable by supporting citizen-centred initiatives.

People-centred and evidence-based reform

Not all reform efforts have been successful, however. Several have been temporary and many law reform commissions have lost their momentum. Programmes have been criticised for spending too much on legislation, on the construction of courthouses, or on police training. Reform agendas contain long lists of findings and recommendations, but are not always specific on how these can be prioritised or implemented. Thousands of local pilot programmes fail to scale. Task force leadership is often dominated by people trained as lawyers, which is reflected in reports calling for changes in legislation and budget increases for legal institutions.

Upgrading justice systems is increasingly seen as a shared challenge. Peaceful and inclusive societies, with access to justice for all and effective, accountable and inclusive institutions, are a UN Sustainable Development Goal. Reports by the European Commission for the Efficiency of Justice (CEPEJ) – the Council of Europe organisation that collects justice system data – show considerable differences in the way justice systems are organised, funded and scaled (CEPEJ 2020). The European Union offers the following best practices on justice reform and cooperation with partner countries.

EU best practices on justice reform

Legal empowerment: People, especially vulnerable groups, need to be aware of their rights and the services at their disposal.
Equal access to justice: We need to ensure that everyone, irrespective of where they are located, has access to justice. This 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 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, 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 that impair justice delivery 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 needs to be set in order 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, but 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 is that reform should be people-centred and evidence-based. The OECD, the Open Government Partnership, Pathfinders for Justice, The Elders, the European Union, and USAID are among those leading the efforts to develop people-centred justice approaches (OECD 2021; Open Government Partnership 2019; The Elders, n.d.; European Commission n.d.; USAID 2022). They are supported by an increasing number of country governments forming the Justice Action Coalition (Justice Action Coalition 2022). Another main player is the International Institute for Democracy and Electoral Assistance (IDEA), the intergovernmental organisation that works on developing inclusive and accountable institutions (Government of Canada 2021). IDLO and UNDP, the leading international legal development cooperation organisations, have developed people-centred rule of law strategies, informed by specialists in law and development from ODI and IDRC (IDLO 2020; UNDP 2021; Manuel and Manuel 2021; IDRC 2022).

The policy briefs and strategies produced by these experts have a number of common elements. People-centred legal and justice services should be based on and respond to an empirical understanding of the legal needs and legal capabilities of those who require or seek assistance (OECD 2021). People-centred justice should be available across the justice chain and provided in a range of formats, programmes, and services types. Prevention of injustice, proactivity, and timeliness are key in this paradigm. The system should provide seamless referrals and integrated services through collaboration between legal, justice, and other service providers. People should be able to access all the services they need to solve the legal and related non-legal aspects of their problems. Regardless of the entry point for assistance, they should receive appropriate treatment for their problem. People-centred justice services should be continually improved upon through evaluation, evidence-based learning, and the development and sharing of best practices.

A new paradigm requiring a major transition

This approach is different from how legal systems have traditionally been reformed. Until now, even the most effective task forces have relied on piecemeal reforms that current legal institutions allow for. At present, politicians must propose laws and procedures, hoping they will be accepted by legislative bodies and that justice practitioners will implement them in individual cases. Judges can decide cases by applying, and sometimes tweaking, the law in order to make it more responsive. Reformers can hope that lawyers turn to processes that are more likely to lead to fair and sustainable settlements. They can advocate that litigation becomes more focused on effective solutions for conflicts and less costly. People may become more effective in helping themselves or their fellow citizens in a variety of informal justice processes that are sometimes half-formalised, such as mediation or ombuds procedures. Local leaders experiment with participatory democracy or with new forms of decision-making on major projects in their community. NGOs distribute information on people’s rights and offer to help victims.

Progress in governance and effective conflict resolution systems is thus dependent on individuals trying to introduce change. They do so in a setting of broad constitutional checks and balances, but in which there is no mechanism to ensure systematic progress towards better outcomes. Institutional accountability as described by the EU in its policy document is also lacking.

In this report, we explore the answer to this much bigger reform challenge. We explore how a next generation of task forces could launch and manage the systematic R&D and innovation needed to implement people-centred justice in a country based on the recommendations of the many policy briefs and strategies that are building the paradigm. For instance, reform agendas need to have both state-of-the-art ways to measure outputs, outcomes and impact of the most pressing justice problems and a results-based approach with clear objectives. Neither is commonly found in the justice sector. Research and an evidence-based working approach when interacting with parties in a justice problem should be combined with systematic improvements in the delivery and scaling of justice services. The service delivery approach requires coordination between broad national programmes and local institutions. Traditional justice mechanisms can work alongside formal courts. Political dialogue – in which high-level participants take ownership of and accountability for justice institutions – in combination with regulatory and financial regimes that stimulate and support continuous innovation are also needed.

Making the case for systematic programming: speaking to the heart

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

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 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, and the ways to achieve it, are emotionally more complex than injustice. Justice comes from being heard, feeling respected, obtaining remedies, and sharing resources fairly (Sabbagh and Schmitt 2016). Assuming responsibility for one’s role in an injustice, forgiving someone who caused harm, preventing future harm or exacting retribution, these are moral choices that can be confusing (Carlsmith and Robinson 2002). 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. This is when the complex task of delivering justice really begins. Detectives don’t work on rehabilitation. You don’t see them working with youth in poor neighbourhoods to prevent crimes.

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. In a world full of discord and polarisation, the need to agree on a peaceful way forward can be emphasised.

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

In our projects, we encounter many reasons to consider people-centred justice programming. Change-makers and their funders mention the following qualitative reasons to support justice programmes: 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.

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 annual burden of particular types of justice problems can help make the case for investment. This 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 using data on self-reported severity, consequences (for example, violence, loss of income, stress-related illness), and money and time spent on resolution. The cost of state resources used to address these justice problems should be factored in as well.

This is how such a calculation might look. In a typical city or state with a population of 8 million, 1 million people on average will experience a pressing justice problem annually. Of these, 500,000 problems will have a major negative impact. If the average negative impact of a land problem in an African country of 8 million people is estimated to be $1000, and the resolution rate is 30%, the burden of land injustice in this country can be quantified at approximately $90 million per year (see the numbers in the infographic, based on HiiL 2018).

Quantifying the potential 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 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 those focussed on GDP; greater fairness will improve well-being.

The growing body of literature has revealed a variety of ways in which programmes have quantified the size of the social and economic benefits of justice system interventions (Moore and Farrow 2019; Weston 2022). For instance, the Dutch Ministry of Justice and HiiL asked Ecorys, an economic advisory agency, to calculate the economic and social benefits of achieving 80% resolution rates to justice problems in the Netherlands. We defined this as 80% of justice problems being resolved either by agreement or by a decision in a way viewed as sufficiently fair by the person who experienced the problem. The calculation was based on an extrapolation from three justice problems: separation, work conflict, and access to social security/services.

Ecorys estimated a 0.15% contribution to GDP of increasing the resolution rate to 80% (Ecorys 2021). This excludes export opportunities for justice services and improvements in the national investment climate through better access to justice. $1 successfully invested is projected to lead to $4 saved on transaction costs (the resources spent on attempting resolution) and a $14 gain in productivity (the increased productivity if people involved can devote their attention to other activities then trying to cope with the impact of conflict). On top of this contribution to GDP in the narrow economic sense, the calculation yielded contributions to well-being: a $51 gain in quality of life and $10 saved in public services costs (including the costs of health care).

There are also the economic and environmental gains of faster, more effective procedures to resolve conflicts regarding allocation of land to various types of use. The interests of current populations, of future housing needs, transportation requirements, water management, nature, and entrepreneurial activities need to be reconciled. In theory, the costs and benefits of projects can be assessed, with overall beneficial projects approved, provided there are adequate measures protecting the interests at risk, or that there are adequate compensatory measures for those interests that cannot be fully protected. In practice, this decision making is often slow and can be frustrated by litigation tactics of a small group. People who are affected face considerable bureaucratic barriers when they try to be heard. Comparative administrative law, which should lead to the systematic assessment of what works best when organising these processes, is at an early stage of describing different systems (Pünder 2013; Asimow 2015). Initial exploratory research should be followed by systematic research and development, and broad implementation of innovations.

The calculations above do not provide final answers. The economic modelling of the benefits of conflict resolution and accessible justice is at an early stage. It can be improved with better data collection and continued testing of assumptions. The negative effects of unresolved justice problems have to be quantified in more detail, allowing for individual coping strategies. Some people move on from their problems, while others feel resentment and report more significant consequences; for example, violence, damage to relationships, loss of time and money, stress, and other health issues.

Failing to create credible pathways to peaceful, inclusive societies is a high-risk gamble

When justice institutions fail to give people a voice and provide remedies, this contributes to feelings of frustration and neglect among communities. Governments around the world rightly see this as a threat to stability. Ministries of justice experience this as a variety of challenges that became apparent during a ministerial meeting in 2020.

A ministerial meeting on people-centred justice

In October 2020, ministers of justice representing 20 countries gathered for a meeting co-hosted by Pathfinders for Justice, the OECD, and the Open Government Partnership to share their experiences in dealing with the COVID-19 crisis (Muller 2020). The ministers sought to ensure the safety of justice practitioners in their respective ministries. They shared concerns about budgets and how they worked hard to maintain the proper functioning of existing procedures.

COVID-19 outbreaks in prisons, for example, forced them to take tough decisions.Some of the ministers alluded to a desire for deeper innovation. They sensed there was little to be gained from locking up additional people. They looked beyond their own ministry for cooperation with civil society. All ministers shared experiences about moving justice services and delivery online. The Belgian minister proposed a ‘giant leap’ – to build a single digital platform through which citizens could access all justice services. Latvia is working on this already. The private sector can help the public sector bring these digital solutions to scale, drawing inspiration from the way innovation and scale has been achieved in the health sector.

Frustration with complex procedures has made ‘simplifying procedures’ an increasingly popular mantra. Ministers of Justice are also increasingly focused on broadening, decentralising, and expanding legal help through collaboration with civil society organisations.

The COVID-19 crisis also revealed a lack of preparedness on the part of ministries to adapt their services. Much was learned on how to implement changes quickly. Procedural rules were changed in a matter of days. Because ministers had to do all of this during the early months of 2020, the value of sharing international best practices became more apparent. More generally, ministers are looking for solutions that have proved to be effective elsewhere.

The underlying challenges and patterns suggest systemic risks. Conflict prevention and resolution are what societies hope to achieve by promoting the rule of law. Worldwide trends suggest that not taking this task as seriously as other sustainable development goals is a high-risk gamble. In 2021, only two of the world’s 25 most populous countries saw improvements in the World Justice Project Rule of Law Index: Germany and the Democratic Republic of Congo (World Justice Project 2021). According to the V-Dem Institute (2022), only 4% of countries are on track to improving democracy. V-Dem uses a broad, people-centred definition of democracy that includes electoral democracy, rule of law and protection of rights, participatory democracy, and deliberative democracy. The results are an indicator of societies’ conflict resolution capabilities.

V-Dem’s data show not only a strong trend towards more autocratic regimes, but also how difficult it is for countries to move towards greater participation, dialogue, inclusiveness, and accountability. When democratic governments cannot deliver on peace, inclusivity and access to justice, elected autocrats provide the only alternative for voters. The world urgently needs credible pathways towards people-centred, inclusive, and well-functioning justice systems. Rigorous R&D and innovation can guide a gradual transition towards systems of governance that can resolve conflicts in a peaceful, inclusive, accessible, and equal manner.

Assessing the current system

Another way to make the case for people-centred justice is to assess how justice sector institutions are perceived by the population and justice practitioners.

In our 2018 Trend Report ‘Understanding Justice Needs: The elephant in the courtroom’, we suggested a low-cost and simple way to diagnose the condition of the current system. It can be applied to a national justice system, to a single institution, or to the supply chain of one type of justice problem.

9 indicators for assessing urgency

Backlogs: Are they decreasing 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 does successful access depend on money, stamina and other resources?
Motivation: Is the motivation of front line justice practitioners increasing or decreasing?
Workload per case: Are adversarial processes increasing or decreasing the workload over time?
Digitisation: 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 the work is done and try to attract more cases to help people more effectively?
Support: What percentage of citizens is willing to support the courts and justice sector institutions, and believe the system will solve their problems?
Funding: To what extent can donors and Ministries of Finance be convinced to invest in better justice services?

In India, Tata Trust (2020) sponsored an assessment of the capabilities of the justice institutions in each state. The indicators, which were collected in 2019, were not positive and were summarised in a strongly-worded message:

Sadly, taken collectively the data paints a grim picture of justice being inaccessible to most. Findings highlight that each individual subsystem is starved for budgets, manpower and infrastructure; no state is fully compliant with standards it has set for itself; gender and diversity targets are improving only sluggishly, and are not likely to be met for decades; and governments are content to create ad hoc and patchwork remedies to cure deeply embedded systemic failures. Inevitably, the burden of all this falls on the public.

Signals of system stress may help convince individual leaders in the justice sector to take action. Whether a negative assessment motivates funders or outsiders to help, on the other hand, remains to be seen. A negative appraisal, and a sense of crisis, may also lead to denial or resignation. In 1974, the US government created the Legal Services Corporation to address the nationwide access to justice crisi. Numerous task forces have since used this language. If a crisis continues for half a century, is it really a crisis? Or is it a disease with no cure 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 a crisis – and an explanation of how a task force can identify and facilitate them – need to be provided. At present, newly established task forces can benefit from a growing body of knowledge on how to position the need for justice reform.

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