Vol. 14 No. 4 (April 2004)
BEYOND COMMON KNOWLEDGE: EMPIRICAL
APPROACHES TO THE RULE OF LAW, by Erik G. Jensen and Thomas C. Heller
(eds.). Stanford: Stanford University Press, 2003.
435 pp. Cloth $70.00. ISBN: 0-8047-4802-0.
Reviewed by Rosemary Hunter, Griffith
Law School, Griffith University.
Email: Rosemary.Hunter@griffith.edu.au.
The title of this book, BEYOND COMMON
KNOWLEDGE, refers to the oft-repeated mantra of law and society scholars
that assumptions about law and legal institutions and how they operate
are frequently revealed by empirical research to be untrue. At the same time, empirical research can
provide insights that would be otherwise unavailable. Some, but not all, of the essays in the
book make or demonstrate these points.
The subtitle, EMPIRICAL APPROACHES TO THE RULE OF LAW, also describes
some but not all of the essays in the book. Most deal with judicial reform programs of one sort or another,
but not all of these are motivated by or related to promotion of the rule
of law. The subtitle seems
rather to have been dictated by the fact that the book was generated by
Stanford Law School’s Rule of Law Program. The essays also take a variety of empirical “approaches,” variously
advocating empirical study of courts, presenting empirical data about
court systems, or making more abstract arguments about justice systems
or judicial reform, drawing upon empirical data (or the lack thereof)
to illustrate their points.
As well as this considerable variety,
the essays are of somewhat uneven quality.
The two best pieces in the book are by Linn Hammergren and Fu Hualing.
Fu’s essay is informative, persuasive and well-structured. He poses the question “is the Chinese
judiciary independent, competent, and fair?” and proceeds to demonstrate
that the answer varies depending on the type of case being discussed. This, in turn, is due to the fact that
different types of cases occur within different institutional structures
and have varying political significance.
Hammergren’s comprehensive essay on “International Assistance to
Latin American Justice Programs” presents a devastating critique of donor
agencies’ judicial reform projects.
She catalogues a host of structural problems that create all sorts
of perverse incentives and result in millions of dollars being spent on
projects of questionable value.
Moreover, agencies’ thinking about what the projects they promote
are designed to achieve appears to be vague and confused and is rarely
subject to empirical validation.
Hammergren asks the pertinent questions-“are the right developments
being leveraged?” and “what are the opportunity costs of justice reforms
as opposed to spending in other sectors?”-to which the agencies simply
do not have satisfactory answers. The essay is a compelling call for USAID,
the World Bank, the IDB, the UNDP, and their ilk to fundamentally rethink
their activities in this area.
The weakest essay, unfortunately, is
the opening chapter by José Juan Toharia on “Evaluating Systems of Justice
Through Public Opinion.” Toharia
argues that courts’ performance should be assessed by public opinion surveys,
on the rationale that courts are service providers (an assertion not subjected
to any scrutiny or consideration of other roles and possible priorities
the courts may have). According
to Toharia, “In a citizen-oriented system of justice, [users’] opinions
and evaluations should be a primary source of information on the quality
of judicial services” (p.24). At the same time, Toharia dismisses the
views of “expert” professionals working in and around the courts as biased,
tainted by vested interest, and emotionally and ideologically attached
to the status quo. Such sweeping generalisations do little to advance understanding.
Moreover, Toharia fails to observe or
examine the fact that public opinion is a constructed phenomenon. For example in Australia at present, courts
are at the centre of national political debates on issues such as law
and order, Indigenous land rights, refugee policy, and family breakdown,
and have been consistently attacked by politicians and the tabloid press. Public opinion polls on the performance
of those courts would tell us everything about the state of debate but
nothing about how “well” the courts are operating. Majority condemnation of a court might indicate that it is
effectively doing its job of protecting the socially vulnerable and upholding
minority rights. To be fair,
the examples Toharia cites are in democratising countries, such as post-Franco
Spain and post-Communist central and eastern Europe. However he also draws upon evidence from the European Union
more generally, and his argument purports to be universal rather than
confined to particular political junctures.
Toharia does acknowledge that there are potential “communication
problems” between courts and the public, and argues that courts need better
communication strategies. But
if this were to occur, would it mean that public opinion polls simply
provide a measure for the success of courts’ PR strategies? This frustratingly circular essay ends with a detailed technical
discussion of how to design suitable questions and conduct a survey, which
is out of place in the context of the rest of the book.
The book is structured as a series of
paired essays - two on Europe, two on India, two on China, two on Latin
America, and two on the “rule of law” activities of international donor
organisations. The last essay is an “Immodest Postscript”
by one of the book’s editors, Tom Heller, which also focuses on international
donors’ judicial reform projects. It is interesting that none of the essays take US courts or
justice systems as their subject, although some of the essays hold up
US models as implicit or explicit comparators.
Presumably this is because US courts are a model for, rather than
the object of, “rule of law” programs, although the same might be said
for European courts. There
is a tendency for the book to assume that readers know how the US courts
function but need to be instructed about the differences and peculiarities
of foreign legal systems. As
many US law and society scholars have demonstrated, however, empirical
research has also shown the operation of US legal institutions to be “beyond
common knowledge.”
Sometimes points are made that could
apply equally well to the domestic context.
For example, Marc Galanter and Jay Krishnan, in discussing the
Indian dispute resolution institution known as LOK ADALATS, coin the term
“debased informalism” to refer to dispute resolution processes that “are
commended not by the virtues of the alternative process but by the need
to escape the formal institutional process” (p.116).
This is a fair point, but is it an exclusively Indian, or developing
world, phenomenon? The description certainly rings many bells
in my experience. How is
it different from settlement processes or diversion to court-annexed mediation
in the US? Is there really
any such thing as undebased informalism?
And where is Galanter and Krishnan’s prescription for a good informal
system paired with a good formal system actually in place?
Similarly, Donald Clarke argues that
Western reform projects on the Chinese legal system have tended to be
based on unfounded assumptions about the importance of courts in the Chinese
legal system, and the importance of the legal system in the Chinese polity. Clarke notes that other institutions such
as the procuracy, legal affairs offices, legal services and mediation
and arbitration schemes play at least as important a role as the courts,
if not more so, but this observation about the importance of justice institutions
other than the courts could apply with the same force to Western systems.
There are few connections made between
the pairs of essays, or between essays dealing with different systems. For example, after Galanter’s and Krishnan’s
rich essay on Indian LOK ADALATS, which discusses their place in the legal
system, their processes and outcomes, and possible alternatives that might
achieve more satisfactory results, Robert Moog’s piece on Indian tribunals
comes across as rather thin. Fu
Hualing uses three criteria to assess the performance of the Chinese judiciary
- independence, fairness and competence - while Hector Fix-Fierro uses
five criteria to assess Mexican judicial reforms - independence and accountability,
efficiency, accessibility, and competence. Some of the chapters are attentive to
the politics of reform (e.g. Fix-Fierro), and some to the economics (e.g.
Heller). Carlos Pe–a Gonz‡lez’
essay on judicial reform in Chile does both, but does not attempt to draw
together these two approaches into an integrated conclusion. Thomas Heller’s
final chapter presents a very dense analysis of why both the US (judicial
capacity building) and European (strengthening judicial independence)
approaches to rule of law reforms have produced disappointing results. Heller’s prescriptions arising from this
analysis are influenced by law-and-economics, involving more internal
legal competition (e.g., via domestic federalism, strong ADR mechanisms),
and better incentives to disrupt current practices. It might have been interesting to test these proposals against
the chapters on India or China.
So what do these disparate essays have
in common? For one thing,
it appears that empirical approaches are a largely masculine domain. Only one of the book’s chapters is written
by a woman (Hammergren). Secondly,
there are a series of institutional connections between the book’s authors,
and here I must declare my own implication in this network.
Having studied at Stanford, consulted for the World Bank, and been
a member of the Research Committee on Sociology of Law, I have been taught
by, worked with, am otherwise acquainted with or at least familiar with
the work of most of the authors, as well as two of the commentators whose
endorsements adorn the back cover. It’s a small, globalised world.
One potential virtue of the diversity
of this book is that it might thereby attract a wider audience than a
more focused collection might have done.
There is something in here of interest to a large number of scholarly
constituencies - from Erhard Blankenburg’s detailed statistical comparison
of European justice systems, to Erik Jensen’s thick and thin definitions
of the “rule of law,’ and everything in between.
The essays are all thought-provoking, and in some cases really
excellent. And importantly, they add to the very
limited stock of published and accessible empirical data on world legal
systems.
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Copyright 2004 by the author, Rosemary Hunter.