Trend Report | Part 1 - HiiL

More recently researchers and reports have begun to focus on new approaches, more bottom up,
working from the problems people actually experience and from their capabilities. Besides doing many
projects and evaluating practices, the UNDP is setting up knowledge networks around legal
empowerment and the World Bank created a Global Forum on Law, Justice and Development.
Governmental organizations and NGO’s such as Open Society Justice Initiative, Oxfam, Amnesty
International, DGZ, USAid, OAS and the Asian Development Bank developed successful programs and
interventions. Many of these programs are now focusing our attention on better legal information, on
lower cost services by paralegals and on specialized services for women and other disadvantaged groups.
We will call these initiatives justice needs approaches, because they have in common that they start from
the actual problems that people experience and their capabilities to solve them. These capabilities are
then strengthened. This can be done by local initiatives, which some proponents of bottom up reform are
arguing for. But, as we will show in this report, justice needs approaches can also be scaled up across
borders, and stimulated by new types of codification, precisely because they start from people’s
problems and not from the laws or the legal system that has been built in their country.
Among the many initiatives, it is not easy to distinguish between the more promising ones and those that
have less chance of being successful. Basic criteria for setting priorities and shared evaluation criteria for
justice needs approaches are still lacking. 6 With some notable exceptions, discussed in this report,
projects tend to be small, serving 1000s of people rather than millions,
and have difficulty scaling up. Many subsidized - free - legal services are offered, but it has been hard to
find funding models that are more sustainable.
Although justice needs approaches have justice needs and capabilities as a common starting point, no
shared vision has yet developed where to go from here. One of the advantages of the top down
strategies is that the vision behind it is clear. Rule of law and access to justice meant good laws and high
quality enforcement. Strategy was thus a matter of writing better laws, arguing for better case law from
courts, and letting lawyers, judges and police enforce the law. That can be planned, budgeted, prioritized
and done. Processes were also clear, because any problem occurring can be reframed as a grievance
about non compliance with a law (see box Grievance and Remedies).
Grievances and Remedies
A common way to picture the process of access to justice is to see it as a process from a grievance to a remedy that
follows five steps, and where each step is supported by activities from (legal) professionals. 7
Recognition
< Legal protection (by laws)
Awareness
< Legal awareness
Claiming
< Legal aid and counsel
Adjudicating
< Adjudication
Enforcing
< Enforcement and civil society oversight
6 See: UNDP, Making the Law Work for Everyone (Report of the Commission for Legal Empowerment of the Poor), Part
II, Chapter 5 (2008) and Hague Journal on the Rule of Law (2011), Issue 2 for the state of the art.
7 This model has been developed first by Felstiner, Abel & Sarat, The Emergence and Transformation of Disputes:
Naming, Blaming, Claiming… (1981), 15 L. & Soc’y Rev. 630, 630-649. It has been adapted later, and is often used in
the so-called human rights based approach to access to justices, see the much cited: UNDP, Access to Justice, Practice
Note, 2004.
HiiL Trend Report – Part 1: Challenges and Promising Approaches 15