Making The Law Work for Everyone Commission on Legal ... - ISSAT

1. Introduction<strong>The</strong> <strong>Commission</strong> on Legal Empowerment of thePoor (CLEP) emphasises re<strong>for</strong>ms to the law andjustice sector that will provide poor people withthe institutional environment, protections, andincentives that they need to realise their full capabilitiesand reap the maximum potential returnon their existing assets. This in turn requires legalprotection <strong>for</strong> physical assets (property rights),human capital (labour rights), and the ability toengage in profitable market transactions (entrepreneurialrights). Poor communities also requirebasic services that cannot be supplied efficientlyin the private market, such as essential utilities,a healthy environment, public security, and asocial safety net. <strong>The</strong> legal system must protectaccess to both private rights and public goods ifpoor people are to be able to escape poverty.Poor people tend to live in communities withscarce resources. <strong>The</strong> challenge <strong>for</strong> the justicesystem, those who govern and their internationalpartners is <strong>for</strong>midable: How to turn the law intoan effective tool <strong>for</strong> those living in absolute poverty— people living with less than a dollar a day?<strong>The</strong> optimistic goal of our working group <strong>for</strong>Chapter 1 was to identify promising strategies <strong>for</strong>legally empowering poor people to have accessto justice. In the process, we investigated bestavailable practices and solicited suggestions duringa series of national consultations organised bythe <strong>Commission</strong> (CLEP), and we reviewed evaluationstudies of access to justice programmesconducted by various NGOs. It was apparent thatacademic research had delivered many case studiesabout in<strong>for</strong>mal justice systems in developingcountries.In addition to the focus on practice, experienceand the variety of outcomes, we propose toconsider theory. Although law and developmentis a recognised research topic (since the 1960s),there is as yet no generally accepted frameworkour working group could use <strong>for</strong> analysing accessto justice issues. Many strands of research, however,from institutional economics to negotiationtheory and from legal anthropology to the analysisof market failure, can yield in<strong>for</strong>mation about themost promising strategies <strong>for</strong> providing access tojustice. <strong>Law</strong> and development, operating underthe name of legal empowerment, is one particularstrand the <strong>Commission</strong> could usefully buildon (Golub and McQuay 2001; Golub 2003), andthere are others using bottom-up perspectives (VanRooij 2007). More generally, bottom-up and empowermentapproaches have been part of the developmentagenda since the late 1990s (Narayan2005), and they have now become building blocksof programmes such as the World Bank’s work inCommunity Driven Development and, more recently,its Justice <strong>for</strong> the Poor programme.In addition to issues of practice and theory, wewill consider legal principles. It may be difficult2