Legal Power to the People

I sensed a profound longing at Ramlila Grounds in New Delhi recently, where some of the largest demonstrations in India’s contemporary history took place.

The protesters in Delhi and around the country pressed for a concrete political change—a new bill, a new institution to punish corruption—and in principle they won.  Parliament passed a resolution accepting the protesters’ demands, and a joint committee is now drafting a bill accordingly.

But the demonstrations were also motivated by a deeper aspiration, one that is even more difficult to achieve: that the day-to-day workings of government can somehow become more accountable, more tied to the citizens whom government is meant to serve.

Two of the great international movements since World War II have arrived at exactly this challenge.  The movement for human rights has led nearly all nations to endorse human rights norms at least in name.  Organizations like Human Rights Watch, Amnesty International, and countless national counterparts can therefore use documentation and public advocacy to shame governments for egregious violations.  But shaming alone cannot address every breach of basic rights.  A juvenile is wrongfully detained; an agricultural loan is held up for a bribe; a textile factory poisons a river.  By what consistent, systematic means can communities protect their rights in daily life?

The parallel and hitherto largely disconnected movement for development finds itself confronting the same questions.  Governments and agencies have sought to alleviate poverty by fostering economic growth and by improving essential services like health, water, and education.  But increasingly those pursuing development recognize that success depends on communities’ ability to participate in and hold accountable public institutions.  Governments and donors can build clinics and schools, for example, but what happens if the drugs and books aren’t delivered?  Or if the nurses and teachers don’t show up to work?

The answers to these questions do not lie in elections or representative democracy alone.  They require a thicker, ongoing relationship between citizen and state.  You might call it a question of “legal empowerment”: of ensuring that laws and policies do not reside only in books or courtrooms, that instead they are on the street, in the factory, on the farm, in the home, within the grasp of every person.

Legal empowerment matters to all of us.  But in contrast to, say, public health, international efforts to address legal empowerment are weak.  Admittedly, laws and institutions vary more than bodies and diseases do.  While many public health activists call for a single standard of care to be applied across the globe, the precise shape of the citizen-state relationship will always depend on the specifics of history, culture, and politics.

In spite of this complexity—indeed because of this complexity—we need a stronger international movement for legal empowerment.  We should prioritize innovation and research, to help us translate ideals into practice.  The atmosphere at Ramlila Grounds reminded me of the Obama campaign in 2008: the mixing of classes, the numbers of people engaging in public life for the first time, a spirit of hope rather than anger.  But even fervent protesters acknowledged to me that the new lokpal they were pushing for—a national ombudsman office--would face some of the same implementation challenges that have dogged India’s existing institutions for accountability.  How should the lokpal relate to those institutions, including administrative law and the courts?  How will its reach be extended to all citizens?  Who will check the lokpal itself?  We should address these questions by studying the experience of ombudsman offices across countries, and by experimentation going forward.

If the ombudsman tradition is about expanding government’s capacity to provide redress, the civil legal aid tradition is about bolstering citizens’ capacity to seek redress.  Here too, we need more innovation.  I co-directed a grassroots justice program in Sierra Leone for four years, where exploitation and arbitrariness had contributed to an 11-year civil war.  A conventional legal aid model would have been unworkable.  There were 100 lawyers in the country when I moved there, and more than 90 of those were in the capital Freetown.  Instead we trained a frontline of community paralegals in basic law and in tools like mediation, advocacy, education, and organizing.

A World Bank assessment found that paralegals often manage to squeeze justice out of a broken system: stop a school master from beating children; negotiate child support payments from a derelict father; persuade the water authority to repair a well.  In exceptionally intractable cases, as when a mining company in the southern province damaged six villages’ land and abandoned the region without paying compensation, a tiny corps of lawyers can resort to litigation and higher-level advocacy to obtain a remedy.

Again, there is a lot left to learn: How can we achieve scale and consistency in primary justice services?  Is it possible for public legal aid boards to recognize and fund paralegals without compromising paralegals’ independence?

To support such innovation, and to expand investment in this field, the international community should establish a global fund for legal empowerment.  Like health or the environment, legal empowerment is a public good.  Legal empowerment renders governments more accountable to their citizens, and it makes development more equitable.  Unlike public health, there is a natural disincentive for states to finance legal empowerment, because legal empowerment efforts constrain state power—this is all the more reason for a global financing mechanism.

Social movements in India, the Middle East, and elsewhere are demanding institutions that give greater space for citizen participation and citizen oversight.  The challenge of responding to those movements does not belong exclusively to a handful of governments.  It belongs to all of us.