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“And Justice For All”?


Gary Haugen and Victor Boutrous have a useful article in the new print version of Foreign Affairs, pointing out that all the human rights standards in the land mean nothing if they’re not translated into practical justice for every human being. Particularly, they point out how the ability to enjoy one’s legal rights is related to wealth.

Efforts by the modern human rights movement over the last 60 years have contributed to the criminalization of [various] abuses in nearly every country. The problem for the poor, however, is that those laws are rarely enforced. Without functioning public justice systems to deliver the protections of the law to the poor, the legal reforms of the modern human rights movement rarely improve the lives of those who need them most…. Helping construct effective public justice systems in the developing world, therefore, must become the new mandate of the human rights movement in the twenty-first century.

An important and timely argument that may constitute a major reframing of human rights discourse and practice. Two minor rejoinders, however:

1) The piece implies this is only a problem for people in the global south:

For a poor person in the developing world, the struggle for human rights is not an abstract fight over political freedoms or over the prosecution of large-scale war crimes but a matter of daily survival. It is the struggle to avoid extortion or abuse by local police, the struggle against being forced into slavery or having land stolen, the struggle to avoid being thrown arbitrarily into an overcrowded, disease-ridden jail with little or no prospect of a fair trial.

Maybe after we’re done “in the developing world” we can solve this problem here in the North as well. We all take for granted that in Western legal systems your shot at judicial redress is related to your bank account, and that the police behave differently in affluent white neighborhoods than in the inner city or the trailer park. Sure we condemn and prosecute the worst cases of police brutality, and we get all shocked and horrified if a man is convicted by a judge who is sleeping with the prosecutor, but how often do we bat an eyelash at everyday convictions by judges who just happen to be good friends or trusted colleagues or nearby neighbors with that prosecutor because they happen to share socio-economic status, occupational interests, eat at the same restaurants, have children in the same private schools and so on? These are minor illustrative example of a more systemic problem that may or may not be fixable by human rights law: the invisible hand of socio-economic homophily that clusters influence and affinity among those with the relative means necessary to connect with one another as equals. This is not to overlook some important empirical differences between the developed and developing world (Haugen and Boutrous use the number of citizens per lawyers as an example – 749 in the US compared to 25,667 in Zambia). And it’s true that in the West, indigent defendants are at least appointed a lawyer by the state, which may not be true in many countries. Much, much more could be done for the impoverished in the developing world to improve enforcement of basic due process standards. But let’s not overstate the case or pretend that disparities in legal access based on relative wealth isn’t a global problem.

2) On the other hand, which is the bigger human rights problem – the fact that “poor people” lack legal redress, or the deep ocean of global poverty itself? To some extent, it depends on who you ask. I have recently been analyzing two sets of data on the human rights movement – 352 survey responses from a snowball sample of human rights activists I reached through listservs headquartered in the North; and 55 responses to the same questions embedded in a survey of activists from the global south conducted by James Ron and his research team at Carleton University. Each set of respondents was asked to name “three or more issues that come to mind when you think of the human rights movement.” While “justice” or “rule of law” along the lines described by Haugen and Boutros is frequently mentioned in the online survey, the activists from the global south were likelier to talk about “poverty,” “economic rights” or the need for “development,” though “discrimination” and “governance” were also high on their agenda.

Haugen and Boutros are right about this: public justice reform is being neglected by human rights organizations. My team has also studied the issue agenda of 41 human rights organizations at the center of the global human rights network, as described on their websites. Though many speak broadly of combating corruption, increasing “transparency” and promoting “good governance,” only 19% speak of legal reform as a specific solution on which they focus. Even fewer (only 9%) have made the shift, in Haugen and Boutros’ words, “from legal reform to law enforcement” even on paper, with an emphasis on “police and human rights.”

Ultimately, though, I think the authors’ emphasis on public justice reform is really a small piece of a bigger argument: since economic inequality may not be going anywhere fast, wouldn’t it at least be a good idea to minimize the most blatant forms of economic discrimination? Of course the answer is yes. Non-discrimination is one of the core principles of human rights law, a key norm that “rule of law” as a set of practices is intended to promote. The idea is that social benefits, political influence and economic opportunity shall accrue equally to all members of a community, rather than be filtered through patronage, kinship, ethnic or commercial networks. And it is economic inequality, rather than race or gender or other factors per se, that locks many people out of of such access and ensures they cannot enjoy their rights.

Since “rule of law” of this sort is rarely entirely evident – no less so in the Arab Middle East than in the West, where “it’s not what you know it’s who you know” and where powerful families monopolize economic and political power – this means that what Haugen and Boutros are proposing is radical indeed. So kudos to Foreign Affairs for sparing ink on such a progressive treatise.

Cross-post at the Duck and Current Intelligence.

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