Jul 20 2012

This comment arises from several recent discussions with human rights activists about the differences in our approaches to “judicial or justice reform.” In two instances the response was an emotional denial of any difference – one person later said he had been tempted to walk out. Perhaps these were simply personal reactions, but they left me more convinced than ever that differences do exist and that a refusal to recognize them may not be entirely coincidental. Inspired by those exchanges, the following is a short attempt to explain the distinctions.

Since I regard myself as a developmentalist, not a human rights activist, I apologize for any injustices I may be doing to the latter. I stress, however, that the point is not to prove one approach better than the other but rather to catalogue how they differ. The world arguably needs both, but the world may find it difficult for the two hands to work harmoniously. Why is this? First off, it is not because we are necessarily pursuing different values. While I personally do not find the concept of “rights” very useful because of its near religious, natural law connotations, much of what the rights group promotes in the justice arena (e.g. impartial judgments, equal treatment, but also efforts to level the playing field, an end to opportunistic, often systematic abuses) I would also prioritize.

Second, however, the means characterizing the two approaches are dissimilar. Human rights advocates look for specific abuses (which ones depend on what matters most to the viewer – gender crime, torture, denial of service, corruption, etc) and then call for their elimination before the fact, and castigation, afterwards. Aside from calls to outlaw what may still not be explicitly illegal, they seem to rely largely on expanding the demand for change, letting the targets decide how they will comply. The developmentalists in their best variation (like human rights, they have less admirable forms) measure systemic performance against either some ideal model of what a justice system should do (not my preferred method) or what citizens ask/need of it, seek causes for shortcomings, and then, taking into account the severity of the problem and feasibility of remedies, attempt to improve outcomes. As opposed to the human rights emphasis on demand (which they also consider necessary but insufficient) developmentalists (reformers) focus on modifying incentives and institutional arrangements as the key to altering behaviors. Success is also measured differently – against the starting point for developmentalists, against the ideal for human rights advocates (for whom, much like auditors, the best grade appears to be zero – no errors found).

Can we work together? With difficulty as our immediate goals are different, and we have different notions of how improvement is achieved. However, for all their disagreements, the two approaches complement each other -- human rights advocates call attention to the need for certain (but not all) types of change, and developmentalists are arguably more successful in producing what is possible.