Justice indicatorology: a new theatre for justice?

AuthorPaliwala, Abdul

INTRODUCTION

In 2008, a workshop of experts, academics, and practitioners on development work on justice noted that "the world today is swimming in indicators of justice, safety, and the rule of law." The same workshop, however, noted, in disappointment, that the available indicators focused "so much on rules and activities and not on people and experiences." (2) In 2012, two expert institutions in measuring the rule of law, including justice, The Hague Institute for the Internationalisation of Law and The World Justice Project respectively claimed a "measuring revolution" on measuring the rule of law, underlining the quality, amount, and usability of indicators. (3)

This article interrogates the images of justice produced by justice indicators, as advanced by such experts. These images then become truths about the nature of justice and injustice in jurisdictions worldwide. However, what are these indicators constructing? The article is part of a continuing research project considering justice indicators in Malawi. Our starting concern was whether Malawian society was becoming more just and better governed with greater emphasis on the rule of law or, was the situation getting worse? At its inception, we felt that we were swimming in a sea of indicators and thus our initial concern became that of deconstructing this sea with particular reference to its contribution to dealing with palpable social injustices.

This article is a preliminary analysis of the links between measurement of justice and injustice as part of contemporary technologies of discipline and power. It involves a critical examination of the objectives and conceptual framework of those engaged in developing indicators; the nature of the research methodology, and the linkage of the performance of public duties to injustice. In particular, it suggests that the indicators which attempt to measure aspects of 'justice, good governance and rule of law' are devices in the construction of images of justice. It is suggested that this principle continues in the more recent transition in which the dominant quantitative approaches are supplemented by more qualitative approaches to measuring justice which have been recently introduced by the World Bank and the UNDP, among others. This is because these indicators ignore the wider realities of global injustice and the problematic relationship between justice and (in)justice. It is thus necessary to consider and interrogate the internal dynamics of what we have called 'indicatorology' with the wider alternative frameworks of global (in)justice as indicated in the works of Pogge, Baxi, and Santos, in contrast with that of Sen.

ON MEASURING JUSTICE

Both measuring in general and the measuring of justice may be Aristotle's long legacy. For Aristotle, measuring was an ethical phenomenon intrinsically connected with perception and thinking. Aristotle's two major contributions to the idea of justice are his principle of equal distribution for male citizens (i.e. not women or slaves), a principle which finds its echoes in Rawls; and the principle of 'reciprocity'4. Thus reciprocity is the basis on which the exchange of goods and services and in fact all things can be assigned values and be measured. Money, for example, becomes a key measure of all things. (5) What we have here is the basic highly contradictory relationship between measuring, justice, and money (as the symbol for market) which continues to this day. Shakespeare's tragic figure of Shylock, as both the creator and victim in The Merchant of Venice, articulates the precise nature of the contradiction by which the abstract measure of justice in itself produces injustice. (6) Thus, if legal 'justice' itself produces 'injustice', the concepts are not necessarily complementary in the sense that 'injustice' is an absence of 'justice' but different. (7)

Thus the recent mushrooming of justice (and we will add good governance and rule of law) indicators has at its core fundamental contradictions between the nature of justice and injustice. The "who", "what" and "why" of the measuring of justice are critical issues in the construction of images of justice. In this regard, Morse suggests that we may have a new science of indicatorology:

Indicators can be powerful and useful tools. They summarise complexity, not by accident, but by design, and speak with a quantitative and apparently objective authority which commands respect. But such power works both ways and can be used to support recommended action from all sorts of perspectives.,.[M]uch depends on who selects ..., the ways in which they are 'measured' and presented. The power held by those wielding indicators is rarely acknowledged, and instead the processes of creation and use are presented in benign, technical and, of course, objective language. (8) Thus underlying the construction of indicators and indicatorology may be forms of discipline and power implicated in what Mitchell considers 'rule by experts' (Mitchell, 2002).9 In his fascinating study of two Egyptian colonisations, Mitchell suggests that a key aspect of modern social science has been the character of 'calculability' or a new 'politics of calculation' which is based on ensuring, among other things, that quantities and performances are 'measurable'. It is such intricate measurability which is then used to construct the forms of discipline and power which became part of the new truth of modern colonial (and now post-colonial) scientific dominance or 'rule of experts'.

ON THE SEA OF INDICATORS

The 2008 workshop on indicators was scathing in its criticisms about the pertinence of the array of indicators on access to justice and safety. Not "everyone is happy with or helped by the growing global supply of indicators", was one of the conclusions. (10) Some at the workshop stated that they were distracted by the sheer array of indicators and the burden associated with their collection. Few of the indicators seemed relevant to the aspirations of justice and concerns of safety in the associated countries, the conference observed. There was too much focus on the rules and activities of individual government agencies. The workshop further noted that "few of the indicators in play today are sensitive enough to register and reward incremental change in a realistic time frame." (11) The agreement at the workshop was that "indicators should capture 'the human dimension' of justice." (12) Thus, although there was a sea of indicators on justice and safety, there was also much frustration from the perspective of actual experiences.

In 2012, amidst "mounting skepticism regarding the success of rule of law promotion by the UN and other international organizations and donors at the national and international levels during the past two decades", two expert institutions in measuring the rule of law, including justice, The Hague Institute for the Internationalisation of Law and The World Justice Project respectively claimed some revolution in measuring justice:

A measurement revolution has taken place in the fields of governance, justice, and the rule of law. Not only have the quality and amount of available data exponentially increased in the past two decades, but more importantly, the knowledge about precisely how to effectively use these data to advance reform in the field has greatly improved. (13) However, the Hague Institute for the Internationalisation of Law and The World Justice Project claimed that such knowledge remained "buried in the hands of a handful of experts scattered around the world; it has not been fully internalized by the rule of law community, and it remains largely ignored by government reformers in all corners of the world today."14 15

So, what do we make of such sea of indicators and "innovations"? Our initial assumption was that there was an absence of coherence. However, we now discern chaotic patterns which involve construction of dominant images of justice. It is apparent that indicators are generally formulated by, or on behalf of, agencies involved in promotion of good governance, rule of law and justice at a global level. Thus the agencies involved include agencies of the UN such as the UNDP, UNHCHR; international financial institutions such as the World Bank; organizations of the rich nations such as the OECD; and developing country aid donors such as USAID, DFID (UK), sida (Sweden), SPFG (Spain). These represent aid giving organizations who have been promoting good governance, rule of law and justice and the use of indicators becomes an obvious instrument of assessment and control of aid. The significance of this is that for the aid donors, the perspective will inevitably be achievement of their own top-down objectives, that is, "How are we doing?" rather than objectives framed by people within the countries themselves. It has observed as follows:

A fair and efficient justice sector is critical to the protection of human rights and the resolution of disputes between citizens. It is also essential for ensuring the proper functioning of public institutions and encouraging national and foreign investment. Measured against The World Bank's rule of law (ROL) governance indicator, all 48 countries in sub-Saharan Africa scored poorly, with 41 countries ranked below the 50th percentile. These results are a clear reflection of the significant hurdles faced by countries and donors alike in their efforts to improve rule of law in the region. (15) (Emphasis ours)

A second tier of organizations within indicatorology are global civil society institutions who also aim to promote good governance, the rule of law and justice. These include agencies such as the Open Society Institute, Bertelsmann Transformation Index, the American Bar Association-sponsored World Justice Project, Transparency International and the Mo Ibrahim Foundation. (16) While the Mo Ibrahim Index is formulated on behalf of an African foundation, it was initially...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT