Is legal empowerment good for the poor?

Author:Singh, Naresh C.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 2:15 p.m., Thursday, March 26, by its moderator, Anne Trebilcock formerly of the International Labor Organization, who introduced the panelists: Naresh Singh of the Canadian International Development Agency, Commission on the Legal Empowerment of the Poor; Kerry Rittich of the Faculty of Law, University of Toronto; Steve Golub of Boalt Hall Law School, University of California-Berkeley; and Caroline Sage of the World Bank Legal Department. *

INTRODUCTORY REMARKS

It was my pleasure to introduce the distinguished panel (1) and moderate the debate. The panel's title was deliberately provocative: the specific goals of law reform efforts, and how they are carried out, may yield better or worse outcomes for men and women living in poverty.

The launch of the report of the Commission on Legal Empowerment of the Poor in mid-2008 marked an important event in the policy debate over the relationship between law, development, and human rights. (2) Before retiring as Legal Advisor of the International Labor Organization, I was privileged to participate in a Commission working group on implementation strategies and tools. Given the diversity of views on the Commission, arriving at consensus recommendations was quite a feat.

The discussion of legal empowerment could not be more topical. The four pillars identified by the Commission--access to justice and the rule of law, property fights, business rights, and labor rights--are cast in starker relief by the current economic crisis. This sudden plunging of millions of people deeper, or back, into poverty is pushing us to rethink regulation, rights, and development strategies. The just launched Hague Journal on the Rule of Law has devoted an entire section to critiquing various elements of the Commission's report)

Several new books have called for fresh approaches to both the rule of law (4) and human rights. (5) In addition, the contributions of the working groups that underpinned the Commission's main report suggested topics for further empirical and theoretical research to shed light on what would in fact empower poor women, men, children, and their communities.

Moreover, how does legal empowerment compare to others such as the human capabilities approach of Amartya Sen and Martha Nussbaum? (6) What are the implications, especially for human rights law, of the Commission selecting these particular four pillars and how they interplay?

Finally, as Nehal Bhuta of the University of Toronto has suggested, examining this report may lead to reflection on the role of high-level Commissions in producing knowledge and influencing policy, since they necessarily imply a large degree of generality in order to permit consensus. The Brundtland report used the term "sustainable development" almost twenty years before it gained purchase. (7) Currently, G8 and G20 leaders are picking up some of the ideas put forth by the World Commission on the Social Dimension of Globalization in 20048 on trade, finance, foreign direct investment, and social development issues. Its recommendation to make decent work a global goal has been embraced in the UN system, (9) in the 2008 ILO Declaration on Social Justice for a Fair Globalization, (10) and in many regional institutions.

What, then, will be the legacy of the Commission on the Legal Empowerment of the Poor? Some of its recommendations, such as access to justice and legal identity, will be easily embraced by all. Others, particularly regarding property rights, remain more controversial. (11)

We can fairly ask whether legal empowerment is more about power than about law. In order to succeed, any law reform effort will need political savvy, creativity, and cultural and gender sensitivity alongside sound legal and economic analysis. Following reforms, will the poor be able to see and use law as a tool of their empowerment rather than of their oppression? And, more importantly, how? These questions were posed to the panelists, whose statements follow.

Discussion with the audience involved the role of litigation in pursuing change in various societies, the definition of "poor," more background on how the Commission was formed and operated, the complexities of women's legal empowerment (with men and women differently situated in the labor market, participation per se is not the answer), and diverging evidence that makes it difficult to draw definitive conclusions about the effects of particular legal empowerment initiatives. In any event, the Commission's report and its aspiration-"Making the Law Work for Everyone"--has made an important contribution to the policy debate.

* Steve Golub and Caroline Sage did not submit remarks for the Proceedings.

(1) Naresh Singh, Director-General for Strategic Planning in the Canadian Partnership Branch of the Canadian International Development Agency, who served as Executive Secretary to the Commission on Legal Empowerment of the Poor while he was with UNDP; Caroline Sage, Legal Counsel with the Justice Reform Project of the World Bank, where she heads the Justice for the Poor Program; Kerry Rittich, Professor of Law at the University of Toronto, with specialization in law and development, labor law, and the social dimension of globalization; and Stephen Golub, who teaches courses on law and development and legal empowerment at Berkeley Law and the Central European University and who authored reports of the Asian Development Bank and Carnegie Endowment that coined the term "legal empowerment" earlier in this decade.

(2) The reports of the Commission and of the Working Groups appeared as vols. 1 and 2 of Making the Law Work for Everyone and may be downloaded at .

(3) The journal is available through journals.cambridge/org/rol. Five articles analyze the Commission's report from various perspectives. Most, unfortunately, did not take into account the more developed reports of the working groups.

(4) E.g., M.J. TREBILCOCK & R.J. DANIELS, RULE OF Law REFORM AND DEVELOPMENT: CHARTING THE FRAGILE PATH OF PROGRESS (2008). Reviewing the "thick" and "thin" definitions of rule of law, the authors propose a procedural definition involving process values, institutional values, and legitimacy values. Even The Economist (Mar. 15, 2009, p. 83) recently featured a review of the rule of law debate.

(5) See, e.g., S. FREDMAN, HUMAN RIGHTS TRANSFORMED: POSITIVE RIGHTS AND POSITIVE DUTIES (2008), AND D. BILCHITZ, POVERTY AND FUNDAMENTAL RIGHTS: THE JUSTIFICATION AND ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS (2008).

(6) See, e.g., A. Trebilcock, Using Development Approaches to Address the Challenge of the Informal Economy for Labour Law, in BOUNDARIES AND FRONTIERS OF LABOUR LAW 63-86 (G. Davidov & B. Langille eds., 2006).

(7) F. Lapeyre, The Outcome and Impact of the Main International Commissions on Development Issues, Policy Integration Department Working Paper No. 30 (ILO, Geneva, 2004).

(8) A Fair Globalization: Creating Opportunities for All (ILO, Geneva, 2004), available at .

(9) See, e.g., United Nations, 2005 World Summit Outcome, Doc.A/RES/60/1, [para] 47 and Chief Executives Board for Coordination: Toolkit for...

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