Definitions & Conceptual Issues
Last Updated: April 6, 2009
A variety of closely related, synonymous terms
Actors involved in judicial and legal reform/(re)construction use different terms to refer to their programs in this area, such as "administration of justice," "judicial reform," "legal reform" programs, "justice system reform," and "justice sector reform," with "rule of law reform" being an umbrella term of sorts. Stakeholders tend "to focus on different aspects of the wide-ranging tasks of rule of law reform, according to their own expertise and interests. The diversity of rule of law programmes often reflects the divergent mandates, interests and agendas of donor agencies as much as the needs of the country in question."1 The expressions "rule of law reform" and "judicial and legal reform" are often used synonymously, reflecting the heavy focus on the judiciary in rule of law assistance.[Back to Top]
Unpacking the expression "judicial and legal reform"
Judicial reform(also called legal sector reform) refers to efforts to improve the functioning of a countrys legal system in terms of both fairness and efficiency. In other words, it refers to "modifications to law and practice designed to enhance the efficiency, accountability, integrity, and independence of judicial institutions."2 Here, the legal systemencompasses the legal framework--that is, the constitution, statutes, regulations, customary law, and international legal obligations--as well as the institutions that interact to form the judicial process, giving effect to the legal norms. These include the courts, the judicial administration, public prosecutors and defenders, the police, and prison administration. The term as used here also includes alternative dispute-resolution mechanisms (ADR), tribunals, and ombudsman institutions, which in many cases play an important role in providing access to justice, easing the load on the "core" legal institutions. In addition, the legal system has a penumbra of institutions that are central to the operation of the legal process, providing legal education and training, legal aid, legal advice, information, and rights advocacy. These may be public or non-governmental and often involve a range of institutions, including law schools, law societies, bar associations, legal aid non-governmental organizations (NGOs), and human rights organizations.3Defining Judicial and Legal Reform/(Re)construction in the Context of Peacebuilding
Judicial reform/(re)constructionrefers to activities aimed at, or the process of, reforming and/or rebuilding justice systems
Legal reform/(re)construction refers to activities aimed at, or the process of, reforming and/or redrafting the laws (legal framework) governing a post-conflict society.
In practice, most actors tend to define judicial and legal reform/(re)construction in post-conflict societies simply by listing its main components.
The expressions "justice sector reform" or "justice system reform" are also used. They refer to a holistic, integrated approach to justice that encompasses judicial reform, as well as police and prison reform. In practice, holistic, sector-wide approaches to [justice reforms] in these conflict and post-conflict contexts have not yet proved possible.4 Those who pose this diagnosis generally identify five obstacles to sector-wide reform in post-conflict situations:5
- Funding arrangements in post-conflict situations are more frequently short term and poorly integrated with each other;
- The project managers and advisors deployed by development agencies in post-conflict contexts have less training and expertise in sector-wide, development approaches to security and justice sector reform;
- Civilian leadership in post-conflict situations is more tightly confined in separate silos and preoccupied with ending active conflict;
- A large number of competent officers may have left the country or have been killed during the war; and
- The local population often has a strong distrust of the organs of justice after many years of corruption, lack of independence, and total inefficiency, to which should be added the consequences of large-scale violence that may have left the people traumatized.
Go to SSR subsection and community policing
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Distinguishing between "reform," "reconstruction," and "creation"
In many post-conflict situations, the key challenge may be to create rather than reform or even reconstruct the justice system. According to Kirsti Samuels, "In many cases, neither government capacity nor reliable justice ever existed in countries emerging from widespread conflict. Thus, the task is the creation of such institutions and attitudes, not merely their reconstruction."6 In other cases, institutions have to be created from scratch (as opposed to recreated) and old institutions actually deconstructed in an effort to re-instill a populations faith in the institutions and to lend the institutions legitimacy.There is a central issue here as to whether to construct anew or reconstruct existing, albeit badly damaged or dysfunctional, institutions. Often, practitioners do not have a choice, and some would even consider that it is easier to start over and get new personnel, new rules, and new institutions that clearly signal to the people that the system is different. The key challenge of that option is that it takes a long time and is very expensive.7
1. Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Malden: Polity Press, 2002), 55-56.
2. International Development Law Organization (IDLO).
3. Elin Skaar, Ingrid Samset, and Siri Gloppen. Aid to Judicial Reform: Norwegian and International Experiences (Bergen: Chr. Michelsen Institute, 2004), 1-2.
4. Christopher Stone, Joel Miller, Monica Thornton, and Jennifer Trone, Supporting Security, Justice, and Development: Lessons for a New Era (New York: Vera Institute of Justice, 2005), 20.
5. Ibid.; comment by Bill O'Neill (June 2, 2008).
6. Hurst Hannum, "Peace versus Justice: Creating Rights as well as Order Out of Chaos," International Peacekeeping 13, no. 4 (2006): 590.
7. Comment by Bill O'Neill (June 2, 2008).
