We the people: Why legal systems should be built from the bottom up

A protester shouts in front of the Supreme Court during a demonstration demanding land-right activist Tep Vanny release on bail, Phnom Penh, Cambodia, January 18, 2017. REUTERS/Samrang Pring

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More than four billion people around the world remain excluded from what we have come to refer to as the "rule of law"

It is one of the most powerful three-letter words in the English language, with its implications for liberty, justice and order.

But law at its most fundamental is an instrument that simply enables people to proceed with their lives, resolving many day-to-day disputes from property to divorce, employment to violence.

Yet more than four billion people around the world remain excluded from what we have come to refer to as the "rule of law", which today represents a complex system administered from the top down, through formal institutions.

For instance, this includes an estimated one billion who do not even have basic rights to their own homes, some which they have lived in for decades, because of barriers such as complicated bureaucracy administered by centralized institutions. And without land titles or deeds, these same people are restricted from accessing other basic legal services, not to mention credit markets.

Most of these marginalized people live in developing countries, where established institutions do not have the resources to successfully implement modern law as we know it.

And so rather than providing adequate resources for ordinary people to access simple means to resolve their differences, the rule of law instead becomes an obstruction, holding back families, businesses, and even countries. The result is a legal system that is too unwieldly, too expensive, and too obscure - not to mention the additional problem of post-colonial legal systems being imposed from afar. As such, it is not fit for purpose to achieve its basic objectives.

But does it have to be this way? The short answer is no.

The first step to building better law is to peel away a fundamental fallacy: that the building of legal systems is a task that should be left to legal experts, who implement a one-size-fits-all set of institutions. That’s wrong. Law and legal systems have to be built on the ground with the people who need them and with laser-focus on the ends not the means.

When we try to implement “best practice” laws and institutions from developed countries – however well-intentioned - we risk doing more harm than good. Legal systems imposed by outsiders or elites can destroy longstanding local ways.  But such local ways developed precisely because they worked for the people who needed them.  Building anything new has to start there—even when the goal is change to better promote economic or social development.

This is the way all successful legal systems, even radically new ones, have been built.

One of the most recent examples has emerged out of Nigeria, where a new network for alternative dispute resolution has been developed based on indigenous practices as opposed to the British system that inspired the formal legal system.

The imported formal framework meant more than half of Nigerians did not understand the legal process and around half could not obtain legal counsel or advice.

But now the Lagos Multi-Door Courthouse offers a greater range of resolutions and hears cases quicker than conventional courts, which are beset by congestion. This has been accompanied by campaigns to raise awareness among lawyers and the public of the advantages of dispute resolution over litigation.

Initial success came in resolving disputes that involved small sums of money but where the cost of litigation was prohibitive, such as disputes between landlords and tenants.

The results speak for themselves: within 15 years, the network has achieved an impressive 65 per cent settlement rate.

Building new systems on the basis of existing ones is not a novel idea, as I explain in Rules for a Flat World. In fact, citizen-led legal systems that were deeply embedded in existing informal norms was how law began.

In ancient Athens, for example, the first democratic regimes sustained a thriving civilization without requiring the full suite of centralized lawyer-led legal infrastructure that we urge on the developing world.

When the Athenians resolved to establish democracy, they established laws and courts but the legal process itself was the responsibility of private individuals. The judges were fellow citizens, sitting in juries that numbered hundreds, even thousands. Formal laws were invoked but the court was open to arguments that ordinary people understood. This made the new legal system an extension of the rich set of social norms the Athenians had long known and supported, even as it moved the society along the path from control by elites to democracy.

As a result, the rule of law depended on the cooperation and participation of the masses, not the minority. It embedded law in the daily lives of Athenians, not abstract ideas and remote institutions.

A reliable system for resolving ordinary daily disputes—in families, between neighbors, between business partners—is one of the most basic needs of any society.  As any product designer knows, you can’t design something that is useful for people if you don’t understand and respond to what real users need and can use.  So even when the aim is change—towards greater economic productivity or social equality and fairness—the starting point has to be where a community is, not what foreign experts decide “law” must look like. 

The sooner we understand this lesson, the sooner we can make progress in helping the four billion living at the base of the global economic pyramid move towards more effective rule of law and the economic and social progress law brings.

Gillian Hadfield is a professor of law and economics at the University of Southern California where she writes, teaches, and speaks about the challenges we face in developing legal frameworks for an inclusive and robust complex global economy.

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