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Source: Pixabay (via WilliamCho / 14 images)

When Do We Stop Trying to Fix a Broken System?

Billion. With a b. More than five thousand million. I’ll stop there; math is not my strong suit.

That number is by now fairly recognizable among many in social justice circles. It originates from an April report issued by the Global Task Force on Justice, citing 5.1 billion as the number of people around the world who lack access to justice in one form or another.

Of course, we’re talking about a continuum of justice needs, here, ranging from consumer issues to employment problems to violence and crime. But whatever these underlying issues, this is not great news. Nobody can deny that 5.1 billion lends itself to a shocking headline — and reality. It is, after all, a majority of the global population.

The justice gap numbers in the Task Force report are complemented by recently released Pew survey research that suggests widespread concern with justice systems around the world:

“A 27-nation median of 44% say the statement ‘the court system treats everyone fairly’ describes their country well, while a median of 53% say it does not. And opinions about a country’s court system vary little across the advanced and emerging economies surveyed.” — Pew Global (April 2019)

Sure, the situation seems a bit rosier in countries like Sweden, Germany, Canada, and the Netherlands. Also Kenya, Indonesia, and the Philippines. (Seriously.) But not in the US. And not in a lot of countries.

And sure, this is “just” public perception not quantitative data proving systemic bias. A note on that, though. There is a distracting (I think) and unproductive (I think) tendency among some justice system stakeholders to chalk up people’s negative perceptions of the justice system to a lack of knowledge about how the system works. Insert generic recommendation for increasing civics education, here:______________________.

But maybe, just maybe, the people we are blaming and shaming for their ignorance are precisely those who really understand how the system works. Because if you are on the receiving end of injustice or hear stories of injustice in your community, you have an understanding of how the system works.

In any event, this is not good news. If a citizenry does not believe its justice system is impartial or otherwise functioning, the reality of its operations can quickly become an afterthought.

“The fact that constitutions establish courts does not mean that they guarantee our relevance. Relevance is earned. It is not gratuitously given.” — Michael Buenger, Rethinking the Delivery of Justice in a Self-Service Society

Public perception is important. So are actual impartial and accessible systems of justice. The rule of law depends on it, and the rule of law is important for … well … everything. It’s a cheap trick to drop the always-colorful UN Sustainable Development Goals, but I’m not above it. Enjoy.

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United Nations Sustainable Development Goals: Knowledge Platform

You get the point: it’s important.

The Global Task Force on Justice report doubles down on the notion of universal basic justice. This is a timely suggestion as the debate over universal basic income heats up in the US alongside the growing reality of our universal basic nothing.

This concept is as advertised — universal, basic, justice — but here are the specifics. Such a system, according to Task Force figures, could be achieved at a cost of $20-$190 per person per year (depending on the income level of any particular country).

What would that money go toward supporting? Among other things:

  1. legal advice, assistance, and empowerment
  2. formal justice institutions
  3. accountability mechanisms

Universal basic justice makes sense. In fact, it makes so much sense that it’s almost ridiculous that we have to have a report that makes a recommendation to that end. It makes so much sense that it begs the question “Why don’t we already have this?” and also the question “Aren’t many of us already paying for this basic justice delivery through our funding of our government?”

Of course, not all countries levy taxes effectively, and not all countries levy sufficient taxes (effectively or otherwise). And of course it’s bigger than the tax issue; respect for the rule of law is not consistently applied across the globe. Those of us who have the benefits of most of its trappings should surely help those who don’t.

Returning, though, to the figure we started with: 5.1bn. This is clearly a problem of scale. And when considering problems of this scale, it would seem to make sense to start digging deeper into the systems at issue before we throw more money at them.

This is where the questions get particularly difficult and, depending on where you sit, unpopular.

Why are we assuming it’s the funding structures that are broken and not the underlying structures of justice?

“Justice does not deliver what people need in their most difficult moments. The problem is that we’re still using the same models developed in past centuries. It makes the process of getting justice today slow, tough, difficult, and very expensive.” HiiL, User-friendly justice: justice that works for people

Why do we assume that what we are trying to repair, in its fixed/funded state, is going to serve the justice needs of most of the humans on this earth?

“Knowing what we know today, would we design the system of justice that we have? That is the central question facing us. I suspect for many of us the answer is ‘probably not’ given what is happening around us and our own expectations for how we interact with systems and the services they provide. I suspect many in the public would answer ‘no.’

That is not a bad thing because it gives us a starting point, an opportunity to ask more penetrating questions about how we protect our core values while innovating to ease access into the system and the diversity of services that it can offer. It gives us the opportunity to design a system of justice for the 21st century where virtual ways of relating are balanced against the real challenges and complexities of human disputes.

But if we don’t do this, if we don’t ask penetrating questions, we may all celebrate our legitimacy while losing our relevancy.” — Michael Buenger, Rethinking the Delivery of Justice in a Self-Service Society

“I am here to argue that if there is a way out of the wilderness that too much of our and societies around the world are struggling through — and that many of you in the room are trying to help with — that the path will not be found without a fundamental and critical reckoning with lawyers, lawyering, and the past, present and future of the legal profession within what we continue to call capitalism.” — Julio Avalos, Thoughts on the state of lawyers and legal practice

At what point in our national (US) history have these structures of justice delivered on what most people need?

“Many Americans alive today grew up in a country where there was a strict hierarchy of humanity, of personhood. At the top were white men. Below them were white women. Below them were other kinds of men — Asian, Chinese, and so on. And then finally black men — and last of all, black women.

All hierarchies allocate things. So what was this hierarchy allocating? The three fundamental political goods — freedom, justice, and equality. You enjoyed them in precise proportion, more or less, to your position in this hierarchy — those at the bottom had none, and those at the top had them in abundance.” — Umair Haque, Why American Democracy Was So Easy to Destroy

So then … while the draw of the familiar and the romance of tradition are powerful forces, an increasing number of voices — in the US and beyond — seem to be recognizing that our time and energy may be best spent exploring new systems as opposed to funding fixes to systems that are ineffective in their repaired state.

What Now, Then?

To be fair, the universal basic justice plan does envision funding for alternative mechanisms to resolve legal problems, conflicts, disputes, and grievances. The Task Force report recognizes that “people-centered justice” is what we should be aiming for, not necessarily strict adherence to traditional justice structures.

Also, and as mentioned before, the universe of justice needs making up the mosaic of our global justice gap includes issues of basic physical security and law enforcement that I am not really including in the discussion here. (Although perhaps you could.)

So am I conflating some things to make a broader point? Yes. Does that diminish the broader point? No.

The question remains: what now, then?

Disclaimer: These are my views and do not represent those of my organization or any of our partners. I am solely responsible for my trouble making.

Frequently lost. Occasionally found. Attorney. Professionally crazed cat fan.

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