Vol. 14 No. 4 (April 2004)

BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW, by Erik G. Jensen and Thomas C. Heller (eds.).  Stanford: Stanford University Press, 2003.  435 pp.  Cloth $70.00.  ISBN: 0-8047-4802-0.

Reviewed by Rosemary Hunter, Griffith Law School, Griffith University.  Email: Rosemary.Hunter@griffith.edu.au.

The title of this book, BEYOND COMMON KNOWLEDGE, refers to the oft-repeated mantra of law and society scholars that assumptions about law and legal institutions and how they operate are frequently revealed by empirical research to be untrue.  At the same time, empirical research can provide insights that would be otherwise unavailable.  Some, but not all, of the essays in the book make or demonstrate these points.  The subtitle, EMPIRICAL APPROACHES TO THE RULE OF LAW, also describes some but not all of the essays in the book.  Most deal with judicial reform programs of one sort or another, but not all of these are motivated by or related to promotion of the rule of law.  The subtitle seems rather to have been dictated by the fact that the book was generated by Stanford Law School’s Rule of Law Program.  The essays also take a variety of empirical “approaches,” variously advocating empirical study of courts, presenting empirical data about court systems, or making more abstract arguments about justice systems or judicial reform, drawing upon empirical data (or the lack thereof) to illustrate their points.

As well as this considerable variety, the essays are of somewhat uneven quality.  The two best pieces in the book are by Linn Hammergren and Fu Hualing. Fu’s essay is informative, persuasive and well-structured.  He poses the question “is the Chinese judiciary independent, competent, and fair?” and proceeds to demonstrate that the answer varies depending on the type of case being discussed.  This, in turn, is due to the fact that different types of cases occur within different institutional structures and have varying political significance.  Hammergren’s comprehensive essay on “International Assistance to Latin American Justice Programs” presents a devastating critique of donor agencies’ judicial reform projects.  She catalogues a host of structural problems that create all sorts of perverse incentives and result in millions of dollars being spent on projects of questionable value.  Moreover, agencies’ thinking about what the projects they promote are designed to achieve appears to be vague and confused and is rarely subject to empirical validation.  Hammergren asks the pertinent questions-“are the right developments being leveraged?” and “what are the opportunity costs of justice reforms as opposed to spending in other sectors?”-to which the agencies simply do not have satisfactory answers.  The essay is a compelling call for USAID, the World Bank, the IDB, the UNDP, and their ilk to fundamentally rethink their activities in this area.

The weakest essay, unfortunately, is the opening chapter by José Juan Toharia on “Evaluating Systems of Justice Through Public Opinion.”  Toharia argues that courts’ performance should be assessed by public opinion surveys, on the rationale that courts are service providers (an assertion not subjected to any scrutiny or consideration of other roles and possible priorities the courts may have).  According to Toharia, “In a citizen-oriented system of justice, [users’] opinions and evaluations should be a primary source of information on the quality of judicial services” (p.24). At the same time, Toharia dismisses the views of “expert” professionals working in and around the courts as biased, tainted by vested interest, and emotionally and ideologically attached to the status quo.  Such sweeping generalisations do little to advance understanding. 

Moreover, Toharia fails to observe or examine the fact that public opinion is a constructed phenomenon.  For example in Australia at present, courts are at the centre of national political debates on issues such as law and order, Indigenous land rights, refugee policy, and family breakdown, and have been consistently attacked by politicians and the tabloid press.  Public opinion polls on the performance of those courts would tell us everything about the state of debate but nothing about how “well” the courts are operating.  Majority condemnation of a court might indicate that it is effectively doing its job of protecting the socially vulnerable and upholding minority rights.  To be fair, the examples Toharia cites are in democratising countries, such as post-Franco Spain and post-Communist central and eastern Europe.  However he also draws upon evidence from the European Union more generally, and his argument purports to be universal rather than confined to particular political junctures.  Toharia does acknowledge that there are potential “communication problems” between courts and the public, and argues that courts need better communication strategies.  But if this were to occur, would it mean that public opinion polls simply provide a measure for the success of courts’ PR strategies?  This frustratingly circular essay ends with a detailed technical discussion of how to design suitable questions and conduct a survey, which is out of place in the context of the rest of the book.

The book is structured as a series of paired essays - two on Europe, two on India, two on China, two on Latin America, and two on the “rule of law” activities of international donor organisations.  The last essay is an “Immodest Postscript” by one of the book’s editors, Tom Heller, which also focuses on international donors’ judicial reform projects.  It is interesting that none of the essays take US courts or justice systems as their subject, although some of the essays hold up US models as implicit or explicit comparators.  Presumably this is because US courts are a model for, rather than the object of, “rule of law” programs, although the same might be said for European courts.  There is a tendency for the book to assume that readers know how the US courts function but need to be instructed about the differences and peculiarities of foreign legal systems.  As many US law and society scholars have demonstrated, however, empirical research has also shown the operation of US legal institutions to be “beyond common knowledge.” 

Sometimes points are made that could apply equally well to the domestic context.  For example, Marc Galanter and Jay Krishnan, in discussing the Indian dispute resolution institution known as LOK ADALATS, coin the term “debased informalism” to refer to dispute resolution processes that “are commended not by the virtues of the alternative process but by the need to escape the formal institutional process” (p.116).  This is a fair point, but is it an exclusively Indian, or developing world, phenomenon?  The description certainly rings many bells in my experience.  How is it different from settlement processes or diversion to court-annexed mediation in the US?  Is there really any such thing as undebased informalism?  And where is Galanter and Krishnan’s prescription for a good informal system paired with a good formal system actually in place? 

Similarly, Donald Clarke argues that Western reform projects on the Chinese legal system have tended to be based on unfounded assumptions about the importance of courts in the Chinese legal system, and the importance of the legal system in the Chinese polity.  Clarke notes that other institutions such as the procuracy, legal affairs offices, legal services and mediation and arbitration schemes play at least as important a role as the courts, if not more so, but this observation about the importance of justice institutions other than the courts could apply with the same force to Western systems.

There are few connections made between the pairs of essays, or between essays dealing with different systems.  For example, after Galanter’s and Krishnan’s rich essay on Indian LOK ADALATS, which discusses their place in the legal system, their processes and outcomes, and possible alternatives that might achieve more satisfactory results, Robert Moog’s piece on Indian tribunals comes across as rather thin.  Fu Hualing uses three criteria to assess the performance of the Chinese judiciary - independence, fairness and competence - while Hector Fix-Fierro uses five criteria to assess Mexican judicial reforms - independence and accountability, efficiency, accessibility, and competence.  Some of the chapters are attentive to the politics of reform (e.g. Fix-Fierro), and some to the economics (e.g. Heller).  Carlos Pe–a Gonz‡lez’ essay on judicial reform in Chile does both, but does not attempt to draw together these two approaches into an integrated conclusion. Thomas Heller’s final chapter presents a very dense analysis of why both the US (judicial capacity building) and European (strengthening judicial independence) approaches to rule of law reforms have produced disappointing results.  Heller’s prescriptions arising from this analysis are influenced by law-and-economics, involving more internal legal competition (e.g., via domestic federalism, strong ADR mechanisms), and better incentives to disrupt current practices.  It might have been interesting to test these proposals against the chapters on India or China.

So what do these disparate essays have in common?  For one thing, it appears that empirical approaches are a largely masculine domain.  Only one of the book’s chapters is written by a woman (Hammergren).  Secondly, there are a series of institutional connections between the book’s authors, and here I must declare my own implication in this network.  Having studied at Stanford, consulted for the World Bank, and been a member of the Research Committee on Sociology of Law, I have been taught by, worked with, am otherwise acquainted with or at least familiar with the work of most of the authors, as well as two of the commentators whose endorsements adorn the back cover.  It’s a small, globalised world.

One potential virtue of the diversity of this book is that it might thereby attract a wider audience than a more focused collection might have done.  There is something in here of interest to a large number of scholarly constituencies - from Erhard Blankenburg’s detailed statistical comparison of European justice systems, to Erik Jensen’s thick and thin definitions of the “rule of law,’ and everything in between.  The essays are all thought-provoking, and in some cases really excellent.  And importantly, they add to the very limited stock of published and accessible empirical data on world legal systems.   

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Copyright 2004 by the author, Rosemary Hunter.