Rule of Law and Digital Justice: Scaling Alibaba and eBay

14 February 2019   ·   Adeel Hussain

Top-down capacity building measures in rule of law are inefficient and may lead to illegitimate results. Germany should rather open pathways promoting user-friendly access to justice. One way would be through technology, as Alibaba and eBay are already offering it to millions of unhappy costumers. Experts commissioned by the Foreign Office in Berlin recently developed fresh ideas; now it’s time to realise them.

In 1914, eleven years before he wrote his most famous work, The Castle, Franz Kafka published a novel in which he worked through the quotidian functioning of the law. “The law must be accessible for anyone at any time”, Kafka vents, before shooing his protagonist from this utopian ideal into a rugged quest for justice. Much of his legal drama is set negotiating access to legal spaces. Claimants have to report to grumpy gatekeepers, lawyers speak legalese, and judges warm to personal favours. And all of this despite, Kafka writes in The Trial, “the law itself being decent and upheld”.

Blurred lines between the rule of law and benign despotism

Kafka shows that what modern citizens conceive as formal legality may not necessarily be experienced as legitimate or just. Though the feeling that legality and legitimacy are not one and the same, a conceptual shift triggered a new polarisation between these two concepts in the nineteenth century. During this period, European nation states began to formalise legal rules on an unprecedented scale. In the first backlash against these formalisation efforts, the rule of law was accused of standing in direct opposition to demagogic conceptions of “real” justice. The legality of the bureaucratic state, Kafka would say, lacks legitimacy, which it can only reclaim by delivering justice to the people. The rule of law, in such accounts, does not overlap with justice or democracy. In fact, one only needs to look at Europe today to see that the lines between the rule of law and benign despotism have once again become blurred.

The intimate relationship that the rule of law has enjoyed with strands of despotism explains how and why utilitarian legal thought was tested first in the colonies before it was imported back to Europe. Colonial India became an experimentation hub for new legal ideas. In a nutshell, British administrators made two conceptual moves. The first one was performative. Judicial infrastructure had to be expanded and, in many cases, built, to allow claimants to bring up their grievances before courts. The second was pedagogical. As a nineteenth century Whig politician put rather crudely, what was needed for Britain’s rule of law to succeed in India was “a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals and in intellect”.

Capacity building measures are inefficient

While no longer racially tainted, the underlying premise persists today. Capacity-building measures still tool around in the same conceptual framework: enlarging legal infrastructure and widely sowing educational activities to harvest mature democratic civil servants. Proponents of this view push for strategic consultancy. They endorse well-meaning top down approaches. They target key political stakeholders in developing countries, making them aware of their rights and duties under public international law; train judges in higher and lower courts on how to balance constitutional provisions against one another; attempt to make courtrooms more accessible for citizens; and assist parliamentarians to write better laws. And there is much to be gained from such approaches. For one, such activities have had a positive impact in establishing necessary legal structures in the aftermath of severe conflicts.

Apart from their conceptual shortcomings, capacity building measures are costly. The expenses for flights, accommodation, and catering quickly spiral into big sums. At the same time, the results of such activities remain difficult to measure. Project assessments that are routinely taken after such activities, at times, make the reader wonder if the participants really benefitted from the workshops and consultancies at all.  

Open pathways which promote user-friendly access to justice

Strengthening the rule of law through performative and pedagogical measures seems quaint. The state is puffed up as the sole legitimate arbiter in the distribution of justice. What this view ignores is that the rule of law just stands in as a viable marker for shielding citizens from executive power and, perhaps more importantly, providing them with effective legal services, and justice. I am thinking here of justice as an amenable way to resolve legal disputes, not a grand philosophical concept that needs to be transplanted from the West to the rest.

Going forward, the German Government’s strategy should, at its core, aim to open pathways which promote user-friendly access to justice. One way of thinking about this is to boost research into alternative dispute resolution through technology.

Scaling Alibaba and eBay

Much of the dispute resolution in private matters has already moved online. Platforms such as Alibaba and eBay are offering cost-effective ways to serve millions of unhappy costumers. Germany and partner states should think about how their dispute resolution mechanisms could be made operational and scaled for other fields of litigation.

This would involve several steps. First, any serious engagement would begin with measuring the justice needs in a specific region. Such needs are culture-specific. But cultural knowledge, on which project planning rests even today, is often interlinked with epistemological failures resulting from (qualitative) anthropological works. International actors such as Germany should therefore focus on large-scale surveys instead. These surveys would help to create a concrete list of the justice needs of the target group and would have to be refreshed cyclically.

Once the justice needs have been quantified properly, the next step would support local justice providers to develop ways of resolving these disputes. Stuffy courtrooms with overworked judges are clearly not the way forward. Smartphones have become widespread in much of the developing world and could replace courtrooms for most legal processes.

Digital justice is the only way forward to spread justice and peace

The model of strategic consultancy of the key stakeholders in the justice system would also benefit from a digital turn. Most rule of law workshops are repetitive. Why do German and other actors not record these lectures and make the content available on online platforms? In this way, they could be delivered to the target group more economically and expeditiously.

A fresh start is necessary to snap out of the centuries old accessibility rut and dive into the possibilities that digital technologies offer the yet-to-be-tapped rule of law advisory sector. Digital justice is a unique and comprehensive solution and increasingly, the only way forward to spread justice and peace.

As part of its new rule of law strategy, the German government should support projects that incorporate digital technologies to find user-friendly solutions to justice. A group of experts have recently developed fresh ideas at the Foreign Office in Berlin; now it’s time to translate them into reality.