“Justness” Means Supporting the “Human Rights Economy”

Billions of dollars have been spent in promoting and trying to develop the rule of law throughout the world. A civil society requires a predictable judicial process with fair remedies in order to secure the peace and attract investment and business. The public must perceive that a judicial system is fair and just. Yet often, the formal judicial system is undermined by local custom. This was the issue in Afghanistan where a case that Kimberley Motely, an international lawyer, was working on made the front page of the New York Times. In that case, a 6 yr. old Pashtun girl named Naghma was ordered to enter into a formal engagement with the 19 yr. old son of a debt holder’s family, after her father was unable to repay a $ 2500 loan. The order was made by an extra-judicial body in Afghanistan known as a Jirga. The Jirga, made up of tribal elders and all men, decided that despite the formal law, this was a just result. Ultimately, Motely, got a Jirga of Appeal to overturn the order based on Afghan law. As she has aptly pointed out, “we should all be investors in a global human rights economy.”

Source: Tori Rector
Source: Tori Rector

The third clause of the Preamble of the Universal Declaration of Human Rights of the United Nations eloquently and aptly states, “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” As a concept, adoption of the rule of law makes sense, but as the American Bar Association points out, it is often a problem and difficult to define what “just” means in the context of another culture.

The fact is that the underlying context in each country does matter. Consequentially, in front of the installation of any judicial system there must be education, collaboration and consensus building. Local customs cannot undermine the statutory rules, they must compliment them. The rule of law cannot simply be snapped into place like an engine part on an assembly line of justice, it must be built brick by brick upon a solid community foundation. It is a complex and nuanced effort. If the people do not believe in efficacy of a judicial system and support the underlying judicial framework, statues and local laws, then the law is not taken seriously. When that happens, civility breaks down and economic chaos follows.

The operational underpinnings of the law, conflict resolution, access to justice, speedy trials, etc., revolve around the ability of a judicial system to take hold and produce consistent results. At times, case precedent does not exist or case results cannot be technically captured in a meaningful way. As a result, criminal punishments sometimes seem too lenient or alternatively too severe. It is difficult amid cultural and political issues to strike a balance.

In the United States, we have the benefit of a judicial system that although not perfect is widely supported, makes use of case precedent, and is generally perceived as fair. We rarely see cases involving judicial corruption. Even the transition of power has been tested by this system with peaceful results. The people may not always agree with the outcome, but they respect the system, the judges, and the people that support it. For us, that began with an organic formation of a Constitution that was designed to place the power in the hands of the people. For many developing countries, the infrastructure for such a complex system simply does not exist. As a result, the culture, the local customs, and the law must co-exist with a judicial system that can produce a fair result in a reasonable period of time.

On a basic level, as Motley stated in a later Ted Talk, the rule of law is about “justness” – using laws for their intended purpose: to protect.” Justness must also include predictability and accessibility. If a judicial system cannot be accessed, then people will seek alternative mechanisms to resolve disputes. If the outcome for similar set of facts is not predictable, how can a judicial system be perceived as fair?

The bottom line is that “justness” means different things in different cultures, but the recognition of human rights is a common denominator, that any judicial system must recognize in order for people to embrace the rule of law. That begins with a process that is perceived as accessible, fair, and predictable.


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