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How Change Happens$

Duncan Green

Print publication date: 2016

Print ISBN-13: 9780198785392

Published to Oxford Scholarship Online: October 2016

DOI: 10.1093/acprof:oso/9780198785392.001.0001

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The Machinery of Law

The Machinery of Law

Chapter:
(p.96) 5 The Machinery of Law
Source:
How Change Happens
Author(s):

Duncan Green

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198785392.003.0007

Abstract and Keywords

This chapter argues that the state sees the world, learns, and evolves at least partly through the machinery of law. Beyond the set of rules enforced by litigation, the police, and the courts, the rule of law includes legal procedures that prescribe how state officials do their work and how laws are implemented. The law also has a broader role: it encapsulates what we expect of our society and at the same time contributes to delivering on that expectation. To that end, the chapter examines two forms of law and how they might be used to implement change. ‘Customary laws’ are a community-level justice system not codified by the state, deriving their legitimacy from local mores, values, and traditions. The chapter also looks at how power is wielded in international law and how activists can use it in more progressive ways.

Keywords:   law, rule of law, customary laws, international laws, state laws, justice systems

A couple of years ago, I visited a homeless shelter next to Nigambodh Ghat, the main crematorium in central Delhi, the capital of India. The shelter was built on the banks of the polluted Yamuna River, on land shunned by other residents, due to the clouds of smoke from burning bodies rising from the open-air pyres next door. While those flames lit up the night, 100 men of all ages sat cross-legged on their sleeping mats, talking to charismatic activist Harsh Mander about depression and drug rehab. They all seem to be drunk or high, which made the meeting slightly nerve wracking.

Inhospitable as the shelter seemed, it provided these homeless men with a place to sleep and a fixed address. After the meeting, Harsh, who is also a commissioner to India’s Supreme Court, advising it on the right to food, roped me in to hand out passbooks. The next day, clutching their proof of address (even if it does say ‘homeless shelter’) they would all go down to the bank to open accounts. In a month’s time they would get biometric ID cards, the digital gateways to rations, cash transfers, and an official identity.

The shelter exists because in 2011 the Court decreed that there should be one homeless shelter for every 100,000 residents. According to Harsh the Supreme Court is the most effective arm of government on social policy. ‘I’d been talking to government for years on homelessness without result. I wrote a letter to the Supreme Court saying people were dying in the Delhi winter, and this is the result.’1

(p.97) India made me rethink my attitude to the law (and most lawyers), which had previously seemed a stupefying combination of rote learning of cases, tedious obsession with procedures, and impenetrable jargon. Even before meeting Harsh, another light-bulb moment came when a young Spanish lawyer working on food security explained to me, ‘You must understand, the state sees the world through the eyes of the law’. Her words have stuck with me, giving meaning to those endless news items on judicial reviews, test cases, and supreme-court rulings: the state sees the world, learns, and evolves at least partly through the machinery of law. Activists take note.

Beyond the set of rules enforced by litigation, the police, and the courts, the rule of law includes legal procedures that prescribe how state officials do their work and laws are implemented. The law also has a broader role: it encapsulates what we expect of our society and at the same time it contributes to delivering on that expectation.

The law matters for a country’s development. Because social, political, and economic change alters the distribution of resources and power, creating winners and losers, development is rife with conflict. A biased legal system will increase the potential for violence and exclusion, while a fair and effective one can harness the participation and voice of diverse groups to achieve a more consensual resolution of conflict and a smoother ride for an evolving society.

When the rule of law is absent, the consequences are dire. No-one described that calamity better than Thomas Hobbes, in Leviathan, published in 1651:2

Without Law there is no place for Industry, because the fruit thereof is uncertain; and consequently no Culture of the Earth, no Navigation, nor use of the commodities that may be imported by sea; no commodious Building, no instruments of moving and removing such things as require much force; no Knowledge of the face of the Earth, no account of Time, no Arts, no Letters, no Society; and which is worst of all, continual fear and danger of violent death; and the life of people, solitary, poor, nasty, brutish and short.

(p.98)

The law as a driver of change

In theory, the law protects rights, imposes duties, and sets a framework for the conduct of almost every social, political, and economic activity. It punishes offenders impartially, compensates the injured, and enforces agreements. In addition, it endeavours to guarantee justice, promote freedom, and provide security.

But as the French writer Anatole France caustically observed ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’3 In practice, the law reflects disparities of wealth and power: money can hire the best lawyers; white-collar crimes always seem to get off more lightly than blue-collar ones; hidden and invisible power work their magic.

The degree to which impartiality is constrained by power varies widely from country to country. When it comes to using the formal legal system to promote development, it is hard to beat India, which suffers from a sclerotic legislature and an indifferent government. Its hyperactive legal system has stepped into the breach. Social activists like Harsh Mander regularly try to persuade the Supreme Court to rule that the government must do something, and then mobilize people to ensure implementation of the ruling. On the rights to food or education, for example, the Court has been the impetus for some of the country’s best known progressive legislation.

That culture filters down to the grassroots. Activist talk is dotted with references to PIL—public interest litigation. Women in slums told me they were bringing claims under India’s Right to Information Act to find out what their children’s schools should be providing, or who is actually in charge of the community toilets, which had been shut for the last seven years.

But not all activists are as well connected as Harsh, and not all PILs are progressive. Plenty of industry lobbyists use the tactic, leading to (p.99) an overall environment characterized by abrupt and unpredictable policy changes. Judicial activism is also not known for its speed. According to a Ministry of Finance study from the 1990s, to settle the backlog of 25 million cases in India’s courts will take 324 years at the current disposal rate.4 I doubt things have got much better since. From a systems perspective, India’s judicial activism may well compensate for the failings of the state and the political system, yet it sacrifices the law’s ability to act as a neutral arbiter.

When legal systems work for poor people, they can transform the lives of multitudes. In Bangladesh a 2008 Supreme Court ruling confirmed the citizenship rights of thousands of Urdu speakers still living in camps set up after the 1971 War of Independence, allowing them to obtain identity papers that opened the way to formal jobs, votes, and passports.

An analysis by the Overseas Development Institute5 of the case identified six factors that make this kind of positive impact possible: progressive legal frameworks; sympathetic or activist judiciaries (like the one that helped Harsh Mander); a support structure for legal empowerment (so that poor people have access to money, legal aid, social contacts); a motivated government (especially in implementing, rather than ignoring, court rulings); potential beneficiaries and their supporters with the incentive and capacity to cooperate; and activists with the right combination of insider and outsider tactics, who can spot windows of opportunity and forge effective alliances. Since many lawsuits last for decades, an additional requirement is staying power. Former British Prime Minister Gordon Brown is said to have once joked ‘In establishing the rule of law, the first five centuries are the hardest’.

The courts are one of the few institutions that has stood up to autocracy. Until 1994 apartheid South Africa essentially had no (p.100) written constitution or bill of rights. The white-ruled parliament was supreme, and no court had the power to strike down its laws, no matter how unjust or unfair. But South Africa’s courts did have the power to interpret legislation, which they used to blunt some of the more notorious apartheid laws. The Legal Resources Centre, a public interest law firm, won rulings from the country’s highest courts, for example, to reverse the policy that had prevented the families of black urban workers from joining them in ‘white’ cities. Another human rights organization, Lawyers for Human Rights, provided free defence counsel for hundreds of illiterate people being prosecuted for transgressing the apartheid system’s oppressive laws.6

South Africa also exemplifies another aspect of the law: while it is not immune to influence by elites (that much we know), it can also be influenced by social mobilization (‘power with’). I watched fascinated as women’s organizations sang and danced outside a Johannesburg courthouse where cases of domestic violence were being tried. I was told such protests greatly increase the chances of success.

The Legal Resources Centre is one of thousands of small, dedicated legal aid and legal rights organizations around the world. I confess I have sometimes been sceptical of activists lugging huge, tattered statute books full of impenetrable legal jargon to workshops in factories and shantytowns, but the legal rights of the poor do matter. A 2002 survey in Ecuador found that women’s use of legal aid clinics to help with separation and divorce reduced the probability of severe physical violence after separation by 17 per cent. Legal aid clients also raised their chances of obtaining a child-support award by 20 per cent.7

A World Bank study on the use of the courts to enforce the rights to healthcare and education in Brazil, India, Indonesia, South Africa, and (p.101) Nigeria8 posed an intriguing question: does resort to the legal system make governments more accountable (because they are forced to fulfil their promises) or less (because courts are often the preserve of the rich)? The trade-offs can be complicated: in Costa Rica, a single decision by the Constitutional Chamber of the Supreme Court, (perhaps Latin America’s most powerful Constitutional Court) led to an 80 per cent reduction in mortality rates among AIDS patients, but obliged the health system to spend 8 per cent of its medicines budget to treat just 0.012 per cent of its patients.

The World Bank study reached a broadly optimistic conclusion. Judges tend not to try to force governments to do the impossible (when they do, they meet little success). Instead, they have become a part of an iterative policy-making process in which ‘litigation upsets the status quo, creating the context for a joint search for new solutions’ to previously unrecognized problems (such as access to medicines for new diseases) and to reflect shifts in public opinion (such as on the right to food or work). The study concluded: ‘When the courts work in congress with other branches of the state, legalization is democracy by another means.’9

Inequality in access to justice remains profound. A UN Commission in 2008 found that four billion people (over half the world’s population) are robbed of the chance to better their lives and climb out of poverty because they are excluded from the rule of law (although that figure is disputed).10 One of the most painful examples of inequality before the law is the harsh treatment of poor people at the hands of the police, who often act as an occupying army in poor communities.

In some places activists have won significant improvements in police behaviour, as we saw in the Tikamagarh case discussed in (p.102) Chapter 1. ‘Community policing’, an approach that integrates police into community life, has gained a toehold in many countries. Brazil’s police, for example, once notorious for links to death squads and the assassination of street children and other ‘undesirables’,11 spearheaded the innovation of women-only police stations beginning in the 1980s. The stations commonly address family violence, are often staffed by specially trained female personnel, and aim to improve the ability of the police to respond to the unique needs of women. Their success was such they have now spread to fifteen countries in Latin America, Africa, and Asia. In India, a study found that the establishment of 188 women’s police stations resulted in a 23 per cent increase in reporting of crimes against women and children and a higher conviction rate.12

Customary law

In countries where courts and lawyers are in the pockets of wealthy elites, and the laws themselves are structured to protect the privileged, poor people and communities often seek redress through ‘customary law’, a community-level justice system not codified by the state.

Customary law regulates important aspects of daily life, such as disputes over access to land and water, and family issues, such as inheritance and marriage. It derives its legitimacy from local mores, values, and traditions. And it is affordable: one activist from a remote area in Pakistan argues that, ‘Most people in our part of the world who call for sharia courts and laws do so with the belief that it would save them from litigation spread over a lifetime and the exorbitant costs of lawyers. This has little to do with practising Islam or harsh punishments. People just want to keep everything simple.’13

(p.103) In many poor countries, customary law is the rule rather than the exception. According to the World Bank, in Sierra Leone about 85 per cent of the population fell under customary law as of 2003, while customary tenure affects 90 per cent of land transactions in Mozambique and Ghana.14 Such numbers bring home the importance for activists of understanding (and working with) the customary system as well as the formal one, if we are to grasp how poor and marginalized people lead their lives, and help them change things for the better.

I got a crash course in the workings of customary law during a visit to the Pacific archipelago of Vanuatu in 2015, especially when we left the capital, Port Vila, and headed for the village of Epau. Conversations in the capital had all been about government, parliament, and aid; in Epau, that all seemed very distant. Here, the chiefs were in charge; lots of them—primary chief, assistant chief, and the chiefs of the community’s four tribes—all chosen by bloodline (as are most chiefs in Vanuatu). When I asked what they do if a chief misbehaves, the villagers looked nonplussed. ‘We’ve never had a problem, but I guess the village would meet to discuss the problem and work it out’. When money arrives from outside organizations, the chiefs ask for volunteers to manage it, rather than do so themselves.

The balance between formal and customary systems is constantly evolving, according to former Minister for Lands Ralph Regenvanu: ‘It’s organic and fluid. The chiefs have agreed that rape, murder, incest, and theft that is large scale or from foreigners should be dealt with by the police, partly because it is too divisive, and partly because they can no longer apply traditional sanctions (killing the perpetrators)’.15 In contrast, the management of land seems to be ever more in the chiefs’ hands, not least because Ralph pushed through legislation to strengthen the customary system.

(p.104) The formal system of police, courts, government, and parliament is tightly interwoven with the traditional chief system. For example, when riots threatened to break out over the management of the Vanuatu National Provident Fund, the police sent for the local chiefs to calm people down. But they each govern according to different worldviews: the chief system focuses on the collective, whereas the formal system privileges the rights of the individual. Customary law is often about making peace and reconciliation, rather than establishing guilt and redress.

Outsiders tend to over-romanticize customary systems, which are just as prone as any other to imbalances of power. I was told that some of the more ‘political chiefs’ are using the land reform to grab more land for themselves, and that women’s rights are routinely violated. According to Merilyn Tahi of the Vanuatu Women’s Center, in reconciliation processes arising from domestic violence cases, compensation ‘is often paid to the family rather than the women who have been abused.… We should make peace between communities, but women victims need [formal] courts.’16

Combining customary and formal systems

The Mystery of Capital17 by Peruvian economist Hernando de Soto is where I first learned how porous the border between ‘modern’ and ‘customary’ legal systems can be. Its subtitle is ‘Why Capitalism triumphs in the West, and fails everywhere else’ and the back cover carries an endorsement by Margaret Thatcher. But one of its core arguments is, to my mind, progressive (systems thinking rarely sits easily on the Left–Right spectrum). In the most successful economies, property rights emerged organically from social practice and customary laws, not through imposition by experts or central government. De Soto argues that today’s US property laws are essentially based on the ‘extralegal’ practices of its early settlers and (p.105) wildcat miners, and those roots in the daily reality of its citizens are one reason why they have proved so durable.

More broadly, de Soto points out that English legal traditions, now in use across the English-speaking world, evolved out of customary systems (known as ‘common law’). In contrast, Spanish and French legal traditions, (in use throughout their former colonies), were imposed from above, ignoring local customary law or other traditions. Essentially, de Soto is saying we should see the Law as an evolving complex system, rather than a fixed entity.

This kind of systemic approach to the law is starting to show results. Efforts by aid donors to bring peace to the arid pastoralist areas of Northern Kenya, which is dogged by violence, combine elements of formal and customary law in a hybrid approach by creating ‘peace committees’ to resolve conflicts where the formal legal system has failed. In many pastoralist societies conflicts between individuals are perceived to be the responsibility of larger kin groups, who feel obliged to take matters into their own hands. The payment of compensation is a common means of re-establishing peace, reinforcing the social contract both within and between groups, something the formal courts do not recognize.

Peace Committees, formed with the support of NGOs and donors, have sought to institutionalize and regulate this customary approach to conflict resolution. With the participation of local authorities, the committees have drafted detailed declarations, which act as a local system of regulation for the district—in essence locally generated laws. The committees have proved effective and have spread rapidly across the region, but as in Vanuatu there are downsides, born of disparities of power: one declaration stated that the death of a man should be compensated by 100 cows or camels, while the death of a woman is valued at only fifty cows or camels.18

(p.106) While the change potential of hybrid approaches is huge, activists who wish to engage with such endeavours should take note of both the good and the bad sides of the Kenya story, avoiding both ‘West-is-Best’ bias and naive romanticism about the workings of customary systems. In either system and in hybrids, the key is to understand how power operates and how it can be redistributed to benefit those currently excluded.

International law

I have always been a little sceptical of the phrase ‘international law’, because it seems to carry a misleading sense of solidity. How can a set of rules and agreements to regulate the behaviour of states (rather than individuals) be considered ‘law’ when the international system rarely can muster anything resembling police, courts, or sanctions to force states to comply? Power to and power over seem largely absent.

But even though international law may not often be backed by force, it does shape and constrain behaviour and promote a wider sense of how states should behave. If thousands of interactions between nation states pass without a hitch every day, trade is conducted, contracts and rights respected, we have international law to thank.

Some international law is ‘hard law’, enforceable in courts with fines or sentences. The International Criminal Court and (to a lesser extent) the WTO have the power to enforce their decisions with fines and sanctions. Other international commitments are enshrined in conventions and treaties that can be subsequently incorporated into enforceable national law. At the softest end of the spectrum are aspirational statements and promises like the Sustainable Development Goals agreed at the UN in 2015, which may have some ‘teeth’ in the shape of reporting requirements, but do not require changes to national legislation.

Like its national counterpart, international law is often designed for, and used by, the powerful. One example is the proliferation of (p.107) Investor-State Dispute Settlement (ISDS) mechanisms.19 In January 2016, the TransCanada energy company went to court to claim that the Obama administration’s failure to approve the Keystone XL pipeline violated US obligations under the North American Free Trade Agreement (NAFTA). The company demanded $15 billion in compensation from US taxpayers.20

The fact that the US has never lost a NAFTA case shows how power influences the workings of international law. Not only can the US hire vast teams of the best lawyers, it can bring other pressures to bear on weaker countries and on international tribunals. The rules are not meaningless, but nor are they entirely neutral. ISDS mechanisms are a very contentious issue in recent free trade negotiations, like the Trans-Pacific Partnership (TPP) or the Transatlantic Trade and Investment Partnership (TTIP, between the US and EU).21

Activists can also use international law in a variety of more progressive ways, whether to buttress litigation or to press for changes to national legislation and public attitudes. As noted in Chapter 3, international law can help promote norm changes, when it is taken up by grassroots movements.

The 1989 Convention on the Rights of the Child (CRC), also discussed in Chapter 3, obliges ratifying governments to protect children from discrimination, to ensure that their best interests are of primary consideration in policy making, to ensure their survival and development, and remarkably to ‘assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child.’ The CRC rapidly proved something of a phenomenon in international law, becoming the most widely and (p.108) rapidly ratified human rights treaty in history. Only three countries, Somalia, South Sudan, and the US, have not ratified.22

By the time I arrived in Latin America and the Caribbean a few years later, ratification had triggered a spate of new ‘children’s codes’, such as Brazil’s Child and Adolescent Statute (ECA), and child rights bodies like Peru’s Demunas (Municipal Ombudsman for Children and Adolescents). Most progress was achieved (both in law and, more importantly, in the lives of children) where domestic movements of children and their supporters were strong enough to put pressure on governments from below, to match the pressure from above exerted by the existence of the Convention. Across the region, I had hundreds of conversations with activists, both children and adults, who were using the CRC as the basis for their campaigns.

The December 2015 Paris Agreement on climate change provoked a fascinating conversation on the capacity of international law to address complex problems such as reducing carbon emissions. Some thought the agreement’s lack of binding targets were a sign of its weakness, since only a binding document can be enforced by courts and arbitration tribunals. By contrast, Anne-Marie Slaughter, Hilary Clinton’s right-hand woman during her period in the State Department, sees Paris as a ‘model for effective global governance in the twenty-first century’.23

Slaughter argues that the new agreement ‘substitutes transparency for compliance’ and that is a good thing. The commitments in a legally binding treaty would be permanent, which in practice would lock in the lowest common denominator. Paris agreed a process of review that opens the door to ratcheting up emissions targets over time, and which can be adapted to new evidence, opinion, and national (p.109) circumstances. I discuss this in a case study on the Paris Agreement as a change process on pages 171–175.

Some legal scholars view the remorseless spread of international law, both in scale and the range of issues it covers, as ‘the precursor of international government’.24 Like Gulliver being tied down by the Lilliputians’ threads,25 the web of international law has grown and already exerts a surprising level of discipline on national governments. It has done so in a de Soto-esque fashion, expanding and evolving from its roots in the conduct of war and diplomacy to include trade, environment, and human rights. Its future will be shaped not only by the powers that be, but also by activists who find ways to use it to promote progressive change.

The law as a system

Like many institutions that at first sight appear fixed and monolithic, the law is a system in constant flux. Not only are old laws replaced by new, but the interpretation of laws evolves, including the weight assigned to customary systems. In the words of renowned US Supreme Court Justice Oliver Wendell Holmes, ‘The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics’.26

It seems sometimes evolutionary tides are not bound by national borders. In much of Africa and Latin America, the 1990s saw the end of a twenty-year period in which the state had reigned supreme, largely untroubled by legal constraints, swept aside in part by an international surge in interest in rights-based approaches and international human rights law.

(p.110) A new generation of rights-based constitutional reforms were enacted, like Costa Rica’s in 1989, which gave international human rights treaties the same force as domestic law. Constitutional courts in South Africa, Colombia, and elsewhere were set up to oversee new constitutions, becoming lightning rods for legal activism. Colombia’s constitutional court heard 800,000 cases on the right to healthcare between 1999 and 2009 and ended up ordering the systematic restructuring of the country’s health system because, despite previous legislation calling for universal coverage and other improvements, the government had failed to act.27

Some legal systems remain rigid and inflexible and, like the old forest systems discussed in Chapter 1, exhibit periods of sclerosis punctuated by periods of violent disruption and upheaval. But ever more of them have grown malleable, able to adapt to the evolving distribution of power, interests, and norms in their changing societies. In what some lawyers call a ‘legal social justice revolution’, progressive lawyers around the world recognized that the law is not an immovable institution, and began the slow process of harnessing the law to promote human rights and equality and to address privilege and discrimination. As a result, the law has evolved from a musty, rigid defender of the status quo (especially those aspects that reinforced power and inequality) to an active player in creating and recreating the society in which we live.

Conclusion

There is a character in Shakespeare’s Henry VI who declares ‘The first thing we do, let’s kill all the lawyers.’28 However tempting, I think he’s wrong. I now understand why so many activists, especially in the US, are (or want to become) lawyers.

(p.111) The legal system, like any institution, is not a level playing field. The rich and powerful can hire better lawyers, can lobby law makers, and generally get a better deal. But not always—if people organize, build the right coalitions, and pursue the right argument and tactics, laws and lawyers can bite back, governments and Big Men can lose cases.

The law will remain an essential weapon in the armoury of activists around the world. In the ever-expanding realm of national and international law, unexplored avenues abound. Oxfam lawyers are currently investigating whether climate change litigation could follow the path of tobacco, and my guess is that obesity and road traffic accidents will one day follow. The challenge will be to build bridges between legal activism and other efforts to influence the system, since the two worlds are often divided by impatience, different theories of change, or the chasm of language.

Now that we have examined the administrative and legal systems, the next chapter will explore the third area of the state in Fukuyama’s schema—the institutions that provide accountability.

Further Reading

Bibliography references:

T. Bingham, The Rule of Law (London: Allen Lane, 2010).

T. Carothers, ed., Promoting the Rule of Law Abroad: In Search of Knowledge (Washington DC, Carnegie Endowment for International Peace, 2006).

V. Gauri and D. Brinks, eds., Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008).

R. Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Washington DC, Carnegie Endowment for International Peace, 2012).

B. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2005).

UNDP, Making the Law Work for Everyone. Volume 1. Report of the Commission on Legal Empowerment of the Poor (New York: Commission on Legal Empowerment of the poor/United Nations Development Programme, 2008).

J.A. Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa (New York: WW Norton, 2001).

Notes:

(1) Author Interview, November 2012.

(2) Thomas Hobbes, Leviathan (Oxford: Oxford University Press, 1996), p. 84.

(3) Anatole France, The Red Lily, 1894, chapter 7.

(4) Gurcharan Das, India Grows at Night: A Liberal Case for a Strong State (New Delhi: Penguin Books India, 2012).

(5) Tam O’Neil, Craig Valters, and Cynthia Farid, Doing Legal Empowerment Differently: Learning from Pro-Poor Litigation in Bangladesh (London: Overseas Development Institute, 2015).

(6) United Nations Development Programme, Human Development Report 2002: Deepening Democracy in a Fragmented World (New York: Oxford University Press, 2002).

(7) World Bank, World Development Report 2006. Equity and Development (New York: Oxford University Press, 2005).

(8) Varun Gauri and Daniel Brinks, eds., Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008).

(9) Varun Gauri and Daniel Brinks, eds., Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008).

(10) ‘Making the Law Work for Everyone. Volume 1. Report of the Commission on Legal Empowerment of the Poor’ (New York: Commission on Legal Empowerment of the poor/United Nations Development Programme, 2008).

(11) Gilberto Dimenstein, Brazil: War on Children (London: Latin America Bureau, 1991).

(12) UN Women website, ‘Women’s Police Stations/Units’, www.endvawnow.org/en/articles/1093-womens-police-stations-units.html.

(13) Masood Ul Mulk, personal communication, 4 January 2016.

(14) World Bank, World Development Report 2006. Equity and Development (New York: Oxford University Press, 2005).

(15) Author Interview, November 2015.

(16) Author Interview, November 2015.

(17) Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000).

(18) Caroline Sage, Nicholas Menzies, and Michael Woolcock, Taking the Rules of the Game Seriously: Mainstreaming Justice in Developmentthe World Bank’s Justice for the Poor Program, Justice & Development Working Paper Series, 7/2009 (Washington DC: The World Bank, 2009).

(19) See http://investmentpolicyhub.unctad.org/ISDS for an interactive map of ISDS cases.

(20) Todd Tucker, ‘TransCanada is suing the U.S. over Obama’s rejection of the Keystone XL pipeline. The U.S. might lose’, Monkey Cage blog, Washington Post, 8 January, 2016.

(21) Todd Tucker, ‘TransCanada is Suing the U.S. Over Obama’s Rejection of the Keystone XL Pipeline. The U.S. Might Lose’, Monkey Cage blog, The Washington Post, 8 January 2016.

(22) Human Rights Watch, ‘25th Anniversary of the Convention on the Rights of the Child’, 17 November 2014, www.hrw.org/news/2014/11/17/25th-anniversary-convention-rights-child.

(23) Anne-Marie Slaughter, ‘The Paris Approach to Global Governance’, Project Syndicate website, 28 December 2015, www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12.

(24) Joel Trachtman, The Future of International Law: Global Government (New York: Cambridge University Press, 2013).

(25) Jonathan Swift, Gulliver’s Travels (London: Benjamin Motte, 1726).

(26) Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Company, 1881), p. 1.

(27) Alicia Ely Yamin and Siri Gloppen, Litigating Health Rights (Cambridge, MA: Harvard University Press, 2011), p. 343.

(28) William Shakespeare, Henry The Sixth, Part 2, Act 4, scene 2, 71–8.