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Investigating the Links Between Access to Justice and Governance Factors: An Objective Indicators’ Approach

By: Edgardo Buscaglia

This is part of a five-country study prepared for the United Nations Office for Drug Control and Crime Prevention.

Democracy functions as a system with formal and informal institutional interrelated mechanisms serving the purpose of translating social preferences into public policies. Enhancing the effectiveness of society’s dispute resolution mechanisms is also a way to address social preferences through public policies within the judicial domain and is also a way to ensure that the institutions responsible for the interpretation and application of laws are able to attract those parties who can’t find any other way to redress their grievances and solve their conflicts.

In order to avoid cultural, socio-economic, geographic, and political barriers to access the court system, the judiciary must adopt the most effective substantive and procedural mechanisms capable of reducing the transaction costs faced by those seeking to resolve their conflicts. If barriers to the judicial system affect the socially marginalized and poorest segments of the population, expectations of social and political conflict are more common, social interaction is more difficult, and disputes consume additional resources.

It is clear by now that a centralized “top-down” approach to law making has caused social rejection of the formal legal system among marginalized segments of the populations in developing countries who perceive themselves as “divorced” from the formal framework of public institutions.  This “divorce” reflects a gap between “law in the books” and “law-in-action” found in most developing countries.

As a result, large segments of the population who lack the information or the means to surmount the significant substantive and procedural barriers seek informal mechanisms to redress their grievances. Informal institutions do provide an escape valve for certain types of conflicts. Yet many other types of disputes involving, for example, fundamental rights and the public interest remain unresolved. This state of affairs damages the legitimacy of the state, hampers economic interaction, and negatively affects the poorest segments of the population.

This background paper addresses these concerns by using case study analysis to identify the links between access to justice and poverty, and by then identifying those governance-related factors blocking the access to justice to the poorest segments of the population.  We assess the nature of these links through the study of three cases that describes and analyzes the patterns of demand for formal and informal mechanisms to resolve disputes by samples of the rural population in Colombia’s Andean Region—where 70 percent of the nation’s population lives. Two rural areas within the Department of Boyaca have been selected for this study: Pauna and San Pablo de Borbur. We must note that these two municipal jurisdictions have been experiencing relatively low levels of violence and guerrilla activity compared to the rest of the Andean Region. These two regions will be compared to a third Colombian rural area (Socha) where neither formal nor informal effective mechanisms to resolve disputes are currently functional.

 

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Uploaded on: Dec 01, 2015
Last Updated: Dec 18, 2015
Year Published: 2001
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