Fordham Lecture Series
Legal Empowerment of the Poor

The moderator for the evening was Olav Kjorven, Director, Environment and Energy Group, UNDP. Kjorven recognized the issue of legal empowerment of the poor as a critical issue on the international public policy agenda. As a frame for the discussion, Kjorven suggested there are three main, protracted issues facing the global community: the poverty challenge, the environmental challenge (climate change, depletion of biodiversity, unsustainable patterns of extraction and production), and political challenges (conflicts, war, terrorism, and security). He suggested that an argument could be made for there being, at the core of all of these challenges, one central issue: a lack of a fair and inclusive rule of law. A large number of people are excluded, lack autonomy and options, lack the ability to formalize their identity, and all of the above lock up the wealth of nations in the extralegal sector. While the development community has evolved through several marked paradigm shifts over the past decades, one could also make the argument that the paradigm has stayed much the same: top-down efforts where money is thrown at the problem. The competing empowerment paradigm never really took off. The result is that we see people being compelled to exit formal structures of law. Government is seen as the biggest problem standing in their way. Urbanization is taking over government resources and efforts aren’t adding up to what we had hoped.

The High Level Commission for the Legal Empowerment of the Poor is looking at the problem through a different lens. They are challenging complex social and political assumptions, at which property rights are at the center. Should property rights be the privilege of a few? How can labour rights be broadened? How can access to justice be broadened? Can legal empowerment and property rights be the catalyst of change for the poor? What are the realistic policy options?

The first panelist presenting was Dan Tunstell, Director of International Cooperation, World Resources Institute (WRI). Tunstell began with a slide that read: “For the rural poor, democracy doesn’t matter, unless it leads to improved livelihoods. Then it is essential.” He provided some figures to ground the discussion, one of which being that 70% of the world’s poor live in rural areas. In a graph depicting numbers of people living in poverty over the past years, there was a marked downward trend for Asia, while Africa was steady. Tunstell framed his discussion in three pillar areas: governance, ecosystem services, and poverty. Governance matters in determining the benefits the poor get from ecosystems. The three elements earmarked by Tunstell included resource rights (tenure), representation of local needs and priorities (decentralization), and meaningful access to information and courts (procedural rights). These elements have to progress together in some way. Tunstell used the example of the small Indian village of Darewadi. Governance, technical support, and financing were all critical. The village received guidance and training (both technical and political decisions), an NGO called Gram Sabha negotiated with the state of Maharasha for village rights, and village watershed committees were set up to directly manage the project.

In terms of ecosystem services, the provision of food and wildlife, regulating services, and culture, it was noted that many of these do not pass through the marketplace in the same way as traditional resources. They are in some cases nonmaterial, but are also extremely valuable. In terms of environmental income, a huge part of rural incomes come from agriculture. Tunstell noted that empowering the poor with resources can enable them to manage ecosystems more effectively and to significantly increase their environmental income. He also outlined three challenges: 1) What do we mean when we say ‘scale-up’?; 2) Have to develop enabling policies; and, 3) How to work best with intermediary organizations?

The second panelist was Paolo Galizzi, Marie Curie Fellow and Visiting Associate Professor at Fordham University School of Law. Dr. Galizzi stated that it is important to first define the issues. What does legal empowerment of the poor mean? He suggested breaking it down into its three component parts: what is legal?; what is empowerment?; and who are the poor? In the context of the evening’s discussion, Galizzi noted the definition of law has been traditionally viewed in a very strict and formal sense: international treaties, national laws, statutes, etc. Customary law, however, was seen to contain more relevance for the poor. There is then a need to combine the formal and informal. Galizzi introduced the example of female mutilation and women’s rights. These customary laws/practices can be barriers to promoting the rights of the poor. Is it a universal concept? Is it a national concept? We need to start viewing the law as much more than just the rules alone. We should begin to use the legal system to give people control over their lives. The legal system traditionally empowers individuals. Sometimes, however, the state is the one that oppresses us. Traditionally, there has been a top-down approach and it is interesting to see legal empowerment discourse reversing that. You increasingly see the poor and disenfranchised taking power and demanding control over their lives. People are actively requesting their rights. Galizzi used the example of immigrants recently taking to the streets to demand recognition of their contributions to this country. He made the distinction that you are not only poor if you do not have a certain income, but also if you are excluded from the legal system – legally impoverished. He went on to outline four areas for concentration. The first was designing and drafting legislation with and for the poor. He asserted we need the participation of the poor, need to encourage ownership of these policies by the poor, and need to help the poor understand their rights. An important question to consider, however, is what if the rules that come from broad involvement of the poor result in laws that we are not comfortable with? The content of these rules may throw a lot of issues up in the air. The second is promoting an understanding of legal rights. Education on rights is extremely important. How can you benefit from rules that you cannot understand? Thirdly, there needs to be a focus on access to justice. As things currently stand, the poor largely access justice in informal justice sectors. We need to look at the problems in the formal sector and the potential of compatibility between different legal systems. Finally, the issue of enforcement: decisions need to be implemented. How can the poor translate decisions in their favor into action? Galizzi concluded with what he identified as a forgotten issue in the development community: higher education. Lawyers in developing countries need to be trained and there is a need for more registered universities. He also wished to conclude on a positive note suggesting that while there are many challenges, that at least the journey for the legal empowerment of the poor has begun.

The third and final panelist was Naresh Singh, Executive Director of the High Level Commission on the Legal Empowerment of the Poor Secretariat. Singh began with some questions. Why do we need a High Level Commission on the Legal Empowerment of the Poor? In many cases when we know what to do, why is it that we are not doing anything about them? He noted that the fundamental value added by this Commission will be the mobilization of political will to do what we all know needs to be done. The Commission, he noted, is also in place to identify gaps. Singh asserted that he believed empowerment to be nonsense and made the distinction between empowerment and self-empowerment. He stated that he never found an instance where people who had power gave to those who did not have power willingly, without recourse to violence. In terms of a background to the Commission, Singh suggested it was important to generate an inclusive legal system and to converge legal and extralegal systems. Extralegal refers to those who are genuinely trying to make a living but are excluded from the legal system. The fundamental pillars in trying to do this work necessitate engaging how to make property rights work for the poor and to abandon the a priori assumption that a one-size-fits-all approach will work. Another fundamentally important question of the commission is how people will use these property rights to get themselves out of poverty. There is a need to facilitate the link between property rights and social and economic output. Another important question is to what extent is informality servicing poverty reduction and is this contribution sustainable? Singh suggested that we should not assume a priori that a contribution from the extralegal sector to poverty reduction is an impossibility.

As an operational framework for the High Level Commission on the Legal Empowerment of the Poor, the group focuses on the rule of law, access to justice, civic engagement, labor formalization, simplification of business registration, access to finance, fungible property rights, and secure urban and rural land rights. Special considerations guiding their work include gender equality, indigenous peoples, and the general sustainability of the work plan, and work is guided by the following working groups: access to justice and the rule of law, property rights, labor rights and laws, business regulations and access to finance, and a tool kit. Singh concluded by suggesting that the Commission hopes this program of work will lead to global momentum in which the world will give the poor the chance to get out of poverty and to take greater power in their own lives.

The participatory session was started by Kilaparti Ramakrishna of UNEP who spoke briefly about his involvement in the Poverty Environment Initiative (PEI), the work of PEI, and the question of what it is the law can do to provide a functioning, empowered system for the poor.

The opportunity was extended to audience members to pose questions to the panelists. The questions included the following: How does this concept work in reality? Should land rights be the focus of the Commission? How does the discussion relate to trade liberalization? How is the Commission dealing with issues relevant to women? How were the case studies selected? Is empowerment a luxury? How do cultural resources fit into the Commission’s work? What is the scale of the Commission’s work going to be (townships, regional, national)?

Land reform was recognized as a highly political issue and not an easy undertaking. It is for this reason that there needs to be global political momentum. It was also recognized that there is some discomfort and apprehension from the development community in seeing that a neo-liberal approach to rights may provide the resolution to poverty issues. Is this merely an extension of the Washington Consensus or is it a new paradigm? Institutions are the rules of the game and we are in the business of changing the rules of the game. The danger lies in handing out titles to everyone and seeing how things go from there. There is an underlying belief in the market in the work of the Commission, but also recognition that it has its limitations. We need to get the poor to participate in the redesigning of the law to focus on labor rights and labor standards. In terms of trade liberalization, the Commission and the poor themselves have to work with what is taking place on the ground right now. Beyond that, there is a need to continue to push the WTO and our countries to reduce subsidies etc. In terms of empowerment being a luxury, the panel responded that it is not and that people are demonstrating they are willing and ready to make the sacrifices for legal recognition. There is a common misconception that what we have and take for granted in the developed countries is what the poor people do not need. It was generally stated that the Commission should not come to conclusions too quickly. Singh closed the evening by stating, “It may not be tomorrow, but we have started.”