A human rights approach to empowerment?
Hassainxxv has noted that civil and political rights and economic, social and cultural rights are recognised as the minimum human rights standards by the UN and that these are inextricably linked to the people-oriented responses needed to attain justice. He highlights that too often legislators and governments exercise arbitrary discretion behind closed doors and make policies without asking those affected by these very policies, a point noted in Chapter 3.xxvi
Hassainxxvii argues that an integrated approach to human rights and development is needed as well as the concrete implementation and ability to action these rights. He identifies some preconditions for it to occur; such as education and awareness of the people it affects, information and communication, effective participation (including access to information, legal resources, media, officials, agencies, institutions, freedom of communication, self-managed organisations and ability to engage in organised activities), accountability and transparency.
Carmona and Donaldxxviii argue for a theory of legal empowerment that adopts a comprehensive and holistic approach that looks beyond judicial and legal reforms. This theory tackles broader structural, social and economic factors with a wider human rights approach that puts the emphasis on challenging existing asymmetries of power. They assert that building consensus to meaningfully improve access to justice can be assisted by the explicit use of human rights discourse and principles.
Van Rooij,xxix however, is sceptical about limiting approaches to human rights alone. This is because the realisation of human rights often requires a change in the legal system. At the same time, the international discourse on the human rights, with its focus on international norms, can lose sight of the local reforms needed. This is noted as a criticism of the UN in the
Empowerment models 53 introduction to this chapter. Van Rooij argues that resources can be scarce in different countries and universal efforts to gain agreement about the norms can detract from the need for local action. In the end, van Rooij argues that the rule of law and human rights ought to be considered together. This is because legal empowerment through bottom-up approaches, although important, is not an answer on its own.xxx Decision-makers hold the power to make the necessary changes.
Legal empowerment models
The capability and development model
Senxxxi has a framework based on his ‘capability approach’ which requires, as a starting point, that capabilities should be equally guaranteed for all. Although an economist, Sen has argued for more than just the economic perspective and shifted the established paradigm of economics and law to look at the social and structural. His model looks at what people are able to be and do. Literacy, health, resources, shelter, money, employment, environment, well-being and political freedom depend on specific local requirements in order to be realised. This model can include personal factors including psychological, physiological as well as broader settings, such as political, economic, gender, class, ethnicity and cultural dimensions. In this way, it incorporates the social determinants of health (SDH) discussed in Chapter 3.
Sen’s theory looks at why there are capability failures and diagnoses their causes. If people are not experiencing a capability that has been collectively agreed to be a significant one, then justice would require addressing the shortfall.
Sen has critics who argue individuals should have a right to shape their own views of what is a good life, and that justice is about fairness and neutrality, rather than assessments of capability.xxxii They have stated Sen’s theory is obscure as to what objectives a just society should be seeking, who will pay and how capabilities should be prioritised, the neglect of social values,xxxiii and how rights are balanced.xxxiv They comment on the individualised nature of Sen’s approach.
Sen has nevertheless shaped much of the discourse around empowerment and defended his theory by arguing that individuals are not all equal and that there are variables in distribution and access to resources and justice. Fundamentally, he contends that although people should enjoy liberty to make choices, not everyone has the underpinning capability to be able to access such choice. He maintains that society needs to strive to resolve the unequal nature of peoples’ capabilities. Ignoring it, is not good for society. Sen places as central features of empowerment, the need to enable human potential to address inequalities and justice moving beyond whatinstitutions alone can achieve. Rather than identifying existing injustices alone, Sen believes addressing capability and freedom are critical, and in this way, his theory is an empowerment model.xxxv
Nussbaumxxxvi builds on Sen’s capability theory looking at how capabilities can be created. Improving people’s quality of life requires wise policy choices. Theories are a large part of the academic world, but she notes they can be helpful in influencing a debate, and some approaches over others may not actually be borne out by evidence or lived experience. She argues that an understanding of the ‘complication elements of human experience’xxxvii should be part of policy frameworks. She also suggests that the empowerment of citizens through democratic processes be a shared aim, noting that the notion of democracy can be vague about who gets to participate and who does not. Such empowerment, she argues, is integral to addressing problems.
Sen and Nussbaum recognise in their empowerment models the reality of power and powerlessness in society. It is all too often convenient for libertarians to state people have choices or that the law is neutral, when both claims are dubious.
Governance and accountability as a legal empowerment model
Sheldrickxxxviii suggests a model of legal empowerment that reduces law to principles of governance and political accountability. This is a radical and challenging notion that invites immediate scepticism. What is meant by a principle of governance and in what circumstances such a principle would trump the law needs more thinking. In my view, it is problematic, given the role of law in providing consistency and standards for conduct and remedies for incursions (even though they are hard for many to access). Nevertheless, this concern with governance and political accountability is increasingly relevant with the growing and current alienation of the public. Wood and Griffithxxxix also highlight the empirical basis that demonstrates the lack of trust in public institutions that are seen to favour powerful interests and lack accountability in Australia.
Sheldrick argues that the legal empowerment agenda offers a promising road forward if there is an openness to alternative conceptions of law, with the use of grassroots, bottom-up development strategies. These require empowering and enabling communities toward genuinely local, community-driven responses which, he argues, can be facilitated by more concrete and diverse practices, customary dispute resolution mechanisms and community-based/ local consultations, increasing the ‘collaboration’ between practitioners linking state, society and community within a development paradigm. This would link access, rights and capacity in a way that is richer than traditional rule of law approaches. He further argues it offers a conceptual framework that is also more inclusive of First Nations people with more genuine structures of autonomy.
What is required are alternative, bottom-up approaches to formulating laws facilitating community engagement and parallel avenues for resolving disputes and are not reliant on or subject to the law or supervision of the courts. These approaches will be discussed in Chapter 7.xl