Supporting the state: institution building

Otto considers real legal certainty as a legal system’s internal, developmental objective. Building especially on the work of Milton Esman, Otto constructed a modest theory of development that allowed him to work with this notion without becoming embroiled in the deep controversies that characterise the debate about this concept (Otto 2006).

Just as in his other theoretical-conceptual work—with perhaps the exception of his access to justice definition—Otto at least implicitly takes the state as his point of departure. It is the state that should issue clear rules or at least acknowledge them, and apply them consistently. Much of the effort in real legal certainty thus consists of attention on institution­building within varying cultural contexts.

However, before we turn to institution-building, we must first briefly consider the idea oflaw as the key system ofstate government in achieving developmental goals. Presently, it seems that this notion still stands. But just as ‘illiberal democracies' are defying the idea of modernisation theory that liberal democracies are an inevitable outcome of political change, so have developmental states long challenged the idea that real legal certainty is required for development—economic development in particular (Williams 2014).

In most cases, the prospects are not as bleak as they presently are in China. Yet serious difficulties are involved in building the institutions needed for effective administration of law. In her chapter, Keebet von Benda-Beckmann points at the devastating effects of corruption on certainty, an issue Otto has been addressing in much of his work on good governance. True to his roots in development administration, Otto has sought inspiration from the ‘institution building' school of thought to promote well-functioning state agencies. Departing once again from Milton Esman's ideas, he developed the institutions-citizens model. It maps the different internal and external factors that influence the implementation of government laws, policies, and services. The model considers how these factors influence both the implementors (i.e., government institutions) and recipients (i.e., citizens) involved (Otto 1987; 1999). As discussed above, Otto specifically used this model as a lens to look at the local level of village institutions.

In his chapter, Rikardo Simarmata shows how difficult it is to build such institutions at the local level. He shows how decentralisation not only opens the way to more democracy (which Harding emphasised) but how it opens the way to self-interest influencing lawmaking.

In addition to all the ‘common’ problems involved in institution­building, a fundamental problem hinders it at the local level. It is the result of the tension between building a national state and allowing local differences. In their search for nation-building, modernisation (in whatever form), and economic development, national states wish (or need) to strike a balance between their own preference for a unified, certain legal system and local aspirations and realities. This is what Benjamin van Rooij calls the problem of ‘spatial legal failure.’ In his chapter, he argues that there is a ‘spatial contradiction’ between unified, modern state law and its institutions, and the ‘the variation of local norms and justice.’ This tension can never be fully resolved, only reduced by decentralisation, recognising customary law, etc.

Establishing special courts is a typical response to dealing with ‘spatial legal failure’ and promoting the legal unity that is part of real legal certainty. The theoretical advantages of such a strategy are obvious: the chances are higher of increased unity in legal decision-making, special court judges develop special expertise, and these judges also have an incentive for ‘judicial activism’ that stems from the risk of running out of business (Bedner 2015). It is this solution of a special court that Nick Huls invokes in his chapter on how to potentially address Rwandan genocide cases. According to Huls, the international standards for dealing with these cases have become so complex that they no longer can produce legal certainty. The Rwandan reality is too far removed from courts outside of Rwanda. Therefore, instead of dealing with these cases in a variety of courts across the globe, it would be better to make the Specialized Chamber for International Crimes of the High Court the appropriate legal arena for adjudicating Rwandan genocide cases. This approach may be preferential, despite producing ‘mundane’ institution­building problems, on which Otto has worked for so long.