The World Bank is a major international institution. It believes in promoting access to justice as integral to commercial success. The Bank proclaims the ‘critical role of justice for fostering a healthy business environment, enhancing growth, improving access to public services (particularly for the poor), curbing corruption and restraining the abuse of power.’ It has recently commissioned Jason Tashea, a high profile US expert, to survey access to justice tech around the world. He has just published a consultative draft of his report. He tweets that he is ‘curious to people’s thoughts and feedback’.
This is Mr Tashea’s summary of his own argument – as given in a series of tweets a week or so ago. ‘I used the digital platform as my organising metaphor. Doing so:
- Creates an all inclusive framework for any justice tech projects.
- Shows inter-dependencies across projects.
- Gives an end-to-end view, from data to user, of justice tech.
Mr Tashea has developed a commendably comprehensive approach. He is after a theory of everything and there are enormous advantages to that: ‘projects may seem discrete or independent, they are in fact a part of a larger ecosystem of technology, data, and policy’. His approach should be particularly helpful to a funder like the World Bank because it allows elements of provision to be put into an overall context and, thereby, weighed in the balance.
And, indeed, to be truly comprehensive, a conceptual structure for access to justice should be wide enough to include:
- the basic building blocks of the law -statutes, the cases and the codes (particularly relevant in civil law countries);
- data on the practical implementation of law – who is taking up cases and issues, how they are being progressed, what are the outcomes; and
- available assistance – the websites, the self-help provision, the advice, the legal aid etc.
Very practically, the World Bank should be able to look, for example, at Mauritius (to take a completely random example) and analyse the country’s whole digital offering in the justice field, looking for gaps which it might help to fill. This is the original and most useful point of deploying the notion of justice as a comprehensive digital platform.
I consequently buy Mr Tashea’s offered definition of justice technology as ‘a technology or data project that is used in the administration of a justice system or service, creates access to that system or service, or increases the agency of justice system-involved people through support, like information or assistance’ provided that the raw data of the legal system (the statutes etc) are included within the definition of data.
Mr Tashea ventures into the murky swamp of defining access to justice as well as justice technology. Here I have a problem. He doesn’t really give a definition. He gives only illustrations and examples: ‘Access to justice should be understood broadly. To foster access to justice means building connections to the justice system’s physical infrastructure, like courts and prisons; its services, like legal aid or social benefits; or a remedy, including formal and informal resolution, like mediation. This broad definition is necessary, because the size of the problem is monumental.’
Access to justice is surely much more that building connections between disparate approaches – though this was an integral purpose in its initial formulation. If it means anything valuable (and you can respectably argue that it does not) then it must surely be defined as requiring that everyone in any society is able to attain a just outcome to a legal issue that they encounter. I don’t see any harm in saying exactly that.
A more fundamental issue is the extent to which Mr Tashea is really developing, as he claims, a ‘novel conceptual framework and organizing metaphor: the digital platform.’ Is not what he is really doing – and with considerable insight – better described as considering how law is developing as a digital platform (while its essence lies still in the real world of politics, practice and provision)? Digital as a platform is not, on this argument, a metaphor for the whole system: it is a way of seeing a part – and an increasingly important part – of a whole justice system, significant parts of which are not digital.
You can, however, put these issues aside to concentrate on the four “layers’ that Mr Tashea sees as the ‘inner workings’ of a digital platform which we can all accept exists in some shape or form:
- ‘The information layer encompasses all of a platform’s structured and unstructured data, including standardization and collection processes.
- The trust and consent layer is the internal and external oversight mechanisms that secure data, promote privacy, and ultimately create trust between the platform and the user.
- The common technology layer is the digital infrastructure and processes that allow data in the first layer to be managed and manipulated. This layer includes data management processes and software, login and identification systems, payment platforms, and application programming interfaces (APIs), which allow software to interact with other software.
- The services layer is made up of the tools and applications that allow users and employees of the platform to interact with the services and information the platform provides.’
I buy this with the following provisos.
The information layer – as argued above and, as I think Mr Tashea proposes – should contain not only ‘data from courts, law enforcement, legal aid organizations, corrections, probation and parole, NGOs providing support to people dealing with a legal problem, and users of the system itself.’ It also covers, as Mr Tashea explicitly acknowledges, the digitalisation of court and other legal records. So, it is both the digitalised raw material of the law and the use made of it.
The trust and consent layer covers issues of privacy, access and security. I would not have thought of separating this out but it is valuable to do so because these are important issues. ‘Competently managing privacy, access, and cybersecurity is critical for the success and legitimacy of access to justice technology projects.’
The common technologies layer is defined as ‘the bridge between the government, its data, and services provided. This includes technologies that don’t receive a lot of attention or fanfare, like sign-in and validation systems, payments processing, and document sharing. These tools are reusable across a platform, agency, or government, such as a national digital identity.’ I don’t see why this should not be defined somewhat more broadly to cover technologies which have been developed for general or other specific purposes which are being used in the justice sphere. So, I would explicitly include office and case management systems within this definition.
And, finally, we have the specific services layer – the ‘apps, data portals an websites’. This is where legal service providers will be most interested and covers most of the innovative projects previously covered here that are specific to access to justice providers.
So, Mr Tashea has done the World Bank a big favour. And his success is wider than that. He has provided us all with a structure into which very diverse elements can be fitted. You – or he – might or might not agree with the detail of some of the analysis above. But if the World Bank takes up his conceptual framework it will be important for many of us around the world. So, follow the link. Mr Tashea invites response. Give it to him.