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The Reasonable Person, the Pursuit of Justice, and Negligence Law Embedding ICT at sector level: the case of agriculture in Bolivia Missing the Politics By Mary Kaldor
hat is important about the proposed Global Action to Prevent War is the attempt to bring together anti-war groups and disarmament groups and to build a global coalition of grass roots activists. The threefold commitment-to strengthening the rule of law, enhancing inter-national institutions, and replacing national cap-abilities for unilateral military intervention with multilateral capabilities for peace enforcement-is also welcome. The program contains many valuable proposals: creating region-al readiness brigades, the implement-tation of the 1998 Treaty to establish an International Criminal Court, and the idea of standing contingents of civilian police, among others. But what I miss is politics. Why does this eminently rational program for the elimination of war seem, like so many disarmament and peace projects of the past, to be unrealistically utopian? Why, if indeed we face no "near-term risk of major war" is President Clinton asking for an additional $100 billion to augment his capacity for air strikes? If the world does possess, as the authors suggest, "new powerful tools to help prevent war," why were they not used to prevent the wars in Bosnia, Somalia, Congo, to name just a few? Was it ignorance, was it the absence of a well-worked out program such as is proposed, or was it politics? Perhaps the most telling passage is the author's admission that their program "does not address the needs and conflicts that may motivate organized violence. It uses the resources of the international community to prevent the violent expression of conflict-which obstructs efforts to get at the roots of conflict." In other words, there seems to be an underlying assumption that arms create violent conflict rather than the other way round, that through a series of technical solutions that aim to control military capabilities and to provide for the peaceful expression of conflicts, war can be prevented. This was the assumption behind many well-meaning disarmament and arms-control proposals during the Cold War period. In the end, it was the collapse of communism, not arms control, which led to the end of the Cold War. Of course, the technical arms control proposals were useful when the Cold War was ending but it was the changed political climate that was crucial. Most contemporary wars are about identity politics-that is to say, the exclusive claim to power on the basis of identity, be it ethnic, religious, or lingui-stic. This type of conflict cannot be channeled into peaceful directions. The goals of the conflict are to "sow fear and hatred," to eliminate physically opponents of a different identity. These goals can only be pursued through violence-genocide, ethnic cleansing, and so on. Moreover, since the parties to the conflict depend on outside support or on loot and pillage of civilians, there tend to be deeply entrenched political and economic interests in a continuation of violence. The most that can be achieved through nego-tiation is freezing of the conflict, and even that is possible only in certain circumstances-for exam-ple, military stalemate. It might also be possible to freeze conflicts through peace enforcement, espec-ially if criminal behavior is outlawed internationally. It is because the parties to the conflict can only achieve their goals through violence that conflicts of this type-Cyprus, Bosnia, Palestine, Ireland-last for such a long time. Only political change, the abandonment of identity politics, the construction of a democratic and inclusive political constituency-a long slow process that has to be undertaken by civil society, interestingly not mentioned in the program-can actually prevent further outbreaks of violent conflict. No doubt, there are tools that fuel and exacerbate such conflicts-the elec-tronic media, for example, which oddly are also not mentioned, or surplus arms left over from the Cold War. However, attempts to control their supply do not prevent the conflict. The Hutu extremists used machetes to kill Tutsis. In other wars, all kinds of mechanisms exist-Diaspora networks, the black market, surplus stockpiles-which are very difficult to control. The program emphasizes the importance of freezing or reducing military budgets and armaments. Yet it is precisely those regions where the post Cold War cuts were greatest and where international institutions did, indeed, link loans to cuts in military budgets (as commended by the authors) that violence has been greatest-namely Africa and Eastern Europe. The effect of dramatic cuts in budgets, military production and arms trade was the privatization of military capabilities. Red-undant soldiers found em-ployment in newly created paramilitary groups. Surplus arms were sold on the black market. Un-employed defense workers or scientists turned to criminal activities to make a living. Governments hired private security companies like Executive Outcomes to maintain order. Of course, things would have been better if cuts in military budgets and arms trade had been accom-panied by destruction of stockpiles, industrial conversion programs, and job creating schemes for demobilized soldiers, proposals that were totally at odds with the dominant neo-liberal approaches imposed on these regions. But as long as the causes of violence were not addressed, those red-undant military cap-abilities were bound to find their way into the hands of warring parties. What is needed, above all, is a political project based on inclusion, democracy, and the international rule of law. Such a project can supplant the exclusivist political thinking that leads to war; it does not offer technical solutions but changes the way people perceive the world. This is just as important in the societies that are considered peaceful, such as the United States or Europe, as in the regions currently engulfed by war. As long as air strikes are popular and divert attention from domestic problems, as long as American lives are valued more highly than Iraqi or Sudanese lives, there can never be a serious program to prevent war.
s long as people are prepared to die for an exclusive identity and not for humanity, wars will continue. This is not to say that proposals of the kind advanced by Forsberg, Dean, and Mendlovitz should not be put forward; on the contrary, taken individually, they can contribute to changing political approaches. However, the task of grassroots activists is not to educate (or miseducate) the public about technical approaches; the task is to change global conscious-ness, to arrive at the point optimistically announced by Immanuel Kant two hundred years ago: when "a right violated in one part of the world is felt everywhere." The Reasonable Person, the Pursuit of Justice, and Negligence Law By Richard Mullender
n common law jurisdictions, the reasonable person is a commonly encountered figure. The reasonable person and the associated idea of reasonableness feature in a number of fields, notably negligence law, criminal law, administrative law, and the law relating to sexual harassment in the workplace. In these areas of the law, judges invoke the reasonable person as a standard by reference to which they assess the conduct of defendants, claimants, and the decisions of public officials. But who is the reasonable person? In negligence law, judges and commentators have emphasized the reasonable person's ordinariness. Thus, they have spoken of the 'man' (or, nowadays, 'person') on the Clapham omnibus or the Bondi tram. This emphasis on ordinariness brings with it a concern with community standards as relevant to the question 'What is reasonable?' Hence, the reasonable person has been described as 'the ordinary citizen' who seeks to act on those considerations that regulate 'community behaviour'. Here, we are presented with a picture of an addressee of the law who is co-operative (perhaps even other-regarding) and, as such, ready to play his or her unremarkable, but practically useful, part in community life. Moreover, descriptions of this sort bespeak negligence law's commitment to justice. For to participate willingly in co-operative arrangements that serve others' interests is to act in accordance with a personal virtue of justice. To accept this view is to see the reasonable person as a reassuring figure. But some commentators are far from reassured. A. P. Herbert described 'the reasonable man' as 'stand[ing] like a monument in our Courts of Justice, vainly appealing to his fellow citizens to order their lives after his example'. On this view, 'the reasonable person' is the name not of a practically useful standard but of an ideal to which the law's addressees fail to conform. Moreover, this ideal is, on Herbert's account, deeply flawed. Writing in the 1930s, he could not find in the case law a single mention of the reasonable woman. In recent decades, feminist commentators have seized on this last criticism and used it to argue that the reasonable man or person standard privileges the interests of males. In Rethinking the Reasonable Person, Mayo Moran follows in the footsteps of these critical commentators. On her account, the reasonable person standard (hereinafter, the RPS) is an impediment to the pursuit of justice. Drawing on case law from a number of common law jurisdictions, Moran finds support for her claims in tort law, criminal law, and in administrative and anti-discrimination law. Scrutinizing Moran's claims in each of the areas of law she examines is beyond the scope of this review. Attention is focused on Moran's primary example, negligence law. Before subjecting Moran's arguments to critical examination, her analysis of the law and the reform agenda she proposes must be outlined. In negligence law, the breadth of the discretion conferred on judges by the reasonable person standard is a commonly encountered theme. Those who pursue this theme typically place emphasis on the properties of the language in which the law is framed. H. L. A. Hart, for example, identifies this language as exhibiting an 'open texture'. By this he means that judges are able to choose between 'open alternatives' when elaborating the law.
Commentators have
seized on this point to argue that the RPS gives judges opportunities to
express highly subjective views. Moran echoes this point (pp 16
Moreover, the
notions of the 'ordinary' and the 'normal' all too often afford ways of
underwriting morally unappealing views (p 256). Moran argues that this
becomes clear when we consider negligence law's 'dark side' (pp 136 Moran illustrates negligence law's response to the developmentally disabled by reference to Vaughan v Menlove. In Vaughan, the defendant's hayrick caught fire and destroyed the plaintiff's property. The defendant sought to avoid liability by arguing that he had acted to the best of his limited cognitive abilities (p 19 and p 234). However, Tindal CJ applied the test of whether the defendant had exhibited the degree of caution to be expected from a man of ordinary prudence, and concluded he had not. The RPS here made its entry into negligence law; as Moran notes, it soon assumed the status of a doctrinal and theoretical orthodoxy (ch 1). Commentators have accepted that the RPS serves the general interest in security. Even if the RPS does promote the general interest, it places on the developmentally disabled burdens that they are ill equipped to discharge. Drawing on the work of Tony Honoré, Moran argues that this is unjust. Honoré recognizes that the developmentally disabled lack the cognitive capacity to meet the RPS's requirements. Hence, they are not subject to a (less burdensome) fault-based standard of liability but, rather, to a (more burdensome) strict liability regime. Moran contrasts the courts' lack of generosity towards the developmentally disabled with their response to boys. She notes that judges typically apply the RPS indulgently to boys (particularly those at play) (ch 2). In McHale v Watson, the leading common law authority on the standard of care to be expected from children, the defendant (a twelve-year-old boy) effectively blinded a girl with a sharpened metal rod he had thrown in her direction. In the subsequent negligence action, the trial judge, Windeyer J, considered whether a boy of twelve could, on these facts, be said to have behaved unreasonably. Having thus calibrated the RPS (for age), he found for the defendant, concluding that the boy lacked the foresight and prudence necessary to support a finding of fault, a decision confirmed by the High Court. Under McHale, then, the RPS should be applied to boys in a way that is sensitive to their impulsiveness (p 62). Moran regards this as establishing that boys (particularly those at play) enjoy 'the liberty to ignore the interests of others' (p 81). It should be noted, however, that the case law is not as clear as it might seem: in Staley v Suffolk County Council, a boy of the same age as the defendant in McHale was held liable in negligence for injuries caused to a 'dinner lady' he struck with a tennis ball.
While Staley
suggests that Moran is wrong to read McHale as allowing boys to
ignore others' interests, she correctly identifies it as the source of two
imbalances in negligence law. First, boys, unlike the developmentally
disabled, are able to invoke the avoidability principle as a ground on
which to avoid the imposition of liability (pp 65 From the RPS to the Indifference Inquiry While arguing for the abandonment of the RPS, Moran urges judges to 'fortify the reason' within the existing objective standard of liability. By this she means that judges should focus their attention on the morally salient core of the present inquiry into reasonableness (p 260). According to Moran, this is the question whether the defendant's conduct betrays the 'normative shortcoming' of indifference to the interests of the person he or she has harmed (p 73). By concentrating on this question, judges should, other things being equal, be able to detect genuinely blameworthy failings. Moran finds support for this approach in the writings of H. L. A. Hart and Anthony Duff. Moran illustrates the impact her proposed approach would have by contrasting two cases that concern harm inflicted by cognitively impaired drivers. In Roberts’s v Ramsbottom, the defendant argued that he should not be held liable for the claimant's injuries since he had suffered a stroke shortly before the accident. Hence, he had, as Moran notes, 'an account of his risky driving that excluded indifference to others as a reason for his action' (p 264). Nonetheless, the trial judge held him liable under the RPS and stated that only a complete loss of consciousness would have relieved him of liability. Moran argues that judges should abandon this approach and follow the lead given by the English Court of Appeal in Mansfield v Weetabix Ltd. In Mansfield, the defendant inflicted harm while suffering from hypoglycemia (with the result that his brain was starved of oxygen and unable to function properly). The Court accepted that the defendant could not (because of his condition) be blamed for the claimant's losses. Here, the defendant's cognitive state is treated as a circumstance that yields a ground on which to answer in the negative the question 'Was D indifferent?' The view of unreasonableness-as-indifference put forward by Moran has a significant consequence. Reasonableness, on her account, consists in appropriate attentiveness to others' interests. This leads on to the question 'What is appropriate attentiveness?' Moran's second proposal is based on her answer to this question. Public Law Values Moran argues that judges should treat higher-order public law values as a source of guidance when determining whether a defendant's conduct was reasonable. Among these values are personal autonomy, respect for others, and a rejection of sexist and racist beliefs as reasons for action (p 284). Moreover, Moran identifies each of these grounds of action as affording means to 'shape and discipline' judicial discretion in ways that give effect to the principle that all persons have equal moral worth (p 284). She finds support for this appeal to public law values in the case law spawned by the Canadian Charter of Rights and Freedoms. For example, in RWDSU v Dolphin Delivery Ltd, McIntyre J stated that 'the judiciary ought to apply and develop principles of the common law in a manner consistent with the fundamental values enshrined in the constitution'. There are, of course, parallels here with debates in the United Kingdom about the horizontal effect of the Human Rights Act. Advocates of horizontal effect share with Moran the aim of establishing a more integrated relationship between private and public law. Moran's appeal to higher-order public law values is unsurprising. For municipal human rights instruments such as the HRA and the Canadian Charter are supposed to establish a constitutional structure that satisfies some fundamental requirements of distributive justice. This is because these instruments protect a range of 'social primary goods' (to use John Rawls's phrase). These are goods in which all persons have an interest since they are necessary to the pursuit of a freely chosen and rational plan of life. Obvious examples include freedom of expression, privacy, and freedom of association. Just as the HRA and other similar instruments protect social primary goods, so too does tort law. Prominent among these goods are security and freedom of action, as protected by negligence law. In light of these points, we are better able to grasp Moran's understanding of the relationship between human rights law and tort law. Judges are under an obligation to ensure that those social primary goods protected by tort are distributed in ways that advance the egalitarian agenda of higher-order human rights law. On this view tort is a means by which to pursue distributive justice. However, pursuit of this ideal presents difficulties to which Moran pays inadequate attention. While she recognizes that a 'constitutive tension' exists in negligence law between security and freedom of action, she does not probe this point (p 20). This is regrettable. For when we try to state precisely how much protection security and freedom of action should be given in institutions such as negligence law, we seem to be confronted by a range of plausible alternatives and not by a single right answer. The concept of incommensurability provides a basis on which to explain these difficulties. Incommensurability arises where two values (or goods or institutions) each have objective value but cannot be ranked on a common scale or (to put the same point another way) by reference to an overarching value. But to accept that the concept of incommensurability is relevant to the 'constitutive tension' described by Moran is to accept a large ontological claim: namely, that objective values exist. Because this is controversial, we might want to describe the difficulty with ranking we are contemplating more modestly. We might simply say that, in circumstances where, say, security and freedom of action each enjoy a significant measure of protection, difficulties with ranking arise. And these difficulties mean that choices between eligible institutional options will be under-determined. One way in which to respond to this problem would be to develop negligence doctrine in ways that give expression to attractive (because, inter alia, egalitarian) moral impulses in the communities where the law operates. This is a suggestion about which Moran could be expected to have misgivings. For, as we saw above, communities are for her sources of unappealing moral impulses. There are, however, reasons for thinking that Moran underestimates the degree of 'critical leverage' (to use her phrase) that the concept of reasonableness gives those who argue for the reconfiguration of the law (p 286). This point is pursued below and provides the first of three more general criticisms of Moran's argument. Negligence law (and the common law more generally) is open and reflexive. Negligence law's openness finds expression in judicial receptivity to criticism of existing doctrine, while its reflexivity becomes apparent when its informing ideals are mobilised to encourage, guide, and justify doctrinal reconfiguration. Of course, judges do not talk in terms of 'openness' and 'reflexivity'. Typically, they describe the law's operations more prosaically. For example, they commonly state that the question whether a defendant's conduct is reasonable should be addressed in the light of all relevant circumstances. Circumstance-sensitivity of this sort invites arguments in support of two broad types of doctrinal development. First, the extension of existing or the specification of new liability rules that speak to forms of wrongful harm-infliction not addressed in terms by existing doctrine. Secondly, the identification of circumstances that may justify a finding for the defendant and a limitation in the scope of liability. Doctrinal change of this sort occurs in two of the cases on which Moran focuses attention: Mansfield and Mullin. These cases illustrate the way in which negligence law's informing ideals influence doctrinal reconfiguration. It may not seem obvious, but both these decisions are informed by ideals of justice. In Mansfield, the imposition of liability would have been an affront to the ideal of corrective justice. For the defendant had not 'acted'. Hence, he could hardly be identified as a wrongdoer. Likewise, in Mullin to have rejected the defendant's arguments against the imposition of liability would have been to adopt a position at odds with negligence law's commitment to distributive justice. For the interests of young females would have been accommodated less favorably by the law than those of young males. These points provide a basis on which to challenge Moran's claim that judges typically endorse prevailing understandings of reasonableness. Certainly, judges have long sought to elaborate the common law in ways that reflect the practical life of the communities in which it operates. Thus, we find the judges and commentators who set out classical common law theory in the seventeenth and eighteenth centuries describing the common law as Lex Communis Angliae. In this respect, Moran is correct to say that judges draw on the community's ordinary moral reasoning. But the common law's receptivity to what might be termed empirical community tells only part of the story as to how judges specify norms. A more complete picture emerges when we scrutinise, for example, Lord Mustill's speech in McFarlane v Tayside Health Board. He states that negligence law should be developed by reference to 'ordinary notions of what is fit and proper'. While this accords with Moran, he goes on to add that judges should seek to develop a body of law that is 'fair and reasonable'. We might see this statement as bespeaking a commitment not to empirical community but, rather, to the ideal of ethical community. This ideal enjoins judges not merely to reflect the practical life of the law's addressees but, also, to seek to ensure that the interests of all are defensibly accommodated. Distributive justice, corrective justice and the avoidability principle are plainly relevant to this task. The critical potential of these and other relevant norms supports the conclusion that judicial elaboration of negligence law is (or, at least, should be) an intensely reflexive process, in the sense elaborated above. A more modest commitment to reflexivity is also apparent in the burdens negligence law places on its addressees. Hart makes this plain in his discussion of 'reasonableness'. He states that the term 'reasonable' 'leaves to individuals, subject to correction by a court, the task of weighing up and striking a balance between the social claims which arise in various unanticipatable forms'. Thus, he presents a picture of the law's addressees as being under an obligation to think through and act on the law's implications in circumstances that are not spoken to directly by existing doctrine. The interpretative task they are expected to undertake is not particularly onerous. They are only expected to act on those implications that would be apparent to a reasonable person. But, in acting in this way, they join judges in an interpretative community that has as its end the pursuit of justice rather than the uncritical acceptance of 'the way we do things around here'.
This defence of the common law gives expression to assumptions associated
with the idea of social or historical reason. The proponents of social or
historical reason argue that practically significant knowledge and
understanding is gained through experience. In the common law, this
involves judges in seeking to move towards more nuanced and rationally
defensible sets of practical arrangements as they respond to the problems
thrown up by legal disputes. Hart lends support to this view. He argues
that the requirements of reasonableness become apparent when 'put in
conjunction with Identification of a distributively just end-state that is superior to all alternatives is only possible where the relevant institutional options are amenable to ranking. But, in light of our earlier discussion of incommensurability, we have reasons for thinking that such ranking is a practical impossibility. Jospeh Raz lends support to this view in a discussion of the doctrine of duty of care in negligence law. Raz identifies security and freedom of action (as protected by duty of care doctrine) as objectively valuable goods. He also argues that these goods can be accommodated by the law in a range of ways that are defensible but not amenable to ranking. Moreover, even if we have misgivings about talk of incommensurability, we can, at least, concede that difficulties with ranking will arise in the circumstances Raz contemplates, and thus that choices between institutional options will be under-determined. This being so, movement towards a final and best end-state appears problematic. Movement towards such an end-state is also hard to reconcile with the pluralism of the common law. As noted earlier, judges and commentators have long emphasized that the common law should develop in ways that are attuned to the practical life of the communities in which it operates. In recent years, judges in Australia, Canada, and New Zealand and in the Privy Council have given this point an explicitly pluralist twist. They have emphasized that processes of development in different jurisdictions can quite properly diverge from one another.60 Moreover, we find the Privy Council stating that doctrinal divergence of this sort is not 'a weakness' but, rather, one of the common law's 'great strengths'. If the claims made earlier concerning difficulties with ranking are well founded, this does indeed seem to be the case for two reasons. First, the same end (a body of law that adequately accommodates the interests of all its addressees) may be pursued in a variety of ways. Secondly, the practical life of a particular community is relevant to the choice between incommensurable options. Berlin makes precisely this point. He argues that when faced with incommensurable options decision-makers may quite legitimately choose the one that least disturbs their 'general pattern of life'. The relevance of this point to negligence law is easily explained. A strong commitment to regard for others is a feature of, for example, Canadian practical life. We find it in section 27 of the Canadian Charter of Rights and Freedoms, which specifies that Canadians should seek to maintain and foster a multicultural social environment in which the worth of others is recognized and valued. This commitment provides a reason for placing emphasis on security-related interests where they come into conflict with freedom of action-related interests in negligence law. But, in some circumstances, controversy as to how negligence law should be configured is likely to be profound. Consider those with developmental disabilities not as severe as to make it impossible to grasp basic ideas (like cause and effect). If we implement Moran's reform agenda, then those in this group will be relieved of the burdens of negligence liability. And, since they are hard to classify as wrongdoers, the end of corrective justice will be served. But, here, freedom from liability will come at a high price. For the individuals in question will not (as in, say, Weetabix) make appeal to a discrete event in their lives as a reason for relieving them of liability. Rather, they will invoke their permanent condition. Thus, to act on Moran's reform agenda may be to allow those in this group to undercut their status as full and equal persons. Viewed from the standpoint of distributive justice this would be a troubling development. If we assume the soundness of this point, then we seem to have a telling objection to Moran's reform proposal. But we could hardly say that this objection constitutes a knock-down argument. It would be more accurate to say that the two approaches cannot be ranked. In such circumstances, we would find it hard to fasten on some feature of practical life that would lead us to conclude that either of the two positions is preferable. v To be continued in the next issue Embedding ICT in Development How can Information and Communication Technology (ICT) support development efforts? ICT cuts across sectors and affects all layers of society; both micro-projects and large institutions use it. And it runs through non-profit, private and government organizations, which in an ideal situation communicate through a set of commonly agreed principles, standards and procedures. A virtual mission impossible for low-capacity countries, one would think, looking at the breadth of issues and the number of actors involved Embedding ICT at sector level: the case of agriculture in Bolivia Why is an ICT strategy needed for the agricultural sector? As in many developing countries, the agricultural sector in Bolivia employs a large proportion of the active workforce (45%). Bolivia's Poverty Reduction Strategy Paper claims that poverty is due largely to low productivity and low prices. NGOs and producer organizations suggest that improvements in these areas are severely hampered by the inadequacy of the infrastructure, inefficient distribution methods and a lack of information. Although small farmers lack access to information, they are not isolated from markets and are highly vulnerable to fluctuations in prices and production volumes, as well as to diseases that affect production. Access to information on prices, market trends and production methods is essential for the survival of these groups. A number of organizations have therefore initiated programmes for improving access to information in rural areas with the aid of ICT. Such initiatives include the regional development foundations set up by the government and the TiCBolivia programme implemented by NGOs and grass-root organizations (www.ticbolivia.net) in collaboration with the IICD. The projects operate in different content areas and regions of Bolivia and provide small farmers with information on production and marketing. For their part, producers can reach out to potential buyers in local, national and international markets. The information reaches farmers in remote areas through a combination of rural radio, voice radio, satellite and land-line based Internet access. Despite the projects' relative success in supplying producers with information, the stakeholders nonetheless identified the following problem areas:
These problems complicate the exchange of information. For example, in most parts of Bolivia, producers and intermediaries use different units of measurement ('quintales', equivalent to about 100 product units and 'arroba’, for around 25 units).With prices quoted in kilos, these differences do not help farmers to calculate their best selling prices. This example explains why the Ministry of Agriculture was asked to coordinate the exchange of information in the sector. As a result, a clear effort was made to link up ICT projects undertaken by civil society and the private sector with sector-level government policies. What does the ICT strategy entail? The Ministry of Agriculture has developed an ICT strategy for the agricultural sector with the following objective: ‘To coordinate and promote the introduction, access, uses and application of ICT in order to improve rural development in a more sustainable and participative way, with particular attention to impoverished sectors'. The strategy consists of three components, the first of which is the development of an ICT policy. This was achieved in 2003 with the support of the IICD. The policy indicates how ICT can help the government achieve the objectives it has formulated both for the agricultural sector and for national policy, describes the key objectives and priority areas addressed by ICT,sets out the organizational structure and proposes a plan of action for the next five years. Secondly, the strategy involves an implementation programme (costing USD 100,000 and supported by the Department for International Development, UK) to enhance the Ministry's internal ICT capacity. The key elements of this component are creating awareness and training Ministry staff in information management and basic ICT, and enhancing the storage, analysis and coordination of information at the Ministry. ICT facilities are also to be strengthened, inter alia by setting up a computer network and providing Intranet and Internet access. Finally, an agriculture portal is to be launched. This will operate as an entry point to agricultural information from both the government and the private sector (www.agrobolivia.gov.bo). One of the important features of the portal is the overview it contains of assistance programmes run by the government and the private sector. Obvious though this may seem, for the first time policy-makers and producer organizations can now obtain information on all the various programmes offered in the sector. In the next stage, starting in 2005 with the support of the government of Bolivia and USAID (worth a total of USD 800,000), the Ministry will provide access to ICT and train the staff of the Ministry's regional branches. The branches will set up regional information networks, which will be responsible for awareness raising, coordination and the exchange of information among producer organizations, NGOs and the private sector at a regional level. A coordination committee on which all stakeholder groups will be represented will govern the networks. Lesson learned from the experiences in Bolivia Many relevant lessons - for both Bolivia and other countries - have been learned since the ICT strategy was launched in 2002. § Participation at sector level. The government does not operate in isolation. Particularly in agriculture, NGOs and grass roots organizations are highly active in supplying producers with information. A range of organizations helped to identify ICT problem areas and priorities, and participated in information exchange in the sector. To ensure that they played a focused and constructive role, a committee was set up to coordinate organizations with experience in ICT. These included partner organizations of the Tic Bolivia programme, other information programmes initiated by the government and the linked ministries of Economic Affairs and Communications. The committee developed a draft strategy paper, which was discussed at a series of validation workshops at national and regional levels. In this way, the Ministry increased ownership and support for the ICT strategy in the sector. § Ownership within the Ministry. The Ministry's awareness of and skills in information management ICT was very limited. To allow the Ministry to take on a coordinating role, an extensive capacity development programme was required, involving training of directors and information officers at the Ministry. This training programme centred on information analysis and management rather than on technical skills. Although this has taken time, two years later there is now both widespread interest in and a clear understanding of the role the Ministry is to play in relation to information and ICT in the agricultural sector. § External support. The strategy formulation and implementation process requires long-term support from advisors from outside the Ministry. To secure acceptance at the Ministry, it has been important to work with local Bolivian consultants who possess knowledge of the sector and an extensive network of contacts at the Ministry. These advisors have played a vital role in continuously guiding the policy process and raising awareness among decision-makers and technical staff at the Ministry. To create ownership at the Ministry, the advisors are to be based permanently at the Ministry for a period of at least 9-12 months. A foreign organization such as IICD also has a key role to play, in terms of strategic advice on both process (i.e. facilitation) and content (i.e. technical advice). To ensure that the Ministry takes the foreign organization on board as a strategic partner, it is essential that it possesses expertise in both processes and content and is clearly aware of the priorities set by both the Ministry and the sector. § A development-oriented ICT strategy. ICT strategies often have a built-in lean towards relatively complex information that is particularly relevant to big business. The direct link made with overall sector policy and the participation of organizations working directly with small farmers has enabled the Ministry to pursue a strategy that identifies small farmers as the key target group. This group has a clear need for basic agricultural information, including information on markets and production. § Coordination versus implementation. Governments generally aspire to centralize information using complex databases and information systems. As a result, the focus is often on the development of software and large-scale systems rather than on understanding information processes at the Ministry and in the sector as a whole. In many cases, basic ICT can be very effective, too. It has taken a long time to persuade Ministry staff to coordinate information that has already been collected, analyzed and disseminated by experienced government-related institutions, producer organizations and NGOs. § Sustainability. The focus on coordinating existing information sources and the exploitation of existing communication channels in the sector is conducive to the implementation of a viable and cost-effective ICT strategy at sector level. Collaboration with civil society and the private sector ensures that the government will reach producers effectively, as all parties have a direct interest in maintaining information flows. Collaboration also allows for the costs of ICT to be shared among the various stakeholders in the sector. § Example for other sectors. The successful strategy for agriculture serves as an example for other sectors such as education, for which a similar process was launched in 2004. It also provides important input for a national ICT for development strategy, also launched this year. Yet, although the case of the agricultural sector has inspired policy-makers in other sectors, the experience in education suggests that each sector requires its own, tailor-made processes and approaches to ICT policy development. By: Ms Sandra Marca, Consultant Mr. Javier Choquevilca, Consultant Dr Stijn van der Krogt, Team Leader, The District Net Uganda Programme: a case for good governance and ICT After the 1980s, a large number of governments worldwide, including in Uganda, moved to decentralize policy-making and raise public participation in their quest for good governance. The District Net programme, started in February 2003, provides an example of how ICT can assist in the implementation of such processes. Emerging from the 'ICT for Rural Development' round-table conference held in 2001, the project identified the following challenges at district level:
Piloted in four districts, the programme is now being run independently by local District Administration offices with support from the Ministry of Local Governance. Over the past 18 months, equipment and infrastructure as well as a customised capacity development programme have been put in place to support the project. Having completed the initial pilot, efforts are now being concentrated on expanding to other districts and to embedding the programme in the Ministry's core activities. Lessons learned Following the installation of equipment and infrastructure, a capacity development programme was implemented. Staffs of all ranks were trained in basic ICT applications, project management, financial management and information management, while senior officials attended ICT awareness seminars. The following key lessons emerged from this process: Identify possible gains for public sector programmes As seen in the case of the District Net Uganda project, ICT can bring five benefits to the decentralization process. These are: (a) More cost-effective processes – producing the same at a lower cost. This has been seen especially in the improvements in collecting, storing and disseminating information, both in districts and between districts and headquarters. (b) Increased outputs - producing more at the same total cost. Automated systems have made it easier to make better use of collected and stored data to inform local and central government decision-making processes as well as the public in general. (c) Time-efficient processes and outputs - producing the same (or more) at the same total cost in less time. (d) Improved quality and standard of information services and products - producing the same at the same total cost in the same time, but to a higher quality standard. (e) Innovation - producing new outputs based on government requirements. The first four points may be seen as components of successful embedding in local government, as they increase both the effectiveness and the efficiency of the system. The fifth innovation creates opportunities to successfully embed at sector level, especially when programmes can be expanded to other local governments under the leadership of the ministry. Embedding also requires interventions at different levels to 'prove' value:
Human resource capacity is crucial to the process of embedding Good governance projects require capacities (i.e. skills and knowledge) to manage, guarantee and maintain the quality of data. Apart from basic ICT applications, programme staffs were also trained in project and financial management. Training staff to tackle more strategic issues, such as how to use data, and how to transform it into useful information and knowledge, was also crucial. A tool kit for information officers at higher local government levels was also developed. Users at district level were trained in using the services offered. Awareness-raising seminars and public launch events allowed users to voice their needs, to learn about available public services, and to pressure policy-makers into being responsive to their interests and demands. Organizational embedding requires sensitization interventions In many public-sector organizations, a major hindrance to reforms using ICT is a lack of awareness and skills on the part of senior officials. This makes them reluctant to support, or even to discuss, reforms that involve information technology. To combat this, public-sector programmes that are designed with organizational embedding in mind should incorporate training and awareness programmes for senior officials. The District Net Uganda programme is just one example of an e-governance project proving that ICT can help a decentralization process. Not only can it improve information flows and communication services to enable government and organizations serve the poor in a more efficient, transparent and accountable way, it can also help to encourage users to learn more about public services and their rights. By: Mr Constantine Bitwayiki, Project Manager,Mr Arjan de Jager, Programme Manager, Further Reading: Policy and issue papers Integrating information and communication technologies in development programmes: Best practices in ICT for development programmes Short policy brief on best practices in ICT for development programmes. Focuses on the role played by ICT in combating poverty and promoting development. Information technologies and education for the poor in Africa (ITEPA): recommendations for a pro-poor ICT4D* non-formal education policy. Examines the ways in which ICT can improve the skills of Africa's young people and adults who do not have basic literacy skills and/or have not completed primary or secondary school. More can be found at www. capacity.org/ict The European Centre for Development Policy Management (ECDPM) launched Capacity.org as a tool for development researchers, practitioners and decision-makers. As a website and a newsletter, Capacity.org combines information on capacity development policy and practice within international development cooperation with debate on policy issues and practical experiences. It acts as a platform for dialogue by providing a channel for informed review and synthesis of the complex issues faced by development practitioners and policy-makers. Focusing on both the 'why' and the 'how' of capacity development, Capacity.org seeks to unravel the complexity of ideas and practices underpinning the term 'capacity development'. To achieve this, the editors particularly encourage the exchange of perspectives and experiences from the South, to ensure that discussions are rooted in reality. Our aim is to make Capacity.org a joint effort, mobilizing and sharing a range of capacities and expertise. Interested individuals and organizations can help make Capacity.org an effective communication tool for people seeking to alleviate poverty through capacity development by contributing information, lessons, ideas, opinions and feedback. Any offers of co-finance or for linking up with related initiatives are very welcome |
17).
But it is not her central concern. Her main criticism begins with the
observation that judges typically seek to give expression to 'ordinary' or
'normal' views when applying the RPS (ch 4). Moran finds support for this
view in Hart who argued that 'reasonableness' creates a 'space' for judges
to give authoritative expression to their understanding of 'ordinary moral
reasoning'. This troubles Moran since ordinary moral reasoning can, and
does, go 'badly awry' (p 282). For judicial attempts to describe moral
impulses in the communities where negligence law operates are typically
impressionistic. Thus, even as judges seek to tether the exercise of
discretion to an inter-subjective criterion (community sentiment), they
give expression to views that are informed by their own understanding of
practical life. 
possibilities
which only experience
