Transitional Justice and
The Role of Legitimacy in
Informal Institutional Change
Aaron Alfredo Acosta & Nelson Camilo Sánchez
Transitional Justice in Colombia
In the past ten years, under the flag of transitional justice, Colombia has sought to implement a series of measures to confront the legacy of the conflict regarding property and land tenancy. In 2011, the government enacted Law 1448 (The Victims and Land Restitution Law or “the Law”) to face these historic injustices and human rights abuses and to lay the groundwork for a possible peace agreement (which was reached between Colombia and the FARC in 2016). Regarding land issues, the Law promises restitution for dispossessed and abandoned lands that have resulted from the forced displacement of more than fifteen percent of the country’s population during the armed conflict. The land restitution policy was promoted not only as the formula to revert dispossession, but also as a measure to confront chronic weakness of official institutions in rural areas. Indeed, this transitional justice process made two grand promises to the Colombian victims of the armed conflict: 1) that the new institutions created by the Law would be distinct from former State institutions, thereby guaranteeing more justice and legitimacy and 2) that, as a result of this newfound legitimacy, victims would have more incentives to access this transitional justice system than other informal institutions.
Despite these grand promises, the Land Restitution Unit (“URT”) has been facing a legitimacy crisis. Since the land restitution process began in 2011, the URT has received 125,500 applications. Out of the total number of applications received by the URT in the past nine years, 81,802 of the applications have a final decision regarding whether to include the property in the land registry – a necessary prerequisite for land restitution. With regard to the URT’s final decisions, 53,180 of the applications were denied inclusion in the land registry, while only 28,622 were included in the registry. In other words, the URT has denied 65% of the applications that have a final decision.
Far from fulfilling its promises of being distinct and offering greater access to justice for victims, the land restitution process has rejected the majority of applications at the initial step of the process. To date, the phenomenon of the high rate of denials eludes both experts and academics alike, with no publicly available information explaining why so many applications have been denied. Civil society organizations have expressed alarm at the high rate of denials and the lack of information regarding the reasons. The lack of transparency regarding the decision-making process and the dismal results related to applications that pass the first obstacle in the land restitution process (only 35%) have damaged the legitimacy of the URT, and as a result, have opened the door for a reversion to prior practices and institutions.
Unfortunately, this “implementation gap” between well-intentioned reforms and their expected outcomes is not something new in the field of transitional justice. Despite the positive effects of land reform and restitution through transitional justice processes, experience shows the difficulties and failures of land restitution programs in other societies, caused by the failure to take into account a variety of important contextual factors. As a result of this implementation gap, victims often lose trust in such measures and revert to former ways of addressing their problems through informal channels. This gap between promise and reality can be explained in large part by the fact that transitional justice measures are not implemented in an institutional vacuum, but instead are usually “nested” in existing institutional environments. Especially in societies in which state presence has been historically weak in conflict-affected regions, a wide variety of informal institutions are likely to have emerged as a result of this formal institutional deficit.
Therefore, we assert that the success of formal land governance measures implemented in transitional justice settings, such as land restitution programs, depends, in large part, on the ability of the newly-created or modified formal institutions to maneuver through the complex web of informal institutional terrain. Since institutional changes in post-conflict states, rather than being simply technical, are “deep societal changes,” such measures can only be effective if large segments of the population understand, accept, and use them. Specifically, in the design and implementation of land restitution processes, understanding the opportunities, interactions, and challenges brought by informal institutions is necessary to foment legitimacy in such formal land restitution processes, thereby promoting lasting and sustainable institutional change.
Formal and Informal Institutions and the Role of Legitimacy
According to North’s widely-accepted neo-institutionalist definition, institutions are “the rules of the game in a society or, more formally, are the humanly devised constraints that shape human interaction.” Institutions can be either formal or informal. While formal institutions are “rules and procedures that are created, communicated, and enforced through channels widely accepted as official,” informal institutions can be defined as “socially shared rules, usually unwritten, that are created, communicated, and enforced outside of officially sanctioned channels.” Moreover, understanding the relationship between formal and informal institutions is crucial to any transitional justice process because their interactions often shape policy decisions and the implementation of such policies.
The specialized literature on informal institutional change repeatedly highlights the ironclad resistance to change exhibited by informal institutions. Drawing on the peacebuilding literature, Mohamed Sesay explains that this “robust resistance” from informal institutions remains one of the great challenges to peacebuilding in post-conflict settings. Moreover, when informal institutions change, unlike changes in formal institutions, which can take place overnight with the enactment of a new law or judicial decision, informal institutional change can take a long time and is usually incremental as opposed to discontinuous. Given informal institutions’ extreme resistance to change, the new institutional framework that is introduced must be perceived by the stakeholders as legitimate. Without this legitimacy, lasting institutional change cannot take place.
While there is no exact definition of legitimacy, there is general consensus that legitimacy is “a psychological property of an authority, institution, or social arrangement that leads those connected to it to believe that it is appropriate, proper, and just.” Accordingly, institutional legitimacy makes people “feel that they ought to defer to decisions and rules, following them voluntarily out of obligation rather than out of fear of punishment or anticipation of reward.”
Therefore, legitimacy is primarily concerned with the belief that institutions conform to one’s moral principles or sense of what is right. Generally, institutional legitimacy falls into two distinct categories: performance legitimacy and procedural legitimacy. While performance legitimacy is concerned with instrumental outcomes, procedural legitimacy is related to “the fairness of procedural mechanisms.” As such, institutional efficacy is a component of performance legitimacy.
It is also necessary to clear up some confusion regarding the concept of trust, as trust and legitimacy have often been (incorrectly) used interchangeably. Institutional trust can be defined as “perceiving [an institution] to be legitimate and having shared expectations that its rules and norms are both stable and enforced.” In other words, trust, while remaining a “fuzzy” concept, is focused on the expectations of the person affected by the institution. Thus, trust will be gained or lost depending on “whether or not political authorities and institutions are performing in accordance with normative expectations held by the public.” With regard to the relationship between legitimacy and trust, it is widely agreed upon that the former is a precondition for the latter. This is true because beliefs about the legitimacy of an institution will define the respective expectations regarding how the institution should act.
Although there has been little research on the role of legitimacy in institutional change, we argue that it is nonetheless essential for institutional change to occur; as a result, when an institution loses legitimacy, the affected population will usually revert to previous approaches. In the peacebuilding literature, Fisk emphasizes that institutional legitimacy is “essential to the functioning and stability of institutional authorities.” Similarly, Zelditch remarks that the consequence of legitimacy is always “the stability of whatever structure emerges from the process.” Especially in transitional justice settings, one of the primary predictors for successful reconstruction attempts is the creation of “local legitimacy” in the eyes of local individuals and groups who stand to be affected by such institutional change.
While the outcomes of an institution’s decisions are important for the institution’s legitimacy, recent studies have shown that procedural legitimacy may play a greater role in overall institutional legitimacy. In a comprehensive and nation-wide study in Nepal, Fisk and Cherney conclude that people evaluate institutional legitimacy primarily based on the fairness of decision making and whether they were treated with dignity and respect.
Finally, institutional legitimacy may also be derived through social influence, although this topic of study remains largely underdeveloped. In this regard, institutional legitimacy is not directly based on outcomes or processes, but instead, is derived from and affected by growing community consensus about an institution’s legitimacy. In the end, regardless of the source of an institution’s legitimacy, it is important to note that “legitimacy is an inherently dynamic, relational concept that is sensitive to existing social and material conditions, which are constantly evolving.” As a result, when a new institution in a post-conflict setting loses legitimacy, the society may revert back to informal institutions.
Last December, Colombia’s Constitutional Court extended the Law’s mandate for another 10 years and gave the Congress a chance to modify the Law. Therefore, with regard to the Law’s land restitution component, it will be crucial for the Congress to make changes that will serve to bolster the legitimacy of the URT. Such modifications can include things like: 1) including a focus on the role of informal institutions and accordingly, restructuring incentives; 2) increasing the transparency of decision making by the URT; and 3) permitting land restitution judges to review rejected applications. Although these are just a few examples of the types of changes the Congress can implement, it is crucial that action is taken swiftly and not simply given reduced priority during the COVID-19 pandemic. Without such legitimacy-enhancing modifications, Colombia’s land restitution process may end up on the long list of other failed land restitution programs. ♦
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Aaron Alfredo Acosta is a California attorney who specializes in international human rights and IHL. He currently works as a research assistant for Nelson Camilo Sánchez in the UKRI GCRF Gender, Justice and Security Hub and is employed as a transitional justice researcher at Dejusticia.
Nelson Camilo Sánchez is an assistant professor of law at the University of Virginia School of Law, where he also serves as the Director of the International Human Rights Law Clinic and as the Co-Director of the UVA Center for International & Comparative Law. He is also a senior researcher at the Center for the Study of Law, Justice and Society – Dejusticia, in Colombia, and a Co-Director of the UKRI GCRF Gender, Justice and Security Hub.