Activating the Five Powers of Law

15th February 2019

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Miranda Forsyth is an Associate Professor at RegNet and also a Fellow at the Department of Pacific Affairs in the College of Asia and Pacific at ANU. The broad focus of Miranda’s research is investigating the possibilities and challenges of the inter-operation of state and non-state justice and regulatory systems.

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Some methods of rule of law promotion, such as support for the development of new legislation, frequently lead to disappointing results. The reason for this is that partner states such as Germany only focus on one of the many different powers of the law and do not pay attention to activating the full range of its powers. German ministries should take a careful look at the methodologies of their implementing agencies and “activate” all the powers of the law.

Many rule of law assistance programs have a heavy emphasis on supporting the development of legislation. Laws are frequently viewed as a magical tool capable of wondrous development outcomes – ending gender-based violence, preventing land grabs, empowering the poor. Legal anthropologists and development scholars have spent decades rightly critiquing such mythologization and the problematic emphasis on legislative drafting which so often fails to result in meaningful changes to socio-legal realities. 

Yet, the role of the state and state law in much of the world is increasing, including in places where the German government’s new strategy for the rule of law assistance is applicable. It is worthwhile, then, probing deeper into what legislation actually “is” in particular contexts, in order to identify its many and varied possibilities. To do so, we need a conceptual framework that can disambiguate the different powers of legislation, and explain how they are brought to life within their targeted communities. 

Such a framework should stress the importance of going beyond the “draft, gazette, implement”-concept of a legislative journey and contend that legislation possesses many different potential powers. Those that are sought to be used in a given context need to be identified, together with the precise mechanisms necessary to activate them and increase their impact.

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Tags: Regulation

Updated:  10 August 2017/Responsible Officer:  Director, RegNet/Page Contact:  Director, RegNet