Download the file - United Nations Rule of Law

Table 1 Mapping the dynamics of legal statusExternalThe public, social movementsLegal community of practiceJudicial Review, civil society and mediaExcluded/ineligible peopleInternalThe authorizing environment for rule-making (Parliament, Congress,Cabinet Board of Corporations)Composers/Drafters (Constitutions, primary, secondarylegislation, by-laws, manuals)Administrators/OrganisersUsers/citizensa particular legal status or set of rights, such asproperty rights, come to identify and endorse thesocial order so produced. External actors are positionedto push the frontiers of the existing socialorder by questioning the balance between solidarityand inequality. They catalyse changes to existingcitizenship arrangements, in questioning thefairness or effectiveness of an existing legal status,and in the creation of new legal status for specificgroups. The creation and expansion of citizenshiprights is a process of contestation that can lead tonew interpretations of old laws and the promulgationof new laws, or the creation of new mechanismsto deal with issues that do not fit into anexisting framework. Thus, groups that question thestatus quo can prove that the law is malleable, justas indigenous groups have fought for, and won,recognition of customary land rights in Australia orNew Zealand.However, the provision of property rights inlaw does not always guarantee equality inpractice. While states can attempt to balanceinequality and solidarity, discrimination and socialclassifications remain entrenched in manysocieties. Inequality can stem from deep-rootedcultural distinctions such as caste, gender andrace, and the challenge then is to create conditionsfor property rights not just at the legal level,but through mechanisms that can fundamentallychange mental models and social practices at alllevels of society. Even in the European Union,where equality of men and women is a fundamentalaxiom of policy, gender mainstreaming insocial policy still remains a significant challenge,according to a recent European Commission reporton social inclusion. 21The degree to which an order is open or closed, toextending legal status to new groups or to changingthe status of existing groups, is an importanttest of its capacity for coping with change. Evenwhen creation of status is open in theory, mechanismsare needed to create trust in the socialorder. If property rights are legally extended toa previously disenfranchised group, that groupmust believe that their property will not be seizedthrough misuse of eminent domain.Therefore, context-based legal reform is critical togovernance in developing countries. There can beno blanket approach: expansion of property rightsin a coherent manner requires understanding oftrends and a tailoring of provisions to context.There must be a degree of coherence to lawsbased on fundamental rules, or those laws willnot be respected. If de jure property rights do notcorrespond with de facto property practices andcustoms, the subsequent legal misalignment willundermine rather than strengthen the system.Disorder and dysfunction has its own stakeholders,and if resources are seen as zero-sum,change can be perceived as highly threatening byentrenched interests.69