Legal empowerment for local resource control

20
where short timeframes would prevent action to build the capacity of less
powerful actors to participate in the negotiation on a more equitable basis.
The power to decide on the terms and conditions of the negotiation process
is itself a source of negotiating power if it is vested with one of the parties
to the negotiation process (e.g. the host state).
Finally, negotiating power is not a zero-sum game. Strengthening the
negotiating power of one stakeholder may entail redistributing power
among negotiating parties, and/or strengthening the power base of that
stakeholder through new opportunities for greater voice that do not
necessarily detract power from the other negotiating parties.
2.1.2. Rule of power or power of rules? 3
The relationship between law, power and social change has been at the
centre of thinking and doing for centuries. On the one hand, law is shaped
by power relations – including socio-economic and political power as well
as more subtle forms of power manifested through the internalisation of
knowledge and values by members of society. On the other, throughout
history activists, politicians and lawyers have tried to use the law as a tool to
address power asymmetries.
Law-making is an inherently political process: laws are the outcome of
negotiations between competing interests in society, and reflect power
asymmetries between those interests. In Plato’s Republic, Thrasymachus
famously stated that “justice is nothing but the interest of the stronger”, as
the law reflects the interests of more powerful groups. 4 What is “legal” and
what is “illegal”, which entitlements are legally protected and which ones
are not, which protected entitlements entail access to effective redress
mechanisms and which ones do not – these are all decisions of legal policy
that are shaped by power relations. From the spoliation of land rights
brought about by the imposition of colonial law in Africa, to the patriarchal
family law norms until recently or still in force in many countries, there are
many examples of how the law has served the more powerful to the
detriment of the weaker.
3. This heading paraphrases expressions used by Byers (1995-1996) and Simpson (2000).
4. Republic, at I.338d-e. Thrasymachus’ argument implies that justice equals to obeying the law. In Plato’s
dialogue, Thrasymachus’ statement is subsequently challenged by Socrates.