Legal empowerment for local resource control

Even where “progressive” legislation that seeks to addess power asymmetries
is adopted, inequalities in the distribution of resources, knowledge and
influence affect its implementation and may frustrate its ability to pursue its
stated objectives. For instance, building on fieldwork in Niger, Lund (1998)
shows how powerful actors anticipate and manipulate implementation of
land tenure reform, and how litigants compete to mobilise “powerful
institutions” (from customary chiefs to government administration to religious
authorities to political parties) in order to influence the outcome of reformrelated
dispute settlement. And, some argue that much progressive legislation
serves to appease political pressures and channel dissent without
fundamentally altering power structures.
On the other hand, where appropriate conditions are in place, “law offers
opportunities for breaking the vicious circle which links poverty with
powerlessness” (Kjonstad and Veit Wilson, 1997: iii-vii). This is because legal
entitlements contribute to define influence in decision-making and access to
valuable assets and economic opportunities. This is the essence of legal
empowerment – a concept first developed by the work of Stephen Golub (in
ADB, 2001, and Golub, 2005). Building on Golub (2005), legal empowerment
is defined here as the use of legal entitlements and processes to tackle power
asymmetries and help marginalised groups have greater control over the
natural resources on which they depend. Thus defined, legal empowerment
requires both appropriate legal arrangements and adequate capacity to use
them. Its promotion may entail:
legislative interventions that shape the nature and content of legal
entitlements (who has what right over what and towards whom) in a way
that favours marginalised groups; and
efforts to provide the legal services that are necessary for marginalised
groups to make effective use of those entitlements.
As for the former, history provides many examples of legislative interventions
aimed to accompany shifts in power relations – from the publication of the
laws of the Twelve Tables in ancient Rome 5 to race-related “affirmative action”
legislation in the US and more recently in South Africa, to gender equality
5. This was the outcome of decades of social struggle between patricians and plebeians, and in turn altered the
balance of power between these two groups by making the law accessible to plebeians for the first time.
Therefore, more than in their content, the “empowering” element of the Twelve Tables was in their publication.
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