Legal empowerment for local resource control

First, the legal tool seeks to trigger change in the behaviour of state and
non-state actors (e.g. requiring government officials to disclose
information to citizens demanding it; or inducing negotiation between
foreign investors and local resource users);
Secondly, this change in social behaviour is expected to result in the
desired outcomes (e.g. greater citizen access to public decision-making
and increased participation in the benefits of foreign investment for local
resource users, both of which may affect the balance of power among
actors involved in the investment project). 42
In practice, both steps are riddled with difficulties. While legal tools are
shaped by the law, context (social, economic, cultural, political) crucially
affects their practical operation and social outcomes. Whether a legal tool
results in behavioural change depends not only on the design of the tool
itself, but also on a host of (mainly extra-legal) factors, such as the extent to
which the legal tool is known and “appropriated” by those who are to apply
it or who stand to benefit from it; the economic incentives (both positive
and negative) linked to compliance and non-compliance; the extent to
which the newly introduced tool builds on local practice, and the
behavioural change sought is culturally and socially acceptable; the
interplay of vested interests and power relations, including between those
who stand to benefit from implementation and those who stand to lose;
and other factors.
As a result of these factors, legal tools may not trigger the desired
behavioural change; or, more commonly, they may trigger changes in
behaviour that are only partly consistent with the changes that were
originally hoped for by law-makers. Even when behavioural change does
materialise, the extent to which this results in the expected outcomes also
depends on social, political and economic factors – many of which are
outside the control of lawmakers. Because of this, legislative interventions
may produce “unintended consequences” that differ from those originally
sought by lawmakers (as documented e.g. by Lund, 1998, in Niger; and by
Hunt, 2004, in Uganda). And, the same legal tool would operate differently
and yield different outcomes in different social contexts – which entails a
need for caution with “legal transplants”.
42. These two steps are inspired by the “legislative theory” developed by Seidman and Seidman (2005).
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