Law Reform

Law reform is often conducted in the aftermath of conflict to address deficiencies in the existing legal framework. As the UN secretary-general’s Report on Rule of Law and Transitional Justice in Conflict and Postconflict Societies states: “legislative frameworks often show the accumulated signs of neglect and political distortion, contain discriminatory elements and rarely reflect the requirements of international human rights and criminal law standards” (paragraph 27) Existing laws may also be politically objectionable to the local population, particularly where those laws have been introduced by a foreign or dictatorial power. Law reform is often also a high priority for developing countries.

Law reform may be conducted by a working group, a law reform commission (and often law reform efforts begin with the establishment of a commission), or a line ministry. The international community generally provides assistance in this process. This assistance may be, among other things: (1) political and strategic (e.g., supporting negotiations, political facilitation, advocating for reforms, or establishing the body responsible for drafting new laws); (2) in the legal and human rights realm, through providing technical assistance on key substantive issues (see Technical Assistance), including human rights; (3) focused on capacity building and institutional development (e.g., establishing a secretariat to support the reform process, providing drafting and negotiation skills to drafters, assisting in civic education and public consultation campaigns, or developing implementation strategies); (4) related to the development of budgets and provision of logistical and administrative support; or (5) designed to improve coordination (see Coordination).

The international community has, however, fared poorly in providing law reform assistance in developing and postconflict states. Key failures have been the failure to recognize the importance of the law reform process versus the final outcome (i.e., a new law) and the lack of transparency and participation in the process; the overuse of foreign experts in the law reform process; the lack of a coherent law reform strategy; lack of coordination in legal reform in different legal spheres; reliance on “legal transplantation” (the wholesale importation of foreign laws); the failure to adequately implement new laws; and ignorance of the political dimensions of law reform (see also Political Will).

Below are links to articles, tools, reports, and other resources that point to best practices and practical tools on how to successfully conduct, or assist in conducting, a law reform process.

This section is further divided into five entries on key elements of law reform: