e-book The Politics of the Common Law: Perspectives, Rights, Processes, Institutions

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This distinction is often characterized by resorting to the opposition between "thin" and "thick" conceptions of the rule of law. However, in general terms, a focus on "thin" definitions places emphasis on the procedures through which rules are formulated and applied, whereas "thick" definitions aim to protect rights and frame it within broader human development discourse.

A "thick" definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society. The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk.

It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful State actors. This "thick" definition of the rule of law differs from "thinner" definitions that place emphasis on the procedures through which rules are formulated and applied.

Examples of the tenets within a "thick" definition were provided by the then United Nations Secretary-General, Kofi Annan, in his reports on the rule of law.

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Annan stressed that, for the United Nations, the rule of law is:. It requires as well measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.

Referring to this definition in his Guidance Note on Democracy, Secretary-General Ban Ki-moon added that the United Nations provides expertise and support to "the development of legislation and the strengthening of, in particular, legislative, executive and judicial institutions under such principles to ensure that they have the capacity, resources and necessary independence to play their respective roles".

Over the years, the United Nations has fostered the rule of law at the international level through the consolidation and development of an international framework of norms and standards, the establishment of international and hybrid courts and tribunals and non-judicial mechanisms. It has refined its framework for engagement in the rule of law sector at the national level through the provision of assistance in constitution making; the national legal framework; institutions of justice, governance, security and human rights; transitional justice; and the strengthening of civil society.

Furthermore, his Guidance Note on United Nations Assistance to Constitution-making Processes outlined the components of constitution-making processes and recognized that such processes are a central aspect of democratic transitions. A practical example of the importance of the rule of law for democracy building is the fact that the rule of law is a fundamental principle embraced in most modern democracies. Constitutions contain the fundamental and, most often, supreme law of the State, and the rule of law dictates the enforcement of those principles above all other laws.

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Constitutions also preserve fundamental principles and values by making the process of amendment burdensome. Some constitutions ensure the permanence of certain principles and values by prohibiting amendments. The judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Thus, an independent and properly functioning judiciary is a prerequisite for the rule of law which requires a just legal system, the right to a fair hearing and access to justice. Constitutions do much more than establish a government and regulate its relationships with citizens.

In many countries, they have also become crisis management tools. The benefits of constitutions designed for conflict-affected and deeply divided States hinge on their ability to reconcile groups, to address intolerable grievances and to prevent further polarization and conflict deterioration. Also in this area, national ownership is of the utmost importance.

The choice of process should be left to national constitution builders who are able to prevail in the local context.

Visiting the Senegalese Legal System and Legal Research: A Human Rights Perspective - GlobaLex

With the exception of the close relatives of male politicians, women generally lack the political networks necessary for electoral success. When political parties are based more on prominent personalities associated with a faction in conflict than on issue-focused platforms and programmes, as is often the case in post-conflict countries, it is harder for women to emerge as political leaders.

United Nations and other international actors in post-conflict countries can make an important contribution to these efforts. Political parties.

Professor Gearey and Morrison discuss the book "Politics of the Common Law"

The most common route to elected office is through political parties. Most candidates depend on parties for their nomination, their base of electoral support, help during the election campaign, financial resources, and continued assistance after their election. While some candidates run for office independently of political parties, it is far more difficult to win election without the backing of a political organization, especially at the national level.

Political parties vary greatly in the extent to which they seek to promote women into leadership positions and to recruit women as party candidates, as well as in the extent to which they address political, economic and social issues of special concern to women. Since political parties often tend to be more open to nominating women as candidates for local elections, women may find it easier to start at this level and use it as a stepping stone to national office.

Why You Can’t Understand the Constitution Without the Common Law

Most countries have a law regulating how political parties must be organized and registered and dictating how they must operate. For example, if parties are required to practise internal democracy and employ transparent nomination procedures through primary elections, all-party caucuses, locally based candidate selection or similar options, women will generally have a better chance of emerging as candidates.

In contrast, highly centralized parties that are tightly controlled by a few leaders or organized around well-known personalities—usually men—may be much less receptive to selecting substantial numbers of women as candidates.

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This may be particularly true in post-conflict countries, in which political parties are frequently associated with male-dominated military groups. For example, they may require parties to affirm their position on gender equality in the party constitution. They may mandate that party management and party policy committees be gender balanced.

Political party laws, or in some cases election laws, may require a gender balance in candidate lists as well.


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Alternatively, laws may offer parties incentives such as more free broadcast time or additional public funding if they include certain numbers of women among their candidates. New laws are often introduced in post-conflict countries, providing an ideal opportunity to incorporate these and other provisions aimed at ensuring equal political participation for women. One of the most effective ways to ensure women are elected to office is to require that party candidate lists be gender balanced or include a certain proportion of women. This is a legal obligation in many countries.

The effectiveness of such systems, however, depends very much on the details of their implementation. For example, a requirement that candidate lists include 50 per cent women will not be effective if the women are all placed at the bottom of the lists. Women can have no realistic expectation of success in proportional systems unless they are placed high enough on the candidate lists to be elected if the party wins seats in the legislature. Some countries have adopted variations of this system, requiring that women hold designated places on the lists see box 3.

Parties may even try to circumvent the purpose of a zippered list by encouraging voters to reorder the candidates when they cast their votes. Experience in many countries has shown that open list voting often works to the disadvantage of women candidates unless women in the country are exceptionally well organized politically. In the worst cases, parties in some countries require women to submit pre-signed letters of resignation when they are nominated so that they can be replaced with men if they are elected. This type of situation can be averted if the law specifies that any woman removed from a candidate list or resigning from office must be replaced by another woman.


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This illustrates the importance of clarity and close attention to detail in the drafting of legislation. Box 3. Bosnia and Herzegovina : legal requirements for gender balance on party lists. The election law of Bosnia and Herzegovina includes a provision requiring that men and women each constitute at least a third of the candidates listed, and that both occupy positions high enough on the lists to ensure balanced representation if the party wins seats in the parliament.

Since the provision is written in a gender-neutral manner, it should not be regarded as a temporary special measure as set out in the Convention on the Elimination of All Forms of Discrimination against Women, but may constitute a permanent part of the law. Other countries have similar requirements. Article 4, paragraph 19, of the election law requires that every candidate list include male and female candidates.

The number of minority gender candidates shall be at least equal to the total number of candidates on the list, divided by three 3 rounded to the closest integer. In countries in which there is no legislation requiring that women be included on party lists, political parties may adopt voluntary targets or quotas for women candidates. This strategy has been implemented successfully in many areas.

Such measures are most effective when linked to a specific time frame and accompanied by training and resources for women party members and candidates. Parties may also adopt a code of conduct that includes requirements regarding participation by women and gender equality. For example, political party laws could stipulate that a certain number or proportion of party candidates in elections at various levels must be women, though this would be harder to implement fairly in majority systems than in proportional systems. Political party constitutions could require that a specific number or proportion of women be put forward as candidates, or parties could set voluntary targets to this end.


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