Análisis de brecha del sistema empleado por la organización y las mejores

Introduction

What kind of land law would best promote economic development and social welfare in the developing world, particularly in the countryside? Moreover: what kind of development is that? Is it betting on the large foreign investor or on the small semi-subsistence farmer and pastoral- ist?2If the answer to the delicate tenure position of many rural small- holders all over the world is not ‘private property’ any more, then what is it? Doing nothing is not an option either under the mounting pres- sure on rural land from large-scale investors, urban expansion and pro- blems with food security. As we saw in the introductory chapter some intermediate, third way of legalising extra-legal land tenure is in the making in many places. Governments, donors, NGOs now tend to shun from the old recipe of trying to completely replace local law but do not uncritically accept local tenure arrangements either. Instead recent rural land law reforms follow a mixed course, paying heed to re- commendations such as the one from Lavigne Delville (2000: 116): ‘Rather than suppressing legal pluralism by absorbing one system into another, the aim is to retain the most dynamic aspects of each.’ And this mixing or hybridisation of elements nowadays is done in many places where governments in designing new land law take local law into account, but also test and reform it against standards of human rights, gender issues, accountability of authority and so on.

This plurality of newadaptive policies, in their concrete features de- pending heavily on local and national specific conditions, leads to a wide variety of designs of legalisation of rural land tenure for develop- ment. But their common feature resides in the fact that they somehow try to bridge the gap between local, customary and state, formal rules, that is, to build formal state land law on extra-legal ground, if not on still functioning local law, then at least on local needs, interests and sensibilities. This ties in with the present day stress in almost any development project on participation of local stakeholders lest the pro- ject fails.

I can call these hybrid rural land law designsa bundle of third – or in- termediate – roads towards land tenure legalisation. In countries like Uganda, Mozambique, Tanzania, Niger, Namibia, to name just a few, there is ‘a new wave of land tenure reforms . . . [in which] many recent laws protect customary land rights and provide or allow for their regis- tration’ (Cotula et al. 2004: 5). In Latin American countries like Bolivia, Colombia, and Ecuador, land and water tenure laws as well as forest management schemes are in the process of being built on local indi- genous tenure institutions. Indonesia also tries to follow this road. However, finding a passage between the two extremes of top-down im- position of private property and leaving things at the bottom as they are, is challenging. In view of enormous differences in national and local contexts, goals and means of this operation often are not clear, concepts of development strongly contested, and the risks of derail- ment serious and manifold.

One conclusion of this introductory paragraph merits some empha- sis: also the novel hybrid and locally adapted approach needs strong state policies and state commitment. But the role of the state is not like in the earlier days of issuing a complete new package of land laws and regulations of land management. In the adaptive approach, the state facilitates the coming into formal being of local, customary land rights and authorities. In close cooperation with local stakeholders and gener- ally with civil society actors, state authorities clear up the existing local land rights, introduce some corrections on the relevant practices, pro- vide for simple and accessible registration devices, if necessary adapt or sometimes reconstruct local decision making practices, promote legal empowerment of the smallholders – among many other items that we will encounter in the description and analysis of the cases I am going to present below. In this new paradigm in land tenure regulation it is a matter of reconciling state perspectives of a programmatic, national and legal nature with people’s perspectives on local land law, on law and land use. Sometimes however the state tries to reconstruct local patterns so drastically that it seems that the old top-down centralist land law policies are making a come back. We will see these trends in the next paragraphs.

I venture to say that at least in rural areas in developing countries, the third paradigm has won.3 The need to plead for this paradigm is over now. Rather it is time to analyse and evaluate in detail different legal designs aimed at reconciliation between state and people’s per- spectives on land use and land law and how this works out on the ground. This is the main thrust of this chapter, and will be explored in the third section. However, before we study some of these bridging ef- forts, a more general overview of the main types of third road designs will be given (second section).