Legal Pluralism and Social Justice in Economic and Political Development

Abstract

Summaries Legal pluralism is an approach which accepts the possibility that, within any given polity, there can be more than one ‘legal order’ and that the state is not the exclusive source of legal regulation. Nevertheless, defining whether a particular claim or social relation is legally sanctioned is a highly political matter, since law determines rights over people and over economic resources ‐ land, forest, water and minerals. The experience of colonialism showed how state law could be used to deprive people of their land rights. Private property law during the European experience of industrialisation was used to justify exploitation of labour and relationships of social and economic inequality. On the other hand, one should not romanticise local or customary laws which may equally enforce the interests of oppressive local élites. The merit of the legal pluralism approach is, however, that it forces us to concentrate on the empirical reality behind slogans about the ‘rule of law’; we should always ask, what is the actual effect of a particular normative order — whether state or non‐state, public or private — on people's rights over essential resources and on their ‘access to justice’, in the true sense.

Pro-Poor Land Reform : A Critique

“…This is because dynamic land-based production and distribution relationships that are essentially power relations -the very subject of reform -cannot be fully and properly captured by static offi cial statistics alone. The literature on natural resource management, especially in light of popular calls for decentralization and "self-governance" of management (e.g., Ostrom, 2001;Bromley, 199l;Agarwal, 2005;MeinzenDick and Knox, 1999;Ribot and Larson, 2005) and law and development (e.g., von Benda-Beckmann, 2001Manji, 2006;Nyamu-Musembi, 2006; but see also Peters 2004;Roquas, 2002;McAuslan, 2000;Houtzager and Franco, 2003) offers useful tools to better understand the problematic in this study. Ostrom (2001: 129) correctly criticized the conventional theory on "idealized models of private property and government property."…”

Water and Indigenous rights: Mechanisms and pathways of recognition, representation, and redistribution

“…In the ongoing debates over recognition, some have taken issue with the tendency to essentialize group characteristics (Boelens et al, ), while many others have pointed out the existence of asymmetries of power and resources in recognition forms and practices, at both the individual and societal levels (Tully, ). Writing in relation to natural resource rights almost 20 years ago, Von Benda Beckmann and von Benda Beckmann denounced the “repugnancy clauses” that serve as “new conditionalities” () of the recognition agenda:

In order for their rights to be recognised, local communities must remain ‘traditional’; they may not exploit the resources commercially and must prove that they do indeed maintain resources as efficiently and sustainably as anticipated… (Von Benda Beckmann, , p. 48).

…”

The Two Facets of Lesotho’s Urban Land Law and Implications for Planning

“…Notwithstanding the paucity of critical research on urban law in SSA, critical studies have emerged around the theme of law and society, albeit within the framework of a supposedly revived law and development movement (see von Benda-Beckman 2001;Crook 2001a, b;Houtzager 2001;Woodman 2001). Comparative research on Informal Land Delivery Systems in Six Anglophone African Cities that was completed in 2004 and from which this paper draws some lessons, is another case in point (see Rakodi and Leduka 2003;Ikejiofor 2004;Kalabamu and Morolong 2004;Leduka 2004a;Musyoka 2004;Nkurunziza 2004).…”