Certainty and
security of the law constitute the key concept for every development policy discussion on
the problems and challenges concerning land tenure. |
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Regardless of
whether one considers the failure of governments, development cooperation or NGO projects, one is confronted with the
lack of security with respect to land. This security is so natural for us that we hardly
take notice of it any more in successful market economies, e.g. the security of being able
to keep and bequeath land in use or the security of collateral
that a creditor may demand. The fact that this security is not available in all societies
is not necessarily apparent since there is a plethora of alternative policies disguising
this deficiency. |
Project
failure and lacking legal security |
Promising
measures towards a change into market economies remain with only limited consequences as
the majority of the population pushing for entrepreneurial opportunities has limited
possibilities for obtaining credit and being granted a loan based on land. This limitation
is due to land not being registered at the land registry,
the land being non-transferable in some countries as it is state property or the land only being able to be utilized in a limited
fashion due to prohibitions and restrictions on land cultivation. |
Lack of
collateral |
Of course, the
land use rights do not remain unchanged in such
situations. In colonial times the so-called traditional authorities further developed
(they were often new creations themselves). These were responsible for land distribution and conflict arbitration. Analogously, the creation of these "traditional
authorities" is currently occurring in the follower states of the former Soviet
Union. The lack of functional legal institutions, especially in areas where land is
increasing in value, has not led to a vacuum, but rather to a mobilization and rediscovery
of clans, tribes and religious brotherhoods. They are characterized by having very
flexible (one could almost say vague) legal principles. Collectivism or hierarchies are
implemented as organizational principles. |
Emergence of
legal insecurity: the new role of "traditional authorities" |
With respect
to development orientation, it is not desired that smallholders be afraid of the possible
effects of an increase in value of their land under these conditions. The more powerful
could acquire more land due to the increase in land value through public measures like
road construction, erosion control, irrigation or private investments such as clearing or
planting trees. The use of law as an instrument of uncontrolled power is present in both
African and Asian countries. The practices of some state administrations follow neither
the laws of the traditional nor modern authorities. In the case of a conflict, the
administration not the court makes the decision. They randomly expropriate the land to
benefit their own individual interests, or they only become active when blackmail money
has been paid and "award" the land under massive pressure to solvent urban
investors or political followers. These people by no means use the land more intensively
than the previous smallholder.
Overview 2: Certainty of the law in the transfer and use of
land |
Law in the
hands of uncontrolled power |
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When legal
security exists for the transfer and use of land and the institutional enforcement of
legal claims is present, then the key prerequisites for socioeconomic development are
existing. The base is less and less the control and command state of the past, but rather
the private sector either as an individual business or a cooperative in competition with (para-) governmental establishments (e.g.
in the former Soviet Union or African countries). The risk of private economic decisions
is only calculable when governments' activities are predictable. Legal security thus also
gains an eminent sociopolitical and institutional dimension derived from the immediate
economic meaning.
In order for the law to serve as a system as free from conflict as
possible for humans living together, it must be unambiguous, clear and reliable. Certainty
of the law means that those possessing the rights can be certain that their rights will be
valid as long as they are not revoked in a legal and comprehensible way. Therefore, legal
security cannot be separated from the rule of law.
For this to happen, the three following things must be equally
guaranteed:
Certainty of assignment of law,
Rapid information on attainable rights or rights to be respected, and
Conflict arbitration.
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Legal security
enables flexibility |
Certainty of
assignment is existing when the legal system provides flexibility and diversity by
differentiating between property rights (lease, mortgaging, sale, bequeathal, etc.) and
when these rights are transferable in their different forms. |
Certainty of
assignment |
The local land
registry and cadastre can be a
source of quick information. However, these are only not a threat and a "weapon of
the powerful", especially in the case of decentralized organization, when they are
managed and controlled by other legal authorities (courts, but also notaries and chartered
surveyors). The law only then remains the most important orientation if transactions are
mutually agreed upon and at an acceptable cost, and if solutions through institutions
having more legitimacy can be found in an acceptable amount of time and at affordable
prices in the case of a conflict. Delays lead to a bypass or circumvention of the law. |
Prompt
information on transactions |
Courts and
arbitrators, in hierarchical order, are the authorities responsible for arbitration. Of
course, without authorities (e.g. bailiff) to implement decisions made by the court, the
decisions are of little value.
Legal pluralism, i.e. competing acts or orders in view of the very same
pieces of land, must not be tolerated, but in view of clearly marked areas, autonomous
corporations might have a say in shaping such institutions. Water acts or hunting rights might be managed by specific associations (e.g.
cooperatives) which could set up their own statutes. However, such rules and regulations
must be made subject to judicial review.
As long as clear assignments, quick and inexpensive access to public
information and clear arbitration are guaranteed such regional or object-related
differentiation may work more smoothly than centrally organized law systems. |
Hierarchical
order of authorities responsible for arbitration |
