‘Best Practice’ Options for the Legal Recognition of Customary Tenure

Abstract

Is there a 'best practice' model for the legal recognition of customary tenure? If not, is it possible to identify the circumstances in which a particular model would be most appropriate? This article considers these questions in the light of economic theories of property rights, particularly as illustrated by the World Bank's 2003 land policy report. While these theories have their flaws, the underlying concept of tenure security allows a typological framework for developing legal responses to customary tenure. In particular, this article suggests that the nature and degree of State legal intervention in a customary land system should be determined by reference to the nature and causes of any tenure insecurity. This hypothesis is discussed by reference to a wide variety of legal examples from Africa, Papua New Guinea and the South Pacific. The objective is not to suggest that law determines resource governance outcomes in pluralist normative environments, but to improve the quality of legal interventions in order to assist customary groups to negotiate better forms of tenure security and access to resources.

Where do I report my land dispute? The impact of institutional proliferation on land governance in post-conflict Northern Uganda

“…In this process, state institutions critically determine the manoeuvring space in which representatives of customary institutions may operate. The state can choose to recognize customary institutions or curtail the scope of their powers (Fitzpatrick 2005). In this context of a state, customary institutions cannot be regarded as autonomous but as institutions whose representatives may challenge the authority of statutory institutions (Benjaminsen and Lund 2003).…”

“…Yet, increasingly there is acknowledgement of the often valuable role customary tenure may play in securing local tenure, and of the ineffectiveness or failures to establish state tenure systems. An evolutionist perspective, which is increasingly influential, even argues that the evolution of land tenure towards individual ownership is a gradual process, and that one should not interfere in local land tenure systems but leave them to evolve and determine their own outcomes and eventually result into well-defined property rights (see Platteau 1996;Peters 2004;Fitzpatrick 2005). …”

Formalizing Indigenous Commons: The Role of ‘Authority’ in the Formation of Territories in Nicaragua, Bolivia, and the Philippines

“…First, recognizing land tenure rights involves choosing an entity or person to be the legal representative of the rightsholders when rights are granted (see Fitzpatrick 2005). Even in cases whereby the names of all the people receiving rights appear on the land title (as in some cases of communal lands in the Guatemalan highlands for example), some entity needs to be recognized, or created, to act on behalf of the group.…”

Structural Change, Economic Growth and Environmental Dynamics with Heterogeneous Agents

“…the stationary states) of the dynamics of the model, obtained by imposing · E = 0, (20)- (22). Note that, for λ > 0, equations · E = 0 and · λ = 0 depend only on E and K and consequently solving them we obtain the fixed point values of E and K. The corresponding value of λ is obtained by solving the equationK = 0.…”