43687 Questions? Contact j4p@worldbank.org April 2008 Volume 2, Issue 2 Legal Pluralism and Equity: Some Reflections on Land Reform in Cambodia by Daniel Adler, Doug Porter and Michael Woolcock * The Challenge of Institutional Reform in Plural Legal Systems What is J4P? Justice for the Poor (J4P) Institutional reforms in contemporary transformed in practice by the pre-existing is a global research and Cambodia are being undertaken in an norms and power relationships onto which development program environment characterized by pervasive they are transposed. The result: formal aimed at informing, legal pluralism--the not uncommon institutions that routinely fail to perform the designing and supporting situation in which numerous, contradictory functions that liberal theories of governance pro-poor approaches to and competing sets of rules and norms prescribe. justice reform. It is an regulate social, economic and political approach to justice reform relationships. The international development The above problem is reflected in the World which: community has a long and unhappy history Development Report 2006 which argues of engagement with such environments. that institutions tend to evolve in vicious or · Sees justice from the This is not simply because the links between virtuous cycles. Less equitable social perspective of the substantive policy and institutional structures lead to the "formation of poor/marginalized arrangements in the `transition to institutions that perpetuate inequalities in · Is grounded in social democracy' are many, uncertain and highly power, status and wealth" (p. 8). and cultural contexts contingent. It is also the case because the Conversely, equitable institutions only formal precepts of liberal democracy as emerge "in situations when the distribution · Recognizes the codified in new laws and regulations are of power is not highly unequal..." (p. 9). In importance of demand often inconsistent with prevailing social these terms the dilemma of development is in building equitable norms and administrative practices. In fact, how to bump (or nudge) a society from the justice systems they may be fundamentally at odds with the vicious cycle of self-reinforcing inequality to interests of economic and political elites who the virtuous cycle of self-reinforcing equity. · Understands justice as have an interest in contesting, neutralizing a cross-sectoral issue or capturing institutions created under the The post-Cold War confidence in the new legal framework. inevitability of democratic transitions supported a high degree of consensus about It is now common to describe Cambodia's how to assist this process. The governance arrangements as neo- characteristics of the desired system are patrimonial. A neo-patrimonial system is one defined. Development assistance then in which the politics of patronage and provides a technical shortcut; it helps to protection are played out through modern import regulatory frameworks and governmental systems and procedures. corresponding institutional arrangements. Neo-patrimonial systems thwart the Aid serves as a financial incentive to fuel realization of the rule of law, with its their adoption and implementation. Various requirement that a clear and accessible set kinds of conditionality remind governments of rules is applied in an impersonal manner. of their commitment to stay the course. Rather, in a neo-patrimonial system the law More recently, support is also provided to is applied selectively, to bestow legitimacy civil society groups, to animate citizen on administrative transactions of dubious demand and/or to undertake various legality, and to protect well connected watchdog functions to promote observance groups or individuals from prosecution. of the new rules and norms in practice. Thus, even when liberal institutional arrangements are formally adopted they The logic underlying this approach has been tend to serve other purposes as they are persuasive. The new laws and regulations The Challenge of Institutional Reform , continued will create an enabling environment. Citizens individual leaders or external circumstances will be empowered to make political demands. and demands. Elected and administrative officials will respond positively to new patterns of incentives and * Adapted from Adler, Daniel, Doug Porter and Michael sanctions, and this will lead to the desired Woolcock. (2007). Legal Pluralism and the Role of Interim change in how government and people Institutions: Challenges and Opportunities for Equity in Cambodia. Prepared as a background paper for World Bank. behave. The problem is that "people and (2007). Cambodia ­ Sharing Growth: Equity and institutions alike are embedded in wider social Development Report 2007. contexts that structure their choices, behavior, 1 Bevir, M. (2005) New Labour: A Critique. London: and development"1. Thus existing institutions Routeledge. pg. 35 can be highly resilient to changes in policies, "Where different Land in Cambodia: A Case of Multiple Competing Norms sets of norms ­ Issues of legal pluralism in Cambodia are well namely, the idea that vacant land can be social, illustrated in relation to land. Despite the fact occupied and that the act of farming land gives that few households have formal title, tenure rise to ongoing usage rights--is deeply administrative in Cambodia is more secure than is generally embedded (despite civil war and changes in assumed. This may appear to be a strange state law); (ii) Neo-patrimonial administrative and statutory ­ claim in a country where land disputation is conventions: a competing set of norms such a high profile issue, but assertions of deriving from both previous regulatory regimes line up, there is general tenure insecurity are nevertheless and practices that empower government difficult to substantiate. officials at various levels to authorize little conflict and transactions over lands within their Data from the 2004 Cambodian Socio- administrative jurisdiction; and (iii) Formal efforts at Economic Survey, a nationally representative statute: norms derived from the 2001 Land household survey, indicates that only 1.8% of Law and other regulations currently in force.2 formalization run plots are reported as having ever been subject As Sokha et al point out each of these regimes to a conflict. Of these disputes, two-thirds is again subject to its own set of internal smoothly. would appear to be minor, having been contradictions and inconsistencies creating an resolved (presumably at the local level) in added order of plurality.3 Where, however, three months or less. Another relevant statistic is that although only 49.3% of plots are Social norms of usufruct were both reaffirmed these sets of reported as having any official certification of and limited by the 2001 Land Law, which ownership, 77% are able to be used as converted possession rights into ownership in norms compete, collateral for a loan. certain cases. At the same time, however, the 2001 law restricted legal possession of other conflict arises, These findings are supported by a variety of lands, most notably `state public land' and qualitative and quantitative sources which lands which entered into private possession with conflicting suggest that tenure insecurity is concentrated after the promulgation of the law. But the among vulnerable groups, particularly poorer 2001 Law is far from being implemented parties basing households who occupy lands outside of core systematically. As such, it is unable to take on residential or farming zones such as those law's ideal role, that of a meta-norm around their claims on which are or were forests, flood plains, which all other norms should harmonize. seasonal lakes, marshes and informal urban Instead, the Law becomes one of a number of different settlements--that is, land contested by the competing norms and practices to which state.1 Through the lens of legal pluralism, it is people may turn in their struggles to secure normative suggested that one of the key characteristics land rights. Where these different sets of of these vulnerable areas is that their use is norms--social, administrative and statutory-- orders." subject to--and occurs in and through-- line up, there is little conflict and efforts at multiple conflicting norms. formalization run smoothly. Case study research suggests at least three However, where these sets of norms compete, sets of norms at work: (i) Social norms: in conflict arises, with conflicting parties basing particular the historical concept of usufruct-- their claims on different normative orders. Competing claims emerge even where none 1 World Bank/CAS. (2006a). Justice for the Poor? An appear to be `legal' in the narrow sense of the Exploratory Study of Collective Grievances over Land and Local word. The problem with the emergence of Governance in Cambodia. Phnom Penh: The World Bank; these sorts of `competing (il)legalities' is that World Bank/CAS. (2006b). Towards Institutional Justice: A Review of the Work of the Cadastral Commission in Relation to elites are often better able to `forum shop'-- Land Dispute Resolution. Phnom Penh: GTZ; and O'Leary, that is, select the normative framework which Declan. (2005). Pilot Independent Review of Systematic Land is most likely to legitimize their claims. Titling Field Systems and Procedures (Mimeo). It is in this context--acknowledging the role 2WB/CAS 2006b 3 of state law as a significant, though not Pel Sokha et al. (2007). Land Transactions in Rural Cambodia: A Synthesis of Findings from Research on exclusive reference point around which Appropriation and Derived Rights to Land (Mimeo). contests over land rights occur--that we move to consider the successes and limitations of current regulatory approaches. Current Regulatory Approaches: Successes and Limitations The Government acknowledges the problems progresses, the poor, who often live on or farm "It would appear described above and is attempting to deal with marginal areas, have been observed to be them by strengthening the role of state law in excluded from titling because they are deemed that the titling land management. This approach has proven to be occupying state land or living in informal successful in allowing the issuance of land settlements.4 process can titles on both a systematic and sporadic basis. Since 2005 around one million titles have been In short, it would appear that the titling currently be issued. This is a significant achievement by process can currently be executed in two any standard. situations: firstly, if it is activated and financed executed in two by elites (in the case of sporadic titling); and Sporadic (applicant initiated) titling, a relatively secondly, if it represents the formalization of situations: expensive service attracting high levels of fees substantially pre-embedded local (both formal and informal), is unlikely to have understandings about land use (in the case of firstly, if it is a positive equity impact. Initial studies on systematic registration), in which case more systematic titling, where whole communes go modest per-plot incentives provided by donors activated and through the titling process (and where fees are are adequate to finance the process. The substantially lower), indicate that the titling persistent strength of pre-existing norms is financed by process has a range of benefits, including demonstrated by the fact that even post-titling improving access to credit, reducing disputes, most sales are carried out in the `traditional' elites; and and increasing land value. While these benefits fashion by contract endorsed by the village do not exclude the poor, they have been chief and commune head rather than by secondly, if it observed to benefit the high and middle registration with the cadastral authorities as income households to a greater extent and required by the 2001 land law.5 represents the thus to have an "inherently regressive element".1 The situation with regard to state land reflects formalization of similar patterns. Despite the restrictions placed It is has also been suggested that the on new occupations of state land put in place substantially systematic titling process is unable or failing to by the 2001 Law, other norms and incentives recognize the usage rights of particularly prevail. On the one hand, ordinary citizens pre-embedded vulnerable groups, such as indigenous assume the right to clear and occupy vacant communities, urban slum dwellers and lands for residential, agricultural and local marginal settlements.2 Thus Markussen3 notes speculative purposes, while on the other, that there are strong incentives for the government representatives conduct understandings systematic titling process to work in areas discretionary transactions over what they see where there are "a large number of small, as state land.6 A set of new institutions for about land use." easy-to-measure plots", typically those which state land management established under the are characterized by "highly productive rice land law are geared towards the development fields." However, these are precisely the areas of transparent bureaucratic processes for the in which pre-existing tenure systems are best administration of such lands. To date, however, embedded, where the least conflict occurs, and these have been difficult to implement on a where the interests of the poorer majority are broad scale as they struggle to grapple with least at risk. Further, as systematic titling the competing normative frameworks and Current Regulatory Approaches, continued systems of incentives which keep state (Mimeo); and O'Leary, Declan. (2005) Pilot land de facto outside of the formal Independent Review of Systematic Land Titling Field regulatory system. Systems and Procedures (Mimeo). 2O'Leary 2005 and WB/CAS 2006b 3 1 Markussen, Thomas. (2007). Land Titling in Markussen, pg. 9 4 Cambodia ­ Findings from a Field Trip (Mimeo) Ibid, pg 25 5 pg 25; Deutsch, Robert. (2006). Beneficiary NGO Forum. (2008). Land Titling and Poverty Assessment of Land Title Recipients under the Reduction: A Study of Two Sangkat in Prey Nup Land Management and Administration Project District, Sihanoukville Municipality. Phnom Penh: NGO Forum. Conflict and Conflict Resolution "Collective action Tensions between multiple rule systems bargaining strategies rather than with around land issues suggest multiple sources of legitimacy, any expectation that the state could be and hence that existing systems of relied upon to enforce the law in an tends to be local, power are fractured, dynamic and equitable fashion. ephemeral and susceptible to change. The land disputes which have characterized Cambodia's Such strategies clearly have the potential targeted at powerful development over the past 15 years to shift decisions in favor of the poor in individuals within the mark the clashing of these rule systems individual cases. There is, however, little and the variant ideas of what is fair or in the way of institutional structure for administration. While just which they produce. this sort of bargaining. As such, effective in the short collective action around land issues Absent formal institutions which are able tends to be local, ephemeral and term, sporadic to deal with major conflict in a way targeted at powerful individuals within contests offer no which is perceived as fair, the poor use a the administration. Collective action is a variety of advocacy strategies to gain crucial mechanism for improving the direct way for political extra leverage in their negotiations with responsiveness of the state to the needs gains to create wealthier or more powerful parties. In of the poor.1 But while effective in the the most successful cases the poor act short term, this kind of sporadic political precedents and collectively to approach powerful contest offers no direct way for political procedures that are administrative officials, often district and gains to create precedents and provincial governors, to intervene on procedures which are then `fixed' in fixed in administrative their behalf. Appeals to the media, local administrative convention--such as is convention." human rights NGOs and national level possible through the titling process. institutions have also proven useful. When formal law is drawn upon in these 1WB/CAS 2006a, p.36 cases it is to legitimate multi-faceted Conclusion In examining the situation with regard When the poor contest actions of the to land we see that regulation has been powerful, the discourse is more often Further Information most successful where it attempts political than legal. In this contest, the largely to formalize, rather than radically poor will mobilize to `forum shop' to Visit our website: transform, existing social norms and secure their interests in much the same www.worldbank.org/justiceforthepoor power relations. Areas in which the manner as elites. As a consequence, transformative power of the law is political gains seldom find expression in Questions? called upon have been those where formal regulation, but rather require progress has been most challenging. further iterations of political mobilization, E-mail: j4p@worldbank.org For this reason, the transformation, the support of patrons, and extra-legal foreseen in the Land Law, of state land action. management from the patrimonial to the bureaucratic realm, has remained largely unrealized. Justice for the Poor Briefing Notes provide up-to-date information on current topics, findings, and concerns of J4P's multi-country research. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank.