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Local Advocacy, Global Engagement: The Impact of Land Claims Advocacy on the Recognition of Property Rights in the South African Constitution

Heinz Klug

in Cause Lawyering and the State in a Global Era

The example of land rights litigation in South Africa challenges the assumption that cause lawyering is inherently adversarial, and shows how commitments to client demands have become suffused with a ... More

The example of land rights litigation in South Africa challenges the assumption that cause lawyering is inherently adversarial, and shows how commitments to client demands have become suffused with a wider responsibility to democratic accountability in the postapartheid era.Less

7 Blood and Soil, Place or Property: Liberalism, Land, and Ethnicity

Jacob T. Levy

in The Multiculturalism of Fear

Democracy and Respect for Difference: The Case of Fiji

Joseph H. Carens

in Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness

Discusses the case of Fiji where efforts to protect the cultural traditions of Fijians (the descendants of the indigenous population) have led to conflicts with Indo‐Fijians (the descendants of ... More

Discusses the case of Fiji where efforts to protect the cultural traditions of Fijians (the descendants of the indigenous population) have led to conflicts with Indo‐Fijians (the descendants of indentured workers from India), who constitute the largest other group of inhabitants of Fiji. The chapter defends the claims of Indo‐Fijians to equal citizenship in the name of democracy and criticizes efforts at political domination and exclusion that some have attempted to justify in the name of culture and history. At the same time, it defends some of the efforts to protect Fijian culture against the pressures of modern liberal institutions and values. In particular, it argues that the creation of a system of collective, inalienable land rights and the institutional reinforcement of deference to Fijian chiefs were methods of preserving Fijian culture that were compatible with a conception of justice as evenhandedness. The chapter takes up a number of questions about cultural authenticity and about the moral relevance of history.Less

Got Title; Will Sell: Indigenous Rights to Land in Chile and Argentina

Lila Barrera-Hernández

in Property and the Law in Energy and Natural Resources

This chapter analyses the issue of indigenous land rights in Chile and Argentina. Throughout South America, indigenous peoples are being pushed to extinction through government action (and inaction), ... More

This chapter analyses the issue of indigenous land rights in Chile and Argentina. Throughout South America, indigenous peoples are being pushed to extinction through government action (and inaction), which deprives them of their lands and seriously compromises their access to life-sustaining resources. To a considerable extent, the government's attitude towards indigenous land rights is a result of a desire to attract investment to the energy and energy-related sectors. Though investor companies may appear to benefit from these tactics in the short term, it is doubtful that they will be better off in the long run as sustainability is compromised.Less

‘Landed’ Citizenship: Narratives of Aboriginal Political Participation

John Borrows

in Citizenship in Diverse Societies

A personal account is given of the treatment of Canadian Aborigines (North American Indians) and Aboriginal land. Despite some achievements in the recognition and affirmation of Aboriginal rights, ... More

A personal account is given of the treatment of Canadian Aborigines (North American Indians) and Aboriginal land. Despite some achievements in the recognition and affirmation of Aboriginal rights, indigenous citizenship with the land is becoming increasingly tenuous. The author advocates Aboriginal control of Canadian affairs (as well as Aboriginal affairs), in the light of the increasing participation of Aboriginals at all levels in Canadian society. He does not advocate assimilation, but argues that citizenship under Aboriginal influence may generate a greater attentiveness to the land uses and cultural practices that are preferred by Aborigines.Less

State‐Oriented and Community‐Oriented Lawyering for a Cause: A Tale of Two Strategies

Ronen Shamir and Neta Ziv

in Cause Lawyering and the State in a Global Era

This chapter analyzes two instances of Israeli land segregation policy in the township of Katsir; in the first, an Arab couple petitioned the Supreme Court of Israel against their rejection, on ... More

This chapter analyzes two instances of Israeli land segregation policy in the township of Katsir; in the first, an Arab couple petitioned the Supreme Court of Israel against their rejection, on grounds of ethnicity, of residency entitlement; in the second, Jewish residents appealed against a covert deal by which an Arab family had acquired property rights in Katsir via a Jewish intermediary. In both cases, the advocacy of cause lawyers has illustrated how major questions of state policy are being decided, not by the state, but by activism at municipal level.Less

Leases, Mortgages, and Servitudes

Stuart Anderson

in The Oxford History of the Laws of England: Volume XII: 1820–1914 Private Law

This chapter discusses leases, mortgages, and servitudes in the 19th century. Topics covered include Types of Lease and the Power to Grant them, eviction and forfeiture, covenants, factors that ... More

This chapter discusses leases, mortgages, and servitudes in the 19th century. Topics covered include Types of Lease and the Power to Grant them, eviction and forfeiture, covenants, factors that shaped mortgage practice in the 19th century, evasion of usury laws, limits of contractual freedom, and servitudes and allied rights over land.Less

The Evolution of the World Bank's Land Policy

Klaus Deininger and Hans Binswanger

in Access to Land, Rural Poverty, and Public Action

In most rural areas in many developing countries, land, and the means to accumulate and transfer wealth between generations on the land, prove to be essential means for generating a livelihood. As ... More

In most rural areas in many developing countries, land, and the means to accumulate and transfer wealth between generations on the land, prove to be essential means for generating a livelihood. As such, the need arises for land access to be regulated, land rights to be assigned and imposed, and conflicts that involve the ownership of land to be resolved since these affect the economic and social status of households, the capacity of households to produce marketable surplus, their incentives for managing natural resources, and their capability to access financial markets. In this context, some of the most important public goods include administrative infrastructure and land rights for enabling land market operations. This chapter looks into how the World Bank had been able to issue the ‘Land Reform Policy Paper’ (LRPP) to address these needs.Less

The Changing Role of the State in Latin American Land Reforms

Alain De Janvry, Elisabeth Sadoulet, and Wendy Wolford

in Access to Land, Rural Poverty, and Public Action

The power of the state — regardless of whether this is practiced over democratic, authoritarian, and other forms of government — has been used by all Latin American governments to impose ... More

The power of the state — regardless of whether this is practiced over democratic, authoritarian, and other forms of government — has been used by all Latin American governments to impose modifications in the land access of certain household categories in regions that experience population pressure to further the redefinition of land rights for those who already have access. Looking into the history of land reform in Latin America, which can further be divided into three phases, reveals why the eighty years of land reform have only brought on minimal improvements in solving land access problems and in reducing the high inequality which is made evident in land distribution. When taking a social point of view, the skewed distribution may be attributed to land misuse. This chapter examines the state's changing role through assessing the access to land given to minifundists and the landless and the competitiveness of those who are with titles in the reform sector.Less

Reparations for Neglect of Indigenous Land Rights at the Intersection of Domestic and International Law—The Maya Cases in the Supreme Court of Belize

S James Anaya

in Reparations for Indigenous Peoples: International and Comparative Perspectives

This chapter presents an example of how a claim for reparations is to be submitted before a court. It is based on two separate claims, which were actually filed by representatives and members of the ... More

This chapter presents an example of how a claim for reparations is to be submitted before a court. It is based on two separate claims, which were actually filed by representatives and members of the indigenous Maya villages of Conejo and Santa Cruz to the Supreme Court of Belize on 3 April 2007. It presents the skeleton argument prepared for the claimants, who alleged that the government of Belize violated their constitutionally recognized customary land rights. It is a ‘living’ example of how historical evidence, cultural arguments, international law, and domestic law may be combined in order to build a solid argument which may prove strong enough to convince a court that the communities concerned are to be granted actual redress for the torts suffered.Less

Introduction

Jane Whittle

in The Development of Agrarian Capitalism: Land and Labour in Norfolk 1440-1580

This introductory chapter sets out the purpose of the book, which is to explore the early beginnings of agrarian capitalism in England. The question of ... More

This introductory chapter sets out the purpose of the book, which is to explore the early beginnings of agrarian capitalism in England. The question of how and why capitalism developed in England has been a source of debate. Several historical sources were used to examine a wide range of topics such as rights to land and the level of rent, the land market and inheritance, the distribution of land and wealth, the landless, wage-earners, rural craftsmen, as well as the labour laws.Less

Voice and Reflexivity in Essential Resources: Reforming the Community Land Regime in Kenya

Laila Macharia

in Governing Access to Essential Resources

Macharia shows how the process of negotiation, a new social contract, and a constitution can be used to broaden the Voice of communities over land rights. She attributes Kenyan conflicts of land ... More

Macharia shows how the process of negotiation, a new social contract, and a constitution can be used to broaden the Voice of communities over land rights. She attributes Kenyan conflicts of land access and use rights to the history of colonization and the tension between community land rights and property regimes imposed during colonial rule. However, community based organizations participated in the drafting process of a new constitution and were able to voice their grievances and aspirations. Moreover, institutions were created to monitor the process of land reform – creating the possibility for continuing dialogue and thus Reflexivity. This case offers some perspective on how processes of institutionalization can further inclusion and contribute to social peace.Less

The Social Construction of Entrepreneurs

Annette Miae Kim

in Learning to be Capitalists: Entrepreneurs in Vietnam's Transition Economy

This chapter outlines the alignment of interests which helped form the new economic relations and transactions behind Vietnam's private real estate market. Introducing the term fiscal socialism, it ... More

This chapter outlines the alignment of interests which helped form the new economic relations and transactions behind Vietnam's private real estate market. Introducing the term fiscal socialism, it shows how the firms were able to connect the increased land use authority that was decentralized to under-funded local governments with the desire for more housing from the rapidly growing number of households with rising incomes but few investment alternatives. More importantly, the chapter details how the interests of fiscal socialism were aligned through the reconstruction of social cognition. It also shows how social cognition was re-constructed again when other members of society, particularly the rural population who were displaced for new urban development projects, contested their role in fiscal socialism.Less

Defending and Defrauding the Indians: John Wompas, Legal Hybridity, and the Sale of Indian Land

Jenny Hale Pulsipher

in Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America

As Jenny Pulsipher recounts, the mid-seventeenth-century Nipmuc Indian John Wompas familiarized himself with both Native and settler concepts of land tenure, distribution, and sales, becoming adept ... More

As Jenny Pulsipher recounts, the mid-seventeenth-century Nipmuc Indian John Wompas familiarized himself with both Native and settler concepts of land tenure, distribution, and sales, becoming adept at switching opportunistically between them in his career as a speculator and (untrustworthy) intermediary. Wompas emerged out of a world where Natives used English law to defend their land rights, while colonists deployed Indian law to deny those rights. He outstripped his contemporaries in his skill at drawing on his Native identity to obtain land, then manipulating English law to sell and record this land, and later switching to Indian norms to evade obstacles put in his way by colonial authorities. By drawing on both Native and English legal practices, Wompas aimed to make land transactions intelligible to both sides, thus increasing the chances that sales would be accepted.Less

The Development Impact of Gender Equality in Land Rights

Karen O. Mason and Helene M. Carlsson

in Human Rights and Development: Towards Mutual Reinforcement

This chapter addresses gender disparities in land rights. It also determines the reasons why secure rights to land generally improve sustainable development and human well-being. In addition, it ... More

This chapter addresses gender disparities in land rights. It also determines the reasons why secure rights to land generally improve sustainable development and human well-being. In addition, it discusses gender disparities in the control of land and some of the factors that underlie these disparities. Moreover, it reports the specific gains to be derived by insuring gender equality in rights to land. It makes policy recommendations to improve women's titling to land and the benefits that this secure titling can bring. General determinants that are significant across a variety of settings are: inheritance laws, either customary or statutory; the manner in which land reforms are affected; the concept of the ‘head of household’ and its application in land titling; and the economic inequality of males and females in land markets. The data indicated that greater gender equality in land rights helps to empower women and enhances economic growth and human well-being.Less

Rural Land Rights in China

Roy Prosterman

in Law and Economics with Chinese Characteristics: Institutions for Promoting Development in the Twenty-First Century

Most of China’s people remain rural and significantly dependent on agriculture for their livelihood. Decollectivization in 1979-84 led to large production increases and a massive decline in poverty. ... More

Most of China’s people remain rural and significantly dependent on agriculture for their livelihood. Decollectivization in 1979-84 led to large production increases and a massive decline in poverty. But insecure tenure constrained farmers’ ability to invest, abetting a widening urban-rural income gap. Beijing’s response since 1993 has been legislation mandating for farmers 30-year rights that are secure and documented (and now, renewable), leading to a crucial tug-of-war with local authorities over implementation. Our large-scale surveys show the specifics of mixed implementation success, but the slow pace has led some to call for outright private ownership. Close analysis, however, indicates no substantial advantages for private ownership over 30-year renewable rights in the Chinese setting. Both require implementation, and the latter already exist in good form on the law books and enjoy solid support in Beijing. The focus should therefore be on further practical measures of implementation for those 30-year rights.Less