Toward Equity in Development When the Law Is Not the Law: Reflections on Legal Pluralism in Practice

TitleToward Equity in Development When the Law Is Not the Law: Reflections on Legal Pluralism in Practice
Annotated RecordAnnotated
Year of Publication2012
AuthorsAdler D, Sokbunthoeun S
Secondary AuthorsTamanaha BZ, Sage C, Woolcock M
Secondary TitleLegal Pluralism and Development Scholars and Practitioners in Dialogue
Pagination83-92
PublisherCambridge University Press
Key themesAccessToJustice, CivilSociety-Donors, Policy-law
Abstract

The relationship between the rule of law and equity is now a recurring theme in contemporary development discourse both internationally (World Bank 2005a) and in Cambodia (World Bank 2007). The reasons for focusing on law in discussions of equity in Cambodia are not difficult to understand. The country aspires to be a liberal democracy, and law features prominently in the way liberal democracies promise to deliver on equity.1 In such systems, a free public sphere ensures that debate and discussion can take place with equal participation from all citizens (Gabardi 2001, 551). Democratic accountability should ensure that the law is a legitimate expression of the public interest. As Kant put it most succinctly, in a just society “legislative power can only belong to the united will of the people” (Axtmann 1996, 18). Further, liberal ideals associated with the judiciary (independence, guarantees of procedural fairness, judicial review of executive acts, equality before the law, access to justice, and so forth) mean – again, theoretically – that the institutions responsible for the execution and enforcement of the law will work to promote equity in practice (O’Donnell 2004). The fact that both state and market actors are embedded in this sort of regulatory and institutional framework makes liberal democracy one possible model for an equitable society. This is a model that is associated with prosperity, and as such there are good reasons why developing countries might want to work toward it. Cambodia’s constitution is unequivocal in its commitment to liberal democracy, and since 1992, the assumption underlying the provision of more than $5 billion in international development assistance has been that the country requires support to make this transition (Chanboreth and Hach 2008). Unfortunately, the question of how to sup- port a country like Cambodia to develop institutions that function in a way that reasonably approximates the general models described in previous chapters is inherently difficult to answer.
Availability

Copyright Book
Countries

Cambodia
Document Type

Book Section

Annotations

Overall relevance: 

A key message communicated in this book chapter is that investigations of the role of law must at times also include an examination of power and authority in particular contexts. The authors introduce legal pluralism as a useful lens for understanding how land regulation works in Cambodia, and why donor efforts to transform land governance through ‘good’ land laws have largely failed. The historical overlaying of legal systems has resulted in a complex plural legal field where the State is not the only source of authority and legitimacy. State formal law (such as the Cambodian 2001 Land Law) co-exists and competes with other legal norms and practices, such as “land to the tiller” policies, which date back to pre-colonial times. Without overarching institutions with sufficient authority and legitimacy to resolve land conflicts, actors are left to leverage whatever political and legal recourse they have at hand to legitimise their claims. Inevitably, those with power and money are able to mobilise more resources that legitimise their claims, thus securing land rights at the expense of more vulnerable groups.

Key Themes: 
  • Dispute resolution and access to justice - In the absence of formal institutions that can arbitrate land disputes in a manner that is perceived to be fair, the poor resort to a variety of advocacy strategies to gain leverage in their negotiations with more powerful parties. Strategies of the poor include collective action, use of media, and appeals to local government, human rights NGOs and national institutions for intervention. Formal national laws are drawn on but mainly in the mode of legal argumentation, rather than with an expectation of their strict application by the State. While there is potential for these strategies to work in favour of the poor in a few cases, the results are highly contingent and entail high risks.
  • Civil society and donor engagement in land issues - The authors caution against simplistic depictions of the relationship between law and development, whereby law is often seen instrumentally as a progressive force for social and political change. Rather than simply reflecting policies and laws, institutions are embedded in wider economic, political and social contexts and power relations. Donor programs and other interventions aimed at increasing equity and other aspects of land governance through good law will remain a challenge unless institutions also become embedded in these relations. Ongoing problems with the implementation of law are likely to be due to competing norms and sources of authority and power, rather than issues of a technical nature or because farmers are not aware of formal law.
  • Land policy and land law - The concept of legal pluralism wards against a simplistic view of law that focuses on the State formal law as the principal or only legitimate legal system. In Cambodia, where formal laws compete with several other norms and practices, law often serves as a basis for negotiation of outcomes rather than for implementation. In increasingly polarised societies where powerful elites can mobilise patronage networks to security land rights, this often leads to unequal outcomes.
Research basis: 

This is a chapter in a book that explores the implications of legal pluralism for legal development. The argument set out in the chapter draws on the authors’ earlier work under the World Bank’s Justice for the Poor program, which has a country program in Cambodia since mid-2005. The program is aimed at informing, designing and supporting pro-poor approaches to justice reform.