Christoph Eberhard (ed.)
Law, Land Use and the Environment. Afro-Indian Dialogues
Pondichery, Institut Franais de Pondichry, 2007, 549 p
(order at : library@ifpindia.org)
Law, Land Use and the Environment:
An
Introduction*
Christoph Eberhard
Land Law and Natural Resources Management
The questions of land use and
of the environment plunge us into the heart of human life. They invite us to
reflect upon the ways that human beings construct their relationship to their
environment, how they adapt to its constraints, how they shape it. However,
this interaction is not only that of a subject, man,[1] and of an object,
nature. Nor is it the action of the former on the latter, as a Cartesian
reading could suggest, in which man appears essentially as the one who has to
subjugate nature through his will; a will to which the latter shows resistance
through its inertia. Without entering into deep ecology considerations and
without adhering to the Gaia theory of a living
earth that is animated by a soul and is therefore also a subject, and
maintaining the anthropocentric vision that characterizes social sciences
rooted in Western modernity,[2]
it becomes increasingly clear that the action of man on his environment is
mediated by his representations, by the way he envisages his place and his role
in the world, and by both his relationship to the world and the relationships
he establishes with his fellow human beings. The question of land use and of
natural resources management, la question foncire, arises because we are not Robinson Crusoes who live solitarily on our
island, but human beings who have to share spaces for living as well as the
resources they contain.[3]
tienne Le Roy, who sees Law[4]
as deeply fashioned by our imaginations and who considers that the relationship
to land, the rapport foncier, is an imagined
relationship between human beings concerning a space that only exists according
to the conventions inscribed in systems of ideas before being materialized in
social space (Le Bris, Le Roy, Matthieu 1991: 12), proposes a definition that
sums up the elements mentioned. Land use and natural resources management, le
foncier, is the particular set of social relationships
whose support is land or territorial space. These social relationships are
principally determined by economic factors (primitive accumulation of capital
and extraction of income), legal factors (norms of appropriation and modalities
for conflict resolution) and by techniques of land development and planning
that materialize and characterize these social relationships in distinct
regimes. He adds, and this remark is fundamental in the contexts of contemporary
research, that () more substantially, it is politics that influence the way
in which the question of land use and natural resources management is posed and
approached. This sensitivity of land law and natural resources management is
increased by the competition or the contradiction of the choices made at the
international, national and local levels (Le Roy in Le Bris, Le Roy, Matthieu 1991: 13-14).[5]
Introducing
the Environment
An additional element has been added over the last ten
years to the analysis above. After having mainly considered the land security
of the human actors, studies on land use and natural resources management have
progressively opened up to more ecological considerations integrating
environmental issues into their analyses. It appears less and less satisfying
to think about the environment only in terms of its exploitation by man and by
preoccupying oneself mainly with the organization of use and management systems
aimed at securing the stakeholders. World demography is exerting a heretofore
unknown pressure on the planet and our contemporary lifestyles have a
tremendous and often irreversible impact on nature. Little by little we
understand that the environment is not just a space surrounding us that we can
exploit as we want. It is the environment in which we are inscribed.[6]
We have the responsibility to preserve it, if only to ensure our survival and
that of our children. We have to move towards a juste milieu, a right environ-ment and a middle path,[7] an approach
that makes it possible to reconcile human needs with the safeguarding of our
planet and its ecosystems (Ost 1995). This new awareness is reflected on the
level of political, economic and legal action. The increasing space occupied by
sustainable develop-ment in the discourses and institutional bodies on
international, national and local levels bears witness to this. On the one
hand, sustainable development is supposed to balance the economic, social and
environmental pillars; on the other hand, it should permit present generations
to meet their needs without compromising the ability of future generations to
meet theirs - according to the Brundtland reports well-known formula (WCED
1987). In a Francophone context, one can also note the development of research
that aims to emancipate land use and the management of natural resources from
the propritariste framework[8]
and to open it up to patrimonial approaches that echo the introduction of the
notion of patrimoine[9] into
environmental law (see Klemm 1996).[10] We seem
indeed to be confronted with the challenge of a law to be invented, as
Olivier and Catherine Barrire point out (2002: 15-16). For these authors, to
represent foncier as only referring to the
relationship to land insufficiently reflects the real scope of mans action on
his environment, which has to be integrated into research on environmental
management. It is necessary to also consider the relationship of man and space.
The study of the conjunction of land, as a support, and of surface area makes
it possible to elaborate a combination of rights related to space, to resources
and to the ecosystem. On this basis, it becomes possible to think about a
regime that does not rely on the appropriation of land, but that is contained
in the duality of espace / milieu, of
space / environment. This approach defines a
form of patrimonial management that is designated by the neologism foncier-environnement, which could be translated in English as Law and natural resources
management environment. This makes it possible to free research from a
ruralist approach to land use and natural resources management that restricts
its analysis to the relationships of access to resources and their distribution
among the different actors and that fails to take ecological processes and all
natural elements into account. Land use and natural resources management cannot
continue to be defined solely in terms of rules about renewable resources or in
terms of the construction of spaces; it must integrate an environmental
dimension.[11]
The Issue of Urban Land Use
While an approach to land use and natural resources
management that includes environmental sensitivity (foncier-environnement) would seem to be confirmed, one must underline the emergence of another
major issue that shakes the traditional ruralist approaches to land: urban
explosion. Humanity has now entered a new historical phase. Today the majority
of the world population lives in cities and this trend towards urbanization is
not likely to decrease soon (Delcourt 2007: 7).[12] Moreover,
this urbanization is connected with an increasing impoverishment of urban
populations and assumes an unprecedented form. To the classical rural exodus,
one can add today a colonization of the rural world by the cities. The emerging
cities and the megapoles spread everywhere horizontally. They encroach more and
more on the surrounding territories. The rural world gets urbanized in situ. It is no longer the peasants who move to the cities, but the city that
reaches out to the peasants. Through complex processes of co-urbanization,
cities keep on pushing their borders farther and farther; they create new nodes
between them; they bypass small towns; they encircle and enclose villages. Vast
polycentric zones punctuated by hybrid semi-rural and semi-urban spaces appear
(Delcourt 2007: 10). This evolution questions research on land use and natural
resources management as it blurs one of its fundamental distinctions between
the rural and the urban world, which was reflected until recently in the
separation of the approaches of rural land use and urban land use, whether on
the scientific or on the political level. While recognizing the discontinuities
between rural and urban land situations, it is becoming increasingly necessary
to articulate these two fields and to begin to identify the continuities and
the common dynamics (Durand-Lasserve 2007).
Land Use, Natural Resources Management and
the Environment in the Context of the Globalization of Governance and
Sustainable Development
The increasing consideration given to the environment
that makes it necessary to combine different perspectives, to go beyond the
borders of different disciplinary approaches and to move towards more holistic
approaches, is inscribed in the context of an important modification of our
political, legal, economic and scientific representations that also lend
greater complexity to our modern games. We find ourselves in a paradigmatic
transition in which the forms of organization and perception of the world inherited
from modernity are partially challenged and complemented by new approaches (de
Sousa Santos 1995, Arnaud 1998). Consequently, the segmentation and
compartmentalization that are characteristic of the modern scientific
approaches, as well as our modern ways of envisaging the political, the
economic and the legal, are being questioned. In science, the belief in a
radical separation between the observer and the observed does not hold anymore
and the importance of re-inscribing both in an integral whole is recognized. As
to the management of our societies, it seems less and less realistic to
separate the economic, social and environmental fields, as the concept of
sustainable development illustrates. Reality is complex and in order to meet
the challenges it presents to us, one must open up to interdisciplinarity, to
intersectorality, to approaches that permit the participation of all
stakeholders; a crossing of points of views and an articulation of needs,
logics and issues that may seem to be incompatible a priori (see for example Calame 2003). This evolution emancipates us from the grands
partages, the big divisions, of modernity described by
Bruno Latour (1997: 132ff.) between them and us, between humans and
non-humans that can be further divided in multiple ways: between science and
politics, between laymen and experts, between administrators and those who are
administered, between administrators of people (politicians) and administrators
of things (scientists). At the political-legal level, this transition from the
simple, the pure, the segmented to the complex and the hybrid[13]
is manifested as the passage from the classical forms of government to new
forms of governance, which echoes the transition observed in Law that some
authors have analyzed in terms of a possible transition from the pyramid to
the network (Ost & van de Kerchove 2002) and which could be the necessary
passage to a dialogical democracy (Callon, Lascoumes, Barthes 2001).
However,
if governance and sustainable development have become key terms in the
semantic field such as it is reshaped in the era of globalization, and if they
often appear as two sides of the same reality that should be promoted in the
interest of the survival of our species and of our planet, it is important not
to get lost in ideological approaches that are disconnected from field
realities. Such approaches may not only turn out to be ineffective, but even
highly counterproductive, to the point that they may lead to real human and
natural catastrophes.[14]
Further, the stakes are all the more crucial, not only because the fuzziness of
these terms gives them an appearance of universality, but because they are used
as much as scientific concepts[15]
as ideological slogans.[16]
It is
therefore essential to foster the grand theoretical debates on the shaping of
our present and of our future through case studies that illustrate and thus
permit us to understand the mechanisms and processes that are involved. Drawing
attention to diverse fields and problematiques at more or less global or local
levels also highlights the issues involved in the translation from one scale to
the other, from one world to another, from one domain of action to another.[17]
The recognition of this issue of translation contributes on a deeper level to
raise awareness to the importance of intercultural dialogue around the
questions of governance and sustainable development.[18]
The Origins of a Collective Research Dynamic.
Its Issues and the Difficulties of Dialogue
This publication is the result of a collective
research dynamic, the aim is to consider the issues presented above. It was a
matter of exploring the challenges and perspectives of land use and natural
resources management in the contemporary context. The latter is characterized,
among other factors, by globalization, by an increasingly unsustainable
pressure exerted by man on his environment and by a reorientation from
political and legal approaches in terms of government and growth to approaches
in terms of governance and of sustainable development. One can add the
emergence of the growing need for intercultural dialogue that entails a whole
series of issues related to translation. On a more modest level, the aim of the
conference was to provide an opportunity for African or Africanist and Indian
or Indianist researchers to meet in order to engage in dialogues on land and
environmental issues as they appear in these two contexts.[19] Although there exists
a reciprocal interest between these two worlds, dialogue seemed to be all the
more important since they unfortunately often ignore each other, Indian research being largely Anglophone, whereas research pertaining to a
great part of Africa (especially the regions studied by Francophone scholars)
is in French.
The
project crystallized through the collaboration of a number of institutions and
of dynamics, that must be acknowledged and without whose active participation
our wish for dialogue could not have found fruition, first in the form of an
international conference in Pondicherry in March 2006, then in the form of this
publication. In alphabetical order they are: the Association Francophone
dAnthropologie du Droit (AFAD / Francophone
Association of Legal Anthropology), of which quite a number of members have
been working for several years on land law and natural resources management
issues, but mostly in Francophone contexts (see CAD 2002); the Dr. Ambedkar
College of Law of Pondicherry, with its strong interest in comparative research
between Francophone and Anglophone, African and Indian approaches; the dynamic Droit,
gouvernance et dveloppement durable (Law,
Governance and Sustainable Development) based at the Facults universitaires
Saint Louis (FUSL) in Brussels; the Institut Franais de
Pondichry (IFP French Institute of Pondicherry), serving
as a window of France and increasingly of Europe on India and of India on
Europe and on France; an informal network of Indian researchers that has
emerged around the question of legal pluralism after a first collective
publication on legal pluralism in India (Eberhard & Gupta 2005) and has now
created an official structure, the Asian Initiative on Legal Pluralism (AILP);
and last but not least, the Socit de Droit Compar de Pondichry (Society of Comparative Law of Pondicherry) that could not remain
indifferent to this comparative research, even if it went beyond the strict
borders of law.[20]
To
bring together researchers from different disciplines is already a difficult
task if one aims at going beyond a mere juxtaposition of discourses and if one
tries to move from mere multi- to a real interdisciplinarity (see Kothari 1990:
23ff., Ost & van de Kerchove 1987: 25ff.). We have taken the challenge even
farther: on the one hand, the conference was not only open to researchers from
different disciplines but also to practitioners;[21] on the other
hand, it was bilingual, English and French. The collective work soon revealed
that behind the two languages lurked two different ways of approaching Law as
well as visions of the world and that everything was not always translatable.
Indeed, even before penetrating the African and Indian worlds, the official
State level already confronted us with very different ways to think and
practice Law, a Civilist way characterizing most of the African countries in
the discussion and a Common Law way characterizing the Indian legal system.[22]
If one
had to beware of false friends such as proprit / property and to make sure to translate the proprit prive of the Code civil by private ownership, it appeared
quickly that behind the words lay very different ways to pattern the legal
fields and to tie together the problematic of law, land use, natural resources
management and the environment.[23]
The French foncier itself was transformed in
English into land law and natural resources management, thus transforming the
whole original problematique. If the majority of the Francophone contributions
share a vision of foncier that is foremostly perceived
in terms of land security (scurit foncire),
especially of rural land, the Indian authors circumscribed their field of
enquiry in a much broader manner by including water management, pisciculture,
mining, etc. It should also be noted that in a Francophone context, the term foncier refers to a multiplicity of legal envelopes that correspond to as many
statuses and procedures, called domaniales or foncires that in general today are all conceived so as to be situated in relation
to the right of private ownership (droit de proprit), as Alain Rochegude (2002: 20) points out. Consequently, for the
Francophone authors to open up the field of land law and natural resources
management, which is predominantly conceived in relation to State law that
organizes ownership (proprit) in a strict manner,
towards new governance approaches seemed to constitute an important challenge,
far more important than for their Indian colleagues. The latter, embedded in a
system inherited from Common Law, seemed much more at ease in crossing their
analyses with governance and sustainable development approaches. This may
partly be explained by a generally more pragmatic attitude of Common Law that
does not privilege () the values of generalization and standardization
authorized by the common manner of legislative command, but the values of
individualization and particularization (Legrand 1999: 97). This leads to more
ease in bringing together approaches that are perceived as distinct if one
looks at them from the point of view of a Civilist law tradition. Indeed, from
a Common Law point of view, the arguments founded on
coherence are prone to induce error, as the great richness of Common Law
rests in its practical character, which permits it to adapt to the rich
diversity of human lives. Thus, the fact that a given doctrine is not
logically coherent with one or more other doctrines does not constitute a
reason for its rejection (Legrand 1999: 75). One can further underline the
broader definition of the field of research by the Indian authors and the fact
that the Common Law regime of property refers to a bundle of rights from
the very beginning. And this bundle of rights is even complemented by certain
mechanisms of responsibility, as illustrated by the institutions of trust and of stewardship. Consequently, it was not always
easy to convey the importance of a patrimonial approach in emancipating
research and law from the all ownership (tout proprit) approach to colleagues who are not embedded in a context marked by the
existence of a narrow, absolute and closed notion of proprit. For property in Common Law, while referring to a bundle of rights, also
contains duties that can be mobilized in order to take into account larger
environmental or social considerations. In return, these discussions have not
failed to question the reflections of the Francophone researcher regarding the
promotion of proprit prive / private ownership
by development agencies that are largely embedded in an Anglo-Saxon vision.
Placed in its original context, could it be that the promoted system might be
more nuanced than the implicit reference to a French droit de proprit would invite one to think?
Despite
the difficulties, the dialogues were very fruitful. The endeavour made it
possible to become aware of the enormous stakes of translation between
different linguistic, legal and mental universes and of the impossibility of
perfect translation - notwithstanding the illusion that is created by
simultaneous translation during large international summits. It was the
necessity to respect the topoi of the different
participants that finally convinced us to publish a bilingual book in English
and French and not to opt for a translation of all texts into English in order
to reach the broadest audience. Indeed, if the essence of the diverse
problematiques has been conveyed without doubt in the two languages, it remains
that the presentations really only make sense in their own language and in
their own cultural and scientific context. For those who do not master both
languages, we have decided to provide an extended abstract for each
contribution that should allow the reader to grasp the essential problematique
of those articles that are written in the language not mastered. Finally, the
awareness of the difficulty of dialogue between two languages and two systems
of law of European origin underlines the enormous importance of taking into
consideration the languages and visions of Law and the world that exist in the
shadow of State law in African and Indian States. Numerous contributions to this
publication point towards these realities, unfortunately, without deepening
them in all their originality. To undertake these explorations will be the
challenge of our future research.
A
final important remark: If we have indeed tried to respect the topoi of all contributors, it is clear that the general research dynamic was
oriented from a particular point of view. The initiative came from the
Francophone Association of Legal Anthropology (AFAD) and the Law, Governance
and Sustainable Development dynamic of the FUSL. Hence, it is a Francophone
approach largely shaped by the point of view of the anthropology of Law that
has informed the whole dynamic, as is reflected in this introduction. I hope
that the reader will not perceive this as a shortcoming, but will recognize
this as the intrinsic limit to any dialogue: one has to start from a given topos - even if this point of departure necessarily influences the continuation
of the dialogue and the restitution of its conclusions. As Pierre Legrand
(1999: 64) reminds us in relation to any comparative approach that needs to
open itself up to other universes: The comparatiste approaches a legal culture from a place that is never this legal culture
itself, but that is thus always, at least a little, out of itself.
Consequently he remains in a struggle against the difficulty to articulate one
relation with another, which can only be asymmetrical, and he has to recognize
that his critical activity is dominated by this dilemma.
The Epistemological Foundations of the
Research
After having painted this impressionist image of the
field of research and after having highlighted some major issues, we will now
briefly present the contributions in order to equip the readers with a map to
help them situate themselves on their journey through this publication.
It
seemed to be appropriate to extend this general introduction with two other
texts of an introductory character, permitting the reader to fully benefit from
the journey of discovery provided by the African and Indian studies that
follow. The first text sets anew the terms of the contemporary issues in the
field of land law and natural resources management by contrasting them with the
dominant ideology of private ownership / proprit prive. tienne Le Roy highlights a number of transversal issues involved in
contemporary approaches to land law and natural resources management. These
include the necessary emancipation from the ideological framework of private
ownership / proprit prive promoted by development
institutions and the necessity to complement top-down approaches with bottom-up approaches that
consider the everyday realities of the concerned stakeholders. Despite the
dominant discourses, and especially in contexts in which the authority that is
supposed to guarantee this right is unable to do so as is the case in many
states in the South , land security (scurit foncire) is only incidentally linked to the holding of titles and of the more or
less absolute right conferred by them. A Code civil proprit approach is only pertinent in contexts where an tat de Droit (Rule of Law) and a generalized market exist. If the State fails to play
its role, there is no authority that can represent the general interest and
guarantee ownership (proprit). Further, when the
market is not generalized and situations of imperfect marketization (marchandisation
imparfaite) prevail, which is characteristic of a majority
of contexts in the South, private ownership can turn out not only to be
inefficient but even dangerous: a sledgehammer to crack a nut. tienne Le
Roys contribution also underlines the necessity of a more pragmatic approach
that is sensitive to field realities and attempts to render complementary and
operational the legal mechanisms of the State and the indigenous processes that
contribute to the stability of exchanges and to the pacification of society.
The concepts of patrimoine and patrimonial
management seem to provide valuable tools that could
offer solutions to meet contemporary challenges, while disposing of the
blinkers of the ideology of globalization and private ownership / proprit
prive.
Matthieu
Galey puts this approach into perspective through his analysis of the
cognitive adaptor provided by Charles Reinold Noyes classification of
systems of property. If tienne Le Roys reflections point to issues that the
reader will encounter throughout this publication, they are nevertheless rooted
in a perspective that is strongly shaped by a Civilist outlook on Law. Matthieu
Galeys presentation sheds light on this specificity and allows one to grasp
the importance of formal differences. Through these differences, it is possible
to contrast the ways in which the appropriation of land is legally organized in
the Common Law tradition and in the Civilist or Romano-Germanic traditions. Far
from being simple manners of speaking, these differences point to substantial
institutional differences that can be characterized by modelling the structure
of systems of property conceived as systems of relationships between persons
around a bien immeuble, land. This modelling
provides a useful tool to navigate between the Civilist and the Common Law
legal worlds. In addition, it prepares the reader for a smooth transition from
the African worlds explored in the first part of the book that are for the most
part embedded in a Civilist system, to the Indian worlds that are explored in
the second part and are set in Common Law.
African Perspectives
Alain Karsenty introduces us to the question of land
law and natural resources management in Africa by crossing the insights he
gained through fieldwork in the Maghreb, Sub-Saharan Africa and Madagascar. His
presentation highlights the necessity of interdisciplinary approaches and
points out the constraints and the methodological issues of research carried
out in this field. The difficulty consists not only in managing to think
together the different levels of analysis (for example, the individual
strategies and the collective choices that result from history and culture),
but also in getting researchers from different scientific disciplines and from
different institutional cultures to work together. The analytical categories
put forward by the different theoretical disciplines mobilized to understand
the phenomena of land use and natural resources management certainly shed light
on the different aspects of social phenomena. They can nevertheless produce
unintelligibility when they are used in an exclusive manner in order to unveil
the essence of the phenomena one seeks to understand. This is illustrated
through the phenomenon of the invention of tradition by the researcher who
does not thoroughly distinguish between the data collected through his
fieldwork and the model constructed with them. In his diachronic analysis of
the political economy of land reforms in the Ivory Coast and through his
analysis of the 1998 law on customary land rights that reshapes the regime of
rights transfers between autochthons and foreigners, Jean-Pierre Chauveau
underlines the importance of not essentializing the observed phenomena, but
taking care to re-inscribe them in their broader historical and political
context. The discourses on decentralization and participatory development that
rediscover local, indigenous knowledge, have a tendency to essentialize the
latter and to approach these realities as if they were ahistorical and not
inscribed in processes of power, domination and resistance. Jean-Pierre
Chauveaus study provides a warning to an idealist approach to governance and
sustainable development and should be kept in mind while reading other
contributions that dwell less on these aspects.
The
discovery of African situations is then continued through five contributions,
all illustrating in their own way the importance as well as the limits of
participatory management of land and natural resources. Local is lekker,
local is good, writes Renaud Lapeyre in the title of his contribution on the
establishment of a participative management of the natural preserves in Namibia.
His analysis sheds light on the role of the private sector in indigenous
development. While a more profound land reform seems unavoidable if the
Namibian state wants to efficiently promote sustainable rural development, one
witnesses today the emergence of a new paradigm and a new institutional form as
a reaction to the limits of communitarian structures: joint-venture contracts
that bind the local communities to the private sector for the valorization of
the natural assets of the territory. Although these local contracts that are
based on the securization of the local populations land rights, permit a
redistribution of touristic revenue to the rural populations, the situation
nevertheless remains unstable because this institutional structure constitutes a
source of conflicts and continues to marginalize the conservancies too much. Robinson Tchapmgni
and Christian Adonis Milol, who introduce the reader to the reality of land and
natural resources management in Cameroon from two complementary sites, shed further
light on the issues of local participation and the taking into account of the
indigenous logics and practices. Robinson Tchapmgni, a judge,
exposes the difficulties arising from the disconnection between the State land
law and the regimes of traditional property that seems to become increasingly
exacerbated. The latter, although not recognized officially, in fact constitute
a reality that is very much alive. Christian Adonis Milol draws our attention
to the realization of an ambitious programme of reforms that Cameroon has
engaged in since 1994 in its forest policy and in its policy on sustainable
management of renewable forest resources. This reform, which took the form of
the institution of genuine tools promoting participative management, the promotion
of a social forestry with the creation of a new kind of forests (the
communitarian forests) and of open spaces (communitarian hunting grounds),
gives rise to an analysis that is explicitly based between State institutions
and local communities. It reveals that the proposed mechanisms of participatory
/ community management rely, in the final analysis, on a Western
pre-established model that draws only little inspiration from the autochthonous
models, which nevertheless already function. The disillusioned populations seem
to begin to resist the practices of local governance to which they do not find
a connection. The Madagascar experience, presented by Mustapha Omrane, confirms
the vitality of non-State modes of land management. However, it also stresses
the increasing demand by the farmers for formal legal securization, which, in
order to be effective, will need to recognize the actual practices of the
actors in the field. Sigrid Aubert and Manuela Lesage conclude this series of
reflections on rural land issues with their field study in La Runion, one of
the French overseas departments. The failure of State law has given rise there
to the exploration of more participative approaches constructed around the
institution of mdiation foncire, of
land use and natural resources management mediation. This may well contain the
seed for a renewed approach to land law and natural resources management by
opening it up to a more participative management.
Nada
Auzary-Schmaltz and Jellal Abdelkafi conclude this first part with an
exploration of the Tunisian situation. Nada Auzary-Schmaltz retraces the
evolution of Tunisian land legislation that originated in the promulgation of
the land law of 1885. This exogenous law that was inscribed in the colonial
context could have been no more than a circumstantial legislation to be quickly
carried away by the tribulations of history. Nonetheless, it became the
prototype inspiring many other legislations shortly after its promulgation.
Even though adapted through a number of reforms necessitated by Tunisias
evolution it finally endured. It constitutes the basis for Tunisias
post-independence land law since 1956. Long marked by a dynamic of the
extension of agricultural land, the point in question in contemporary land issues
in Tunisia seems to increasingly become the management of urban land law.
Jellal Abdelkafi shows the interweaving of the phenomena of urbanization in the
development process, on the one hand, with the legal and institutional
construction of the Tunisian Republic, on the other hand. Human pressure and
concentration in the coastal regions have transformed spaces and societies,
sometimes radically. They have challenged traditional relationships between
those who govern and those who are governed. They have inaugurated an
exceptional tension on the double front of job creation and housing
construction. In the beginning of the twenty-first century, it appears that the
legal and institutional structure, including the registration of property and
inscription in the land register, remains unfinished and partly random. The
democratization of local institutions and the participation of city dwellers in
planning seem to be decisive elements to meet the challenges of an urbanization
that will continue intensely for at least another half century.
Perspectives from India
Echoing Jean-Pierre Chauveaus reflection, the
introductory contribution to this second part explores the political economy of
the relations between environment and development, on the one hand, and the recognition
of the rights of adivasi, or indigenous people, on the
other hand. The diachronical analysis reveals that generally speaking adivasi rights have been shaped by the priorities of development and of
environment. While there are indeed real advances, and although one cannot
deny the importance of the legal field as an significant arena of struggle
where activists can promote their agenda of the recognition of rights, this
article nevertheless notes the limits of law in a political context in which
development is the hegemonic preoccupation and in which the representations of
the environment that shape the debates are those of urbanized middle classes
and not those of the adivasi. If the recognition of
adivasi by the legal system through the recognition of
their customary rights remains an important goal, this dynamic should not hide
the issues of a larger struggle that dares to challenge the idea and the
postulates of development itself. The considerations of D. Parthasarathy
complement this analysis through a study of mining that is mainly localized in
forest areas inhabited by adivasi, or
in rural zones that depend largely on agriculture as the chief source of
livelihood. The author critically examines the issues of the securization of,
often informal, traditional artisanal mining that constitutes the basis for
survival for many adivasi and other large poor sections
of Indian society. How can the excluded participate in the benefits of
mineral exploitation and not only have to bear the burden of this activity,
manifested for example in the form of forced displacements of populations in
order to establish mines on their territories? The recognition and the
articulation of a plurality of legal and political referents seem to be
paramount. Although the move from government to governance, as promoted by
national and international development agencies in their good governance
agendas, is problematical in its ideological content, this trend nevertheless
opens up spaces that may permit increased adivasi participation in the processes of development and management of natural
resources. Lucie Dejouhanet, in a more geographic study, concludes this first
series of presentations related to adivasi
rights by studying the use and control rights of non-wood forest products of
the forests of Kerala that are mainly exploited by adivasi collectors in order to provide the Ayurvedic pharmaceutical industry with
the medicinal plants it needs. The collectors find themselves in a game of
rivalry. They adapt to it and develop parallel movements and take advantage of
breaches in a structure that is supposed to regulate them. Like many other
contributors to this publication, the author points out that, despite the
promotion of a participation discourse, the forest continues to be regulated
from outside and the collectors have only little say in the organization of
their activity. If they benefit from a right of use, and if they can harvest
plants, they must rely on institutions or bypass the authorities control by
turning to parallel markets in order to get their products out of the forest.
Today one witnesses an increasing politicization of the adivasi and a better access of the collectors to information about their rights
and about the different outlets for their production. This situation may
trigger an upsurge of civil society in the debate on the management of these
forest resources.
The
two following contributions by J. B. Rajan and T. P. Haribabu and by Ignatius
Prabhakar, though leaving the field of adivasi,
present two other facets of the participation of stakeholders in their own
development. The first starts from the formal, the second from the informal
sector. J. B. Rajan and T. P. Haribabu describe the radical reform of
decentralization in Kerala, which attributes great autonomy to the Panchayati
Raj Institutions (PRI) as far as planning and implementation of
development projects on the local level are concerned. Their analysis focuses
on maritime fisheries and on their impact on coastal ecosystems. The decentralized
Panchayati Raj management, which organizes
the autonomy of decision down to the village level, goes very far in
decentralization and in the attempt to construct a participative democracy.
Nevertheless, this architecture does not really permit of a response to local
needs, nor does it reflect the political, economic and legal processes that can
be observed on the grassroots level. Ignatius Prabhakar deepens this insight
in his exploration of illegal cultivation in water tanks that serve the purpose
of irrigation in southern India and more precisely in Tamil Nadu and
Pondicherry. Encroachment by the local populations on the water tanks, although
illegal and constituting a menace to the existence of such water reserves, is
nevertheless widespread and perceived as a legitimate offence. The multitude
of small-scale illegal practices, which are stigmatized as immoral, constitute
in their whole a practice of water tank encroachment that seems to benefit from
undeniable legitimacy as it is not really challenged by anyone. Although
privileging an anthropological approach, the author insists on the importance
of local politics, of the power games of the local stakeholders. The local
that organizes itself as a semi-autonomous social field[24] in relation
to the official institutions, is far from being homogeneous.[25]
It rather constitutes an arena where multiple actors and strategies are
struggling.[26]
The creation of water tank user associations that is now promoted by the
government and by non-governmental organizations as part of the good
governance and participatory development agendas, makes the situation even
more complex. The transfer of the management and maintenance of the water tanks
from the government to the associations is indeed inscribed in an ideology that
perceives the local as a vacuum to be filled and that negates the existence of
already existing structures and management practices.
Philippe
Cullet invites us to a change of scale. He studies the reforms of the Indian
water sector on a national level. Although the necessity of these reforms has
become evident over the last three decades, they are all based on a limited
number of principles that are considered to provide THE solution for all
developing countries. They are centered on the idea that water should be
considered mainly as an economic good, thus evacuating its social dimensions.
The discourse on participation and giving responsibility to the actors linked
to these reforms thus loses its credibility. The creation of user associations that
are intended to increase the control by direct users of irrigation water and
thus to realize the ideals of decentralization and of participation, in fact
does not at all increase their effective control over water. Participation
rather imposes on them responsibility for the local management of development
projects and thus legitimates the transfer of financial responsibilities from
the government to the farmers. Although current reforms are significant and do
re-define the legal framework of water law for the coming decades, they are
nevertheless inadequate because they neither sufficiently recognize the
fundamental human right to water nor the other social dimensions of water.
V.
Balaji concludes this second part by considering the issue of sustainable
development in India, which needs to reconcile economic growth with the
preservation of the environment and the consideration of its social dimensions
with recent developments in human rights. As the actual enjoyment of human
rights requires a viable environment, human rights can trigger an increased
sensitivity to environmental issues. After recalling the international context,
the author presents recent evolutions of Indian law in which the Supreme Court
plays an important role. Environmental case law developed around the
recognition of a right to drinking water, to an unpolluted atmosphere, to a
healthy environment, etc. This case law is founded on an extensive
interpretation of Article 21 of the Indian Constitution by the Indian Supreme
Court. According to it, the fundamental right to life recognized in this
article comprises the right to an environment permitting a healthy life. In
India, environmental laws regulating forests, fisheries and water bodies, which
have a considerable impact on the livelihood of many communities, are thus
increasingly coupled to a human rights approach.
Conclusions and Openings to New Horizons
The contributions to this publication highlight the
diversity of situations and the complexity of the issue of land law and natural
resources management. The complexity is further increased today as
environmental preoccupations enter the picture. They underline the need to get
rid of ideological blinkers, be they neo-liberal or others, in order to be able
to take into account the concrete constraints and the potentials that need to
be articulated.
Two
issues that have been dealt with in this collective research seem particularly
relevant. They benefit from the present context that is conducive to their
development (at least on a discursive level) and go beyond the land law and
natural resources management issue strictly speaking. They are participation
and the closely related issue of translation and dialogue.
Numerous
contributions have underlined the emancipatory potential, but also the
constraints, limits and even perverse effects of participatory approaches. The
ideology of participation as promoted by the agendas of good governance and
sustainable development opens a desired window offering a perspective of local
realities, be it for the preservation of the environment or the survival of
the local populations. It points to the complexity of situations that cannot be
summed up by the visions of development and governance experts who are carriers
of national and international institutional logics. Indeed, the pure local
does not exist any more than a pure national or global. The different scales
and the different networks of actors are intermingled at each level. This
complexity is often ignored in top-down approaches that characterize most
political, legal and economic action and that is further embedded in a very
sectoral approach.[27]
Nevertheless, while a deeper understanding of the issues of participation is
highly necessary, one should be careful that the incantatory repetition of the
mantra of participation does not render inaudible the diversity of logics and
points of views. As Jean-Pierre Olivier de Sardan (1995: 189) reminds us in
relation to the misunderstandings in the dialogue between social scientists and
development operators, and more precisely propos the notion of field research necessary for taking local realities into
account, this cannot be reduced simply to an open-minded attitude and an ethic
of openness on the part of the developers. The statement that one is sensitive
to the grassroots does not necessarily imply that one really is, if one does
not take the necessary measures and if one does not accept to integrate the
grassroots teachings in ones actions. To tackle the complexity of the issues
of land law and natural resources management in given settings demands a
rigorous research coupled to a dialogical attitude allowing the researcher to
become aware of the diversity and the originality of the relevant world
visions, logics, practices, strategies and stakes. This awareness must then be
translated in order to be accessible to institutional actors of governance and
of sustainable development. To promote participation entails making certain
that it is not reduced to a simple hierarchical delegation of responsibilities
from the developers to the developed where there is no place for the
developed in the elaboration of the project itself.[28] It also
entails creating and designing spaces of dialogue that stand up to the
requirements of hybrid forums, which are the conditions of real participation
and in which the questions of translation are central (see Callon, Lascoumes,
Barthe 2001: 209ff.).
To
walk the paths of dialogue is inherent to any approach that genuinely tends to
be participative. It gradually opens up our awareness to the horizon of a
pluralism of worldviews that may be far deeper than what is suggested in this
book.[29]
Although shedding critical light on the question of land use, natural resources
management and the environment, and although revealing a number of important
issues, this collective research did not free itself from the point of view
informed by the dominant vocabulary and grammar of social and human sciences,
of politics and law. This was not its objective, but the dynamic has
nevertheless contributed to sharpening our sensitivity to alterity and has
demonstrated that a dialogue between different disciplines and between
different cultures was possible and could go beyond the mere juxtaposition of
discourses, to which the many instances of mutual enrichment and
cross-fertilization that can be observed in the contributions testify.
I hope
that beyond the deepening of our understanding of the field of land use,
natural resources management and the environment, this publication, by promoting
a South / South dialogue, even though the crossing of African and Indian
perspectives was not only due to African and Indian but also to Africanist and
Indianist researchers, will contribute to a decentring of our perspectives on
governance and sustainable development, which remain largely dominated by the
perspectives of the North. This decentering may allow us to rethink our
questions in order to map out new possibilities for a life that respects man
and his environment.[30]
As
this publication is the result of a collective work dynamic that was hosted in
India in 2006, it seems appropriate to conclude this introduction with an
Indian interpellation by Rajni Kothari (1990: 49-50, 63-64 ), one of Indias
important political scientists of the last century:
Increasingly,
such a quest for alternative systems of thought and being is making
intellectuals turn to non-Western cultures known for long-standing humanist
traditions and for integrated perspectives on the human condition. What is the
role of the Third World in such a quest? () It would be a real tragedy if
cultures strong in speculative thought and deductive logic were to fall prey to
the lure of positivist science, imported from the West at a time when the world
was in fact crying out for new worldviews and meaning and value systems. ()
First, modernity is not something that can be wished away. Both as a doctrine
of life and a guide to prudence, and as a framework for attending to the
affairs of society, it has shaped our world in a fundamental manner, so
fundamental, indeed, that we so often call it the modern world. Modernity is
not just Western or Occidental; it is part of us all. () Secondly, it is
incumbent upon us all in the West and in other regions to relate this
presently dominant tradition to other civilisational traditions and meaning
systems, and to evolve a process of critical interaction between them. ()
To the
western mind, science, like all knowledge, is an instrument of secular power
for creating a good social order. We must reject this as
at once inadequate and dangerous. It is dangerous because power as the end of
knowledge usually degenerates into power of the few over the many. It is
inadequate because creation of a good social order can be no more than a means,
the end being the liberation and self-realisation of each being. We come here
to the Oriental conception of knowledge as a means of seeking truth which, in
turn, is a means of liberating the self. (In Oriental thought truth is not an
end in itself.) This harmonises perfectly with the conceptions of diversity and
decentralisation. But Gandhis basic principle must be borne in mind, namely,
that such liberation is to be of all individuals, not only of the educated and
the better-off. Such a conception rejects the dualism inherent in the Western
paradigm and seeks the ends of individuals as well as of society in a composite
philosophy of nature. With this also, incidentally, the discord between
development and ecology disappears.
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