Stacked law : land, property and conflict in Honduras

Research output: Thesisinternal PhD, WU

Abstract

<FONT FACE="Garamond" SIZE=4><p>Property conflicts have an enormous impact on relations between the members of farm households and their families. Given the long duration, frequency and intensity of these conflicts an investigation of how they arise and how they affect the daily lives of, and relationships between, landholders is certainly warranted. Conflicts over land visibly manifest themselves in destroyed fences, stolen crops, poisoned dogs, horses that are set free, bloody machetazos, hails of stones between children and murder. But there are also less visible symptoms of potential conflicts over property. Inside the walls of the farm household, hidden from public view, people discuss the consequences of migration or education on inheritance rights; they mull over the advantages and disadvantages of a land sale; they argue about the division of labour and they silently develop strategies to control income or products. These discussions and strategies generate and express conflicting views on how property rights should be distributed and who is entitled to obtain a particular right to property.</p><p> Through detailed studies of land conflicts in the Santa Bárbara district, the ambiguities of the legal framework, and practices in the court of justice, this book explores the question: What is it about law and norms that enables them to generate conflicts about property rights to land? Land rights do not by definition consist of legally recognised full ownership, hence instead, we research <em>who</em> claims to have <em>what</em> right to the land. The book is an effort to test the usefulness of the notion of 'stacked laws and norms' for a better understanding of the constellation of land rights and the emergence of conflicts.</p><p> Law experts and policymakers in Honduras tend to start from a 'law is reality' point of view, i.e. the goals of the law are achieved in practice by implementing the law. Starting from this perspective means that they find it difficult to deal with the unintended outcomes of the law, which they usually attribute to the law not being enforced, people having the wrong mentality or old-fashioned, customary practices. In the eyes of law experts and policymakers, property rights to land are an apparent 'disorder', a 'disorder' that plays an important role in the emergence of conflicts that has to be solved by implementing new laws.</p><p> I used the notion of stacked laws and norms to visualise the processes that create the apparent 'disorder' of land rights. This book has described three processes of law and norms stacking in property rights arrangements: in state law, in practices of land rights transfer from the state to landholders, and in inheritance practices. Firstly, state law stipulations regarding land rights are not consistent or coherent, and its meaning confuses landholders, but also lawyers, judges, and policymakers. Agrarian laws have continuously been changed, replaced, amended and re-amended, which creates ambiguity in their message and makes it unlikely that the meaning and practical implications of these changes have been clearly passed on to the involved people and agencies. Moreover, the relationship between Civil Code and agrarian law notions of property is ambiguous. Agrarian law stipulations incorporate Civil Code constructions as possession, occupation or adverse acquisition. There is no unanimous stand among law experts and policymakers about the validity of Civil Code property notions versus agrarian law stipulations in Honduras.</p><p> The process of stacking in state law becomes more clear by looking at practices of land rights transfer practices between the state and landholders in the village of El Zapote. The actual laws and legal articles are only one side of state regulation; the other side is that state agencies and officials interpret the law and create implementation rules during state interventions. Hence, metaphorically speaking, on top of the stacked legal regulations, they stack their own interpretations of the rules, which are adapted to the specific situation. Landholders, on the other side of the spectrum, interpret and adapt the parts of the law that they know or come in touch with, and they add their own norms to it as well. The different norms in the complex of stacked norms and laws do not completely merge and they do not become clearly demarcated hybrids. The renewed complexes of norms consist of the different elements that have been added in time and that can be distinguished and used by the involved landholders, national state agents and the municipality, or that may also be forgotten and disappear in the end. It is thus not a static situation; the process of stacking is continuous and will change the constellation of the complex.</p><p> With regard to inheritance, the book shows that people are actively involved in making, changing and adding new norms through their dialogues and endeavours, while striving for certain goals at certain moments. The result is a complex of stacked norms, different elements of which the actors in inheritance practices (landholding parents</font><FONT FACE="Garamond" SIZE=2>and</font><FONT FACE="Garamond" SIZE=4>their offspring) use in their strategies to obtain what they want. They are aware of the existence of different norms and they seek to legitimise the norm that best suits their own aims. The whole process of stacking inheritance norms contrasts with stacking in reference to land rights, in which people do not deliberately try to develop new norms.</p><p> By using the notion of stacked laws and norms for describing norms about property and the land rights derived from it, I am able to describe the historical changes of these norms better. By deconstructing the empirical process of the stacking of norms as regard property rights to land, it has become clear that land rights arrangements are not 'customary', referring to a separate legal system that has developed in opposition to, and disconnected from, state law. It has taught us that landholders' notions of property coincide with civil code concepts of ownership and possession and that the rights that others consider as local or customary are derivatives of old Civil Code property concepts.</p><p> 'Stacking' in this book is not just a notion to explore an empirical situation of disorder. Its main value as an analytical concept is that it clarifies how 'plurality' of norms come into being, as well as the structure of this plurality and the elements it consists of. In the complex of laws and norms, divergent legal concepts and interpretations and re-interpretations of these concepts are assembled and serve as a basis for rights and claims to land, whereby in time, new elements and interpretations are continuously added to the complex while other elements disappear from it. Sometimes one element is more important, and sometimes another. Furthermore, the notion of 'stacking' makes clear that the constellation of norms surrounding land rights is constantly changing; it is a never-ending process. This process does not create a disordered pluralism, an untidy and random heap of norms without any sense or logic, but it leads to a certain stacked structure in which the separate elements have not merged into a kind of fluid constellation. Its stacked character implies that social actors may be able to recognise the different elements and to use them for their own purposes. They distinguish between different elements and exchange them, reinterpret them or discard them.</p><p> State interventions in El Zapote have affected landholders' ability to maintain the idea that local property concepts are 'law'. Landholders have learnt from the clashes between their own norms and those of the state that the force of their own stacked constellation of property norms is limited. Although legitimate in their eyes, their own norms lacked validity vis-à-vis the state. The difference in how the state and landholders define property rights has distorted their relationship. The state itself, as the institution that defines and protects private property through its laws and legal system, has become an actor in land conflicts. Civil Code property notions are losing strength; the legitimacy of local property concepts has been seriously undermined and landholders have thus become even more insecure about their property rights.
Original languageEnglish
QualificationDoctor of Philosophy
Awarding Institution
  • Wageningen University
Supervisors/Advisors
  • von Benda-Beckmann, F., Promotor
Award date12 Feb 2002
Place of PublicationAmsterdam
Publisher
Print ISBNs9789051705829
Publication statusPublished - 2002

Keywords

  • agricultural law
  • farm families
  • women
  • gender relations
  • conflict
  • inheritance of property
  • customary law
  • honduras
  • property rights
  • land rights
  • judicial organization

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