Law, Property and Disasters

Adaptive Perspectives from the Global South

Daniel Fitzpatrick, Caroline Compton

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9781032008141
• eBook ISBN: 9781000391800
• Edition: 1
• Topic: Business
• Subtopic: Environmental Law
• Index: Business

This book re-considers property law for a future of environmental disruption.

As slogans such as "build the wall" or "stop the boats" affect public policy, there are counter-questions as to whether positivist or statist notions of property are fit for purpose in a time of human mobility and environmental disruption. State-centric property laws construct legal fictions of sovereign control over land, notwithstanding the persistent reality of informal settlements in many parts of the Global South. In a world affected by catastrophic disasters, this book develops a vision of adaptive governance for property in land based on a critical re-assessment of state-centric property law.

This book will appeal to a broad readership with interests in legal theory, property law, adaptive governance, international development, refugee studies, postcolonial studies, and natural disasters.

1 Land law and the state

New contexts of human mobility

Introduction

The 21st century poses new challenges for property law as a result of mass movements of people. There were an estimated 79.5 million internally displaced persons and refugees across the world in 2019.¹ There is a global crisis of tenure insecurity where as many as a billion urban migrants live in informal settlements.² Contemporary formulations of property now seem part of a problem of inequality, as states construct claims of territoriality, and exclusive authority over grant of freehold property, in such a way as to deny the proprietary claims of vast numbers of displaced or migrant households. Even when settlements become permanent, those displaced to the land of another are at risk of labels of informality or illegality. Even where individuals are long-term residents, those who cross borders without authority are at risk of labels as illegal or undocumented aliens. As slogans such as “build the wall” or “stop the boats” affect public policy, there are counter-questions as to whether positivist or statist notions of property are fit for purpose in a time of human mobility.

Positivist or statist constructions of property law situate the state at the apex of a hierarchical system of proprietary rights to land. While transnationality is now a feature of many areas of law,³ the legal regulation of land maintains baseline links with principles of sovereign authority over territory and property. These principles include contemporary legal baselines that land ownership derives from or through sovereign grant; that “waste land” or land without an owner belongs to the state; and that prescribed written instruments are necessary to transfer proprietary rights to land. The global spread of title by registration law further reduces the proprietary significance of acts such as possession or use, leading to a slow erosion of doctrines of adverse possession or acquisitive prescription, and a strengthening of rules favoring registered over unregistered interests.⁴ As a result, property law in much of the world is highly formalist in ways which exclude large numbers of poor and displaced claimants of rights to land. Because statist property rules tend to tie property to the administrative reach of the state, there is an inherent potential for labels of illegality or extralegality to apply to those unable to afford titles from the state, or to those who live in proprietary orders beyond the margins of centralized state control.

1 United Nations High Commissioner for Refugees, Figures at a Glance (2019 statistics, United Nations High Commissioner for Refugees) https:/​/​www.unhcr.org/​figures-at-a-glance.html.

2 See UN-HABITAT, State of the World's Cities 2012–2013: Prosperity of Cities 151 (2013). See also Roy L. Prosterman, Robert Mitchell and Tim Hanstad, One Billion Rising: Law, Land and the Alleviation of Global Poverty 2 (2009).

3 See, e.g., Joseph A Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World 6 (1992).

4 Daniel Fitzpatrick, Fragmented Property Systems, 38(1) U Pa J Int Law 156 (2016).

Hundreds of millions of people now living in hazard-prone settlements are vulnerable to marginalization as a result of statist constructions of property law. In the Global South, in particular, many of those who live in hazard-prone locations are classified as illegal or informal holders of land notwithstanding long-term acts of possession and use.⁵ These types of landholders are vulnerable to exclusion from shelter and livelihood assistance in circumstances of displacement because they lack rights or documentation in the eyes of the state. Some are subject to eviction on the basis of illegal occupation, or lack of proof of identity, or termination of undocumented tenancy arrangements. Those who are displaced often develop unauthorized settlements on land owned by others, including the state, or return to informal settlements because they cannot afford houses and services in sites for relocation.⁶ In all cases, statist property laws display a baseline preference for bright-line rules of exclusion, vested in freehold owners, which are justified by reference to utilitarian notions of net certainty and simplicity of information. Yet, there is no certainty or simplicity for people who are not capable of obtaining lawful ownership rights from the state, or who are displaced through pathways that lie outside the purview or reach of the state.

In a world affected by environmental disruption, this book provides a reassessment of property law in circumstances of human mobility. In the first instance, the book argues that the conceptual linking of property, territory, and sovereignty is ill-suited to an era of informal settlements, mass migration, and population displacement. The analysis revisits the contingent historical circumstances that linked property, territory, and sovereignty. It highlights the mythologies of state control over land which lead government and nongovernment actors to “see like a state” in relation to property and human mobility.⁷ It then identifies the risks of international legal frameworks which also assume a capable state, or a state made capable through technical assistance, in order to achieve aims such as disaster risk reduction or security of land tenure. This aspect of the book has a critical orientation – how the conceptual entanglement of property, territory, and sovereignty fails to protect vast numbers of migrants and displaced people who live in informal settlements, who are vulnerable to enhanced threats of natural disasters, and who adapt to disasters through mechanisms outside the control of the state.

5 See, e.g., Brent Doberstein and Heather Stager, Towards Guidelines for Post-Disaster Vulnerability Reduction in Informal Settlements, 37 Disasters 28 (2013).

6 UN-HABITAT, Land and Natural Disasters: Guidance For Practitioners 82–84 (2010).

7 This proposition links positivist principles of land law to the state-centric perspectives identified by James Scott. See James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed 11–52 (1998).

Ontologies of property

The analysis seeks to show that the entanglement of property with the state – through the development of statist land law – constructs a mythology of apex state control that is not necessarily reflective of heterogeneous proprietary reality. The concern, therefore, is the mythology of modernist Weberian states in relation to property, and the arguments are not intended to deny ethnographic literature on property and the actuality of state practice.⁸ This ethnographic literature includes micro-studies of state formation as local officials accrue resources and legitimacy through the resolution of land disputes and co-opt the symbolism and legitimacy of localized forms of ordering to support their own authority.⁹ Although the analysis draws on studies in legal pluralism of this kind, the primary aim is not to study the co-constitutive negotiation of property and the state in local contexts, but to critique the historically contingent co-option of property law to construct or project assertions of sovereign territorial order.

The aims of the book include opening up theoretical space to reconsider property law from an unusual perspective – not the encouragement of certainty and security but the management of catastrophic disruption and mass movements of people. In his influential work on property transformations in post-apartheid South Africa, Andre van der Walt argues that the “rights paradigm” of property law privileges certainty and security in ways that tend to reify the legitimacy of existing rights irrespective of historical contingency.¹⁰ The logic and rhetoric of property generate hard-wired assumptions that extant rights are not only legal but also morally and politically legitimate.¹¹ These assumptions create embedded forms of institutional resistance to the possibility of transforming property after racialized historical injustice. In a similar manner, this book argues that statist property laws generate ontological frames for property that are resistant to the transformative demands of escalating environmental disruption. These ontological frames assume that sovereign-centric property law generates certainty and security notwithstanding the prevalence and persistence of informal settlements in many parts of the Global South. Consistent with progressive approaches to property, this book seeks to decenter dominant ontologies of state-centric property for a climate-affected future of environmental disruption and mass human mobility.¹²

8 S E Merry, Legal Pluralism, 22 Law & Soc Rev 869, 869 (1988); Keebet von Benda-Beckmann, Forum Shopping and Shopping Forums, Dispute processing in a Minangkabau Village in North Sumatra, 19 J of Legal Pluralism 117; S Berry, No Condition Is Permanent: The Social Dynamics of Agrarian Change in Sub-Saharan Africa 104 (1993).

9 Christian Lund, Local Politics and the Dynamics of Property in Africa (2008); Sally Engle Merry, Law and Colonialism 25 Law & Soc Rev 897, 918 (1991); Christian Lund, Negotiating Property in Africa, in Negotiating Property in Africa 14 (Kristine Juul and Christian Lund eds, 2002).

10 Andre van der Walt, Property in the Margins 13–15 (Hart Publishing, 2009).

11 Id 17–19.

12 See, e.g., Sarah Keenan, Subversive Property: Law and the Production of Spaces of Belonging (Milton Park: Routledge, 2015); Irene Watson, Aboriginal Peoples, Colonialism and International Law (2014).

Our case studies of catastrophic disasters are intended as illustrative of a broader critique – that current state-centric conceptions of property law are not fit for purpose in an age of human mobility. As a result, the book is not a normative guide to land policy after natural disasters, or a manual on disaster risk reduction through property law reform. While the analysis derives lessons for disaster policy, the focus is on the implications of disasters for property law generally rather than the role of property law in the management of disasters. The focus on disaster allows the analysis to consider the provenance and mythology of statist property law from a “world history” perspective which emphasizes the role of European colonization. This aspect of the book links property law to ontologies of governmentality that emerged from colonization, including European attempts to reorder settlements as a means of territorial control.¹³ These ontologies of governmentality include constructions or projections of an idealized state with the capacity to identify, classify, record, and regulate human relationships with land.¹⁴ Yet, our analysis identifies widespread circumstances where postcolonial governments lack the capacity to meet idealized projections of administrative state control over property in land.¹⁵

13 See Richard T Ford, Law's Territory: A History of Jurisdiction, 97 Mich L Rev 843, 843, 873 (1999); James Ferguson & Akhil Gupta, Spatializing States: Toward an Ethnography of Neoliberal Governmentality, 29; Am Ethnologist 981, 981–982 (2002); David Scott, Colonial Governmentality, 43 Soc Text 191 (1995).

14 See generally Mitchell Dean, Governmentality: Power and Rule in Modern Society (Los Angeles: Sage, 1999), 98–112.

15 Patrick McAuslan, Bringing the Law Back In: Essays in Land, Law, and Development 59–83 (2003); Sally F Moore, Changing African Land Tenure: Reflections on the Incapacities of the State, 10(2) Eur J of Dev Research 33 (1998).

As a matter of terminology, this book refers to statist or state-centric law rather than positivist law in order to avoid confusion with theoretical debates on legal positivism. Statist property law is described in terms of rules which connect territorial sovereigns and property in land, particularly in relation to (1) doctrines of sovereign rights to land, (2) restrictions on possession or custom as a source of title, and (3) the formalities of title or transaction registration systems. Although there are different formulations and combinations of statist property law, a common thread is the centrality of the state to contemporary systems of property creation, transfer, and regulation. These property systems are not only positivist in the sense that they privilege the commands of a sovereign, but they are statist in terms of entanglement in the nature, history, and self-mythologization of individual nation-states. For this reason, a focus on state-centric property law necessarily requires a historical understanding of property law formation in particular states, including the co-option of property law to extend the territorial authority of European sovereigns in colonial contexts. These historical matters are discussed further in Chapter 2.

We are conscious of arguments that “the state” is but a collection of individuals – each of whom responds to incentives established by political rules of interaction.¹⁶ These arguments would locate our critique of statist property law in the domain of public choice theory, and involve path-dependent explanations for the denial of property to large numbers of claimants in postcolonial jurisdictions.¹⁷ We consider these arguments further in Chapter 3. For the present, we note that our concern is with the idea of the state or, more precisely, the projection of territorial sovereignty that manifests in state-centric property law. This is an ontological critique that bears similarity to Robert Ellickson's critique of legal centralism in his seminal works on order without law.¹⁸ As noted, the idea of the state as a collective entity that controls property manifests in rules that require sovereign grant, or compliance with prescribed instruments, in order to establish legal proprietary interests in land. While the provenance of these rules has a public choice basis, we suggest a further need to explain widespread noncompliance with state-centric rules, and ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgements
• 1 Land law and the state: New contexts of human mobility
• 2 Property and sovereignty: A postcolonial perspective
• 3 Polycentric property systems
• 4 Property law and disaster vulnerability: The case of Typhoon Haiyan
• 5 Land and the lens of the state: Law, rights, and disaster risk reduction
• 6 Land titling after the Indian Ocean tsunami disaster
• 7 Community mapping: Adjusting property after the tsunami
• 8 Toward adaptive property law
• Index