Land Law and Disputes in Asia

In Search of an Alternative for Development

Yuka Kaneko, Narufumi Kadomatsu, Brian Z. Tamanaha, Brian Z. Tamanaha, Narufumi Kadomatsu, Yuka Kaneko

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000435733
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Asian Politics
• Index: Politics & International Relations

Through an in-depth legal analysis by leading scholars, this book searches for the exact legal causes of land-related disputes in Asia within the histories, legal systems and social realities of the respective countries. It consists of four main parts: examining the relationship between law and development; land-taking in developmental stages; common ownership; and proposals for new approaches to land law and dispute resolution. With a combination of orthodox legal interpretations and the empirical approach of legal sociology, the contributors undertake an extensive comparative legal analysis across common and civil law traditions. Most importantly, they propose pathways forward for legal transformations in the pursuit of sustainable development in Asia.

This book is vital contribution to the study of comparative law, and especially property law, in East and Southeast Asia.

Part I
Model conflict in land law and civil code drafting

1
Origin of land disputes

Reviving colonial apparatus in land law reforms

Yuka Kaneko

DOI: 10.4324/9781003170600-2

1 Introduction

Since the Asian economic crisis broke out in 1997, Asian countries have been increasingly bound by the policy dialogues led by the international development agencies such as the World Bank and the International Monetary Fund in the formulation of long-term socioeconomic development plans and in all aspects of their implementation. Legal and judicial reform has also been in this context. Its policy path is guided by the neo-institutional economics addressing the modification, instead of the abrogation, of the structural adjustment policy that was the target of criticisms in the beginning of the post- cold war period, due to its failure to solve the accumulated debts problem during the 1980s, in a good contrast to the successful economic results in Japan and other Asian countries that chose an interventionist approach referred to as the “East Asian miracle” or neo-structuralism during the same period.¹ With the slogan of “good governance” and “rule of law,”² the neo-institutional economics attributed the failure of the structural adjustment programs to the lack of institutional capacities in the recipient countries to fill the information asymmetry, without changing the other elements of the structural adjustment prescriptions. The result was the legal instrumentalism that reforms the law as a means of development. Even the prominent keynote speech by Amartya Sen titled “What is the Role of Legal and Judicial Reform in the Development Process?” presented at the World Bank Global Conference on Comprehensive Law and Judicial Development in 2000 was its endorsement.³ Despite the enormous endeavors of redefining of the goal of “development” in the contexts of human development, poverty alleviation and sustainable growth pursued since the 1990s up to the present, the legal and judicial reform agenda has remained unchanged according to the Washington Consensus.⁴

The Asian economic crisis triggered a first case of the sovereign legislative power surrendered to the contract terms of the structural adjustment loans. In addition to the corporate finance, the land law was another target in such conditionalities. Land titling designed for the so-called Torrens-style registration system is, for example, the biggest focus of the donor-led land law reforms across Asia today. As emphasized by Hernando de Soto,⁵ formalization of property rights has been considered one of the main pillars of the legal reform agenda that invigorates the land market via land titling. Originally a British colonial creation completed in the South Australia (Torrens 1882), the Torrens-style registration system was a mighty institutional device to mobilize land as a commodity by separating the abstract title from the actual land use, by endorsing the governmental authority to finalize a title while excluding the future judicial contest. This system was often implemented in conjunction with the wasteland management method that nationalizes untitled land for the use of concession. During the colonial era, this British colonial device was also utilized in the colonies of civil law countries.⁶ Even in Japan, which escaped colonial rule, the issuance of land titles (chi-ken) through the initial land tax reform (chiso-kaisei) implemented in the earliest stage of its Westernization during the 1870s was nothing other than a Torrens-style title registration system.⁷ In Thailand too, the Chakri dynasty, which intended to operate large-scale plantation for export, implemented the 1901 Land Title Deed Act,⁸ which was succeeded by the 1934 Civil and Commercial Code that made the Torrens-style title registration a requirement for validity of ownership.

After the colonies gained independence, more than a few countries abolished the Torrens-style title registration system and switched to a land record system that served as no more than a public notification function, as seen in the following discussion of Indonesia and Myanmar, the same as Japan. It must also be noted that most developed countries in Europe as well as the United States do not adopt a Torrens-style title registration system. In the U.S., it is implemented in only 12 of the 50 states, only as a voluntary system. Even in the United Kingdom, the Land Registration Act 1925 was implemented as a voluntary system of public notice, and even under the Land Registration Act 2002, exceptional overriding interests are still permitted without notice, which is inverse to what they introduced in Asia for the redemption of existing interests.

Today, the donors’ land law reform agenda has guided many Asian countries to repeal the postindependence sui generis laws that attempted to overcome the colonial land law that separated the abstract title and actual use. Even though the Asian economic crisis was a result of a bust of speculative land market that triggered the sudden selling of Thai baht, and it could have been an opportunity toward a reregulation to prevent the recurrence of bubble and busts, the prescription provided by the development agencies was the opposite, oriented toward the deregulation for further vitalization of the land market.⁹ The 2008 global financial crisis sounded another warning about this direction of legal reforms. However, the same agenda of neo-intuitionalist legal reforms have remained, and even accelerated in Asia and Africa, highlighting the relaxation of restrictions on land sales and mortgages by foreign capital, to follow the simultaneous land titling, and the promotion of wasteland grants of untitled land for foreign investments.¹⁰

A hypothetical view of the author is that the contemporary land law reform led by the donor agencies is a revival of the design features of colonial law. The modern capitalist law that had started a pursuit of the ideal of human dignity in the early 19th century was in some later stage swapped out to a pursuit of maximization of wealth, which probably occurred somewhere in the process of the formation of colonial law, and then reimported to the home countries.¹¹ A main feature was a series of state apparatus of lawful exploitation of land from actual users and passing it to higher economic value. Today, numerous land grabbing cases are tormenting the peasants around the world, and various attempts to establish the international law for their protection have resulted in nonbinding campaigns. If the contemporary land grabbing is a result of the very design of the land law reform guided by the donor agencies, and if such design is no other than the colonial model for land deprivation, it is something we can overcome by learning from the historical lessons as well as exploring the social norms asserted in the forefront of legal disputes.

Asian law scholars are entrusted to seek an alternative land law to catch up with the global trend of redefining the “development” by getting rid of the century-old model for the land mobilization as speculative commodity. It might also be an attempt to rediscover the goal once sought by the postindependence sui generis land laws in this region. This chapter intends to induce hints toward an alternative of legal reform to the donor-guided land law reforms through a quick comparative sketch. After presenting a methodological frame guided by previous studies (Section 2), the author first attempts to articulate the legal nature of the “Asian” property rights that were envisaged in the postindependence sui generis laws (Section 3); next, the common legal issues of contemporary land grabbing disputes will be investigated through a focus on the gaps between the formal apparatus of land law and the social norms asserted (Section 4); then, we will trace the changing policy ideologies in a historical axis of land law reforms (Section 5).

2 Implications from previous studies

Land law is a diverse sphere of law and necessitates the knowledge of comparative land law across jurisdictions. Comparativists have presumed a dichotomy of common law and civil law, aiming to categorize the laws of the rest of the world into either of the two. Merryman (1974) was a work among influential American comparativists who draw the common law scholars’ attentions to the “ownership” concept in continental law, but he overly emphasized the absolute nature of such concept, though in the reality its modification started soon in the historical path following the initial codification. Van Erp (2008) seeks a more accurate introduction of the continental property law by focusing upon the common principles such as the separation of real rights and personal rights (summa divisio), the binding and exclusive effect of real rights upon third parties (erga omnes), and the closed list of real rights (numerus clausus) and its historical loosening, and the formalism in the alienation of properties. While facilitating a pragmatic comparison, however, it does not detail the policy reasons why these principles were extremely strengthened in the late 19th-century codification but then required significant modifications in the 20th century. On the other hand, Zimmermann, Visser, and Reid (2004) examined land law in Scotland and South Africa, where elements of both civil law and common law were mixed in a single country’s law, but their consideration are not extended to Asian or African countries beyond the interests of “legal transplants and legal culture” where the laws of former colonized countries have been categorized according to the maps of the former suzerain countries.¹² Therefore, the essence of Asian colonial law, which converges elements of civil law and common law into what could be called an extreme capitalist law, has not been the subject of study in the mainstream of comparative law.¹³

Positioned at the opposite pole is the contribution to land law research from the viewpoint of legal anthropology. Benda-Beckmann, Benda-Beckmann and Wiber (2008) elaborated a methodology for redefining property rights that can encompass the diversity of rights, rooted in empirical observations of Asian and African societies. They criticize the instrumental use of simplified property right concepts by development economists since Demsetz (1967), and rather, consider the property rights as a dynamic relationship between property and social entities.¹⁴ They propose a methodological framework to overcome the mistakes of development economics by reclassifying the diverse and layered nature of such relationships¹⁵: First, to start with an accurate comprehension of the static dogmatic designs of the formal property law, rather than simply arranging them as a “bundle of rights,” they encouraged subdivisions of elements of each property right focusing on the subjects of property relation, the property objects and the substance of rights and obligations. Second, they intend to identify the dynamics of “concretized social relationships” when such formal legal systems are brought into real society by way of empirical observations of land disputes and their resolution processes. Third, they deciphered the ideology of the overall system.

This chapter, too, will strive to understand the substantive nature of Asian land laws from the viewpoint of dynamic relationships between land and social entities, as suggested by Benda-Beckmann et al. However, the following points are to be supplemented when implementing their methodology. First, there is a concern that, though a number of studies conducted on land conflict with a keen attention upon the specific contexts,¹⁶ they tend to move into the second-stage description of the dynamic problems without necessarily gaining an accurate grasp of the characteristics of the substantive law in the first stage. The first step is to solidify the dogmatic design of property law, so that the understanding of the dynamics of the second step will become clearer.

Second, attention should also be paid to a historical background behind the current dynamics. Tracing the history of the static designs of formal law with political ideology behind them may help to refine the third-stage ideological studies. In this sense, Hooker (1986) was a monumental work in the historical Asian law study that cast a view to the process of elimination of pre-modern formal laws through the penetration of colonial law in the Southeast Asia, but it remained sile...