Legal Pluralism. Security of Tenure

Legal Pluralism. Property law is often seen as an instrument for encouraging stewardship or discouraging degradative land- use practices. When such law is being considered, it is worth examining whether state property law is what matters in a particular locality.

The field of legal pluralism offers insight in this regard. In contrast to statecentrist approaches, which hold that the state is the sole source of law, legal pluralism recognizes that two or more legal systems (ranging from the customary or traditional law codified and recognized by colonial regimes to religious law to law created and enforced by smaller social groups) may coexist in the same social field.

Although the idea of nonstate legal regimes (legal regimes that are not based on legislation or judicial decisions by the state) is generally accepted by most legal scholars, they differ on the boundaries of what counts as "law." An emerging focus on the recognition of more than one kind of law in a group's social practices may resolve this issue.

The analytical importance of legal pluralism is clear in the myriad struggles between local people and the state over the use of state- owned forest and parkland. Under national statutory law, national forests and national parks clearly are the property of the state.

However, in both industrialized and nonindustrialized nations, local people claim and exercise usufructuary rights based on customary law to collect firewood, cut poles, graze cattle, hunt, gather food and medicines, and farm on national forest and park land. Analysts who wish to understand property in practice, will, in such a situation, direct their attention not just to national statutes but to local customary law as well.

Security of Tenure. It is often taken as given that physical and financial investments in land improvement and/or environmental stewardship depend on secure land tenure (property rights that ensure that the land manager is confident of reaping the returns from investment) under which the land manager is confident of reaping the returns from investment.

For some time, enthusiasm for security of land tenure translated into enthusiasm for land registration and privatization. Evidence that such policies did not necessarily have the desired beneficial effects led to a reexamination of what actually constitutes security of tenure and for whom.

One approach to security of tenure considers three elements: (1) breadth: the composition of rights (such as the right to sell, the right to use, the right to destroy, and so on), (2) duration: the length of time a right is legally valid, and (3) assurance: the certainty with which a right is held and with which it reflects the predictability and enforcement ability of the tenuregranting regime.

Another approach separates the right of ownership from the owner's actual ability to control her or his property. These analytical approaches have made it clear that private property and security of tenure are not synonymous.