“Land Management and Land Policy – ‘Land’ and its expanding spaces of law and property rightsfor a timely legal geography“
Expanding the spaces of law: towards a contemporary legal geography for land management and land policy as the amalgam for the overarching theoretical framework for a timely legal geography – The “legal turn” in Geography
1. Territory is property. Land is a very special object of the mutual constitution of “the legal” and “the spatial”. Property law, constitutional law, and international law are core judicial elements in the hierarchy of law for the legal geography. Land rights always concern boundaries and territories. Both have been core elements of investigation of geographers, jurists, ethnographers, and many others.
2. “The land is the source of the law” (Black 2010). The concept of legal geography is most convincing if it focuses on land. Being myself a jurist and geographer, the concept and critical discourse of legal geography – a genuinely international rather than academic project – in the context of land management and land policy, is exciting and promising. Legal geography will even become a livelier and creative scholarship when combined with overarching land management and land policy instruments and concepts.
3. In Africa and Southeast-Asia, land laws, property laws, constitutions have left deep and complex imprints on the land policy landscape by legal transplantation. Maybe it is the time to map out an entirely new scholarly agenda. The aim of this habilitation is to bring the scholarly agenda to the ground, e.g., to national and international land management and land policy nomospheric implications in order to show that law and geography are not abstract, but are subjects of reification that particularly “land” is fundamentally social.
4. Land is more than ever a commodity (think of China, Cambodia or Ghana) for Foreign Direct Investment (FDI), but conversely a holy gift, a global common and private property resource. Property is the law of things. As land is the source of the law, property is the relation of and between natural resources, and space. Spatially grounded rights are land conflicts: fights for control and over resources as different legally defined spaces, on national and international level. It is time to start now since development partners have discovered the global “land question” (at the occurrence of the land grabbing phenomena) and are focusing on land tenure rights – not necessarily property rights – reform more than in any decades ago. However, there is no right or wrong tenure due to the anthropological geography of law, but also to the ethnography of law, the conditions of legal pluralism, legal transplants, and property relations in the constitutional order. Legal pluralism is a central position in the analysis of law in space, as shown at the example of Cambodia where a spatial and individualized modern, donor-driven grid of legal interpretation and adaptation was imposed upon a traditionally variegated, contextual legal map.
5. Land law reforms have social consequences, distribution and use of natural resources such as land and water. The private property-oriented – neither optimal nor always necessary – Icarus flight is high. Much ink has been spilled in the recent years on land law reform, the property-rights debate, land grabbing and foreign direct investment. However, emerging literature on law and space pays relatively little attention to the complexities between law and space that arise from different legal orders, but also from the concepts of land management and land policies from the critical legal geography perspective. Many contributions of the challenging, exciting law and geography-movement focus on the United States and the industrialized urban spaces – seldom rural spaces – bias and an elite view on the expanding spaces of planning, law, property rights (as elements of the nomosphere), geo-politics, and geo-legality.
6. Law is encoded in material landscapes of property and belonging. The critical geographical legal discourse – in the sense of Nicholas Blomley, David Delaney, Alexandre (Sandy) Kedar, and Irus Braverman – makes the legal relations between landowners and others that produce spatial arrangements visible. It deals with situations where some can be violently removed or excluded from the use of natural resources. The technical progress for land registration such as the Social Tenure Domain Model, the (Namibian) Flexible Land Tenure Systems or statutory versus customary tenure for the transaction cost reduction as an essential land management tool is to be embedded in the broader law and geography context. Up until now, a clear theoretical approach to conceptualize the critique of hidden techniques of law in the production of spaces of belongings has not been provided yet, although it has a commitment to law and space.
7. It should be noted that tenure regimes are not necessarily property regimes. A property regime is by far a broader concept: it can also refer to intellectual property rights systems, registered patents or trademarks, or even traditional, unwritten rights in medical propensities of local plants known to the local population. It may encompass as well as water rights system (water tenure), collection rights for wood, fishery rights etc. Tenure might be reduced to private ownership or private property. These bundles of rights include rights of use, management, temporary or permanent transfer, enjoyment of benefits or compensation and refer to natural or legal individuals as well as groups. Rights vary significantly among countries, cultures or the existing land administration framework.
8. We must think geography (more) jurisdictionally in terms of lawful land management and the renaissance of (social) land policies between private actors and the public weal. Land management and land policy can enhance the social constructed-ness of property. Land management comprises advice, planning, construction, financing, and regulations; it bridges the gap between land management and land policy. Land policy comprises the totality of the activities of public authorities in relation to land property and tenure. The concept is understood as conscious action to bring about a sustainable use of land (allocation) as well as of a socially just distribution of landownership and of income from land. The full potential of the (critical) legal geography with respect to the requirements of land management and its sub-layer land administration and registration, and land policies is not yet fully realized. It is necessary to move beyond the concept, towards a dynamic land development process that emphasizes the social ties of property, but also identifies the underlying policy changes of land use by foreign direct investment, privatization, and property-led (urban) development such as in Cambodia. Remarkable work has to be done for the law and geography field to achieve efficiency, effectiveness, transparency, and fairness for the “world making” before the background of changing importance of land compared to other traditional factors of production such as knowledge and intellectual property.[Habilitationsprojekt an der Justus-Liebig-Universität Gießen, Fachbereich 07-Mathematik und Informatik, Physik, Geographie. Abgeschlossen im Jahr 2017]