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Can traditional laws work at a national level?

More secure land rights could encourage people to invest more efficiently in their land, providing a boost to global food supply and improving their own incomes
More secure land rights could encourage people to invest more efficiently in their land, providing a boost to global food supply and improving their own incomes

Countries are increasingly recognising customary land rights to ensure a better deal for local farmers, but what is the best way to accomplish this, and could it have global benefits? Guest blogger Stanley Ellerby-English tackles this question.

Gaining secure access to food is already a challenge for hundreds of millions of people all over the world. With the population of the earth set to hit 9 billion by 2050, providing food to everyone is likely to become even harder. The impact of not getting it right is plain to see even now, especially for children.

People across the Sahel region of Western Africa regularly face acute food shortages and 50% of all childhood deaths in India are attributed to malnutrition. Whilst improving yields, reducing waste and getting food where it is needed are essential challenges, land will always be the main factor in growing any crop.

This holds true whether it is a large commercial farm in the USA or a small subsistence farm in Uganda. Deciding who has the right to use this land is, therefore, an important issue and one that has been receiving increasing attention from experts. This is complex, but it is believed that establishing these rights will yield major gains.

Establishing traditional land rights

It is argued that secure land rights will mean that people will invest more efficiently in their land, contributing more to global food supply and to their own incomes. Essentially, permanent rights to land will establish a sense of certainty that encourages long-term planning rather than just getting by. Ensuring traditionally marginalised rural populations are able to assert their customary rights to the land could, therefore, be a powerful tool for sustainable and equitable development. At the heart of this process is the need to establish what those customary claims and laws are.

An irrigation scheme has worked wonder for these farmers in the drought-prone Gode region of Ethiopia
When floods strike, traditional land laws can sometimes save
livelihoods by dividing the remaining dry land, while rigid centralised
laws leave flooded farmers penniless

As it stands, the drive to recognise customary ownership systems usually focuses on writing traditional law into formal legal systems. Whilst this has been the aim in many countries, bridging this gap between systems often proves far more difficult than expected. It can be hard to determine what laws actually exist when nothing is written down and local people all say vastly different things when asked. However, the presumption is that it will be worth overcoming these challenges in order to build a fairer system for all.

Whilst it is certainly important to recognise customary rights to land, it is important to recognise why simply fitting them into formal legal systems is extremely difficult. As anthropologists around the world have argued, the way that customary laws function is completely different from that of modern nation states. There is, therefore, a real risk that simply incorporating customary law into wider systems will miss a lot of what made this systems effective in the first place.

The need to evolve

This becomes clear when looking at one of the main aspects of customary legal systems. Without police or a judiciary, customary laws tend to focus on social agreement rather than prescriptive rules, as is the case with formal laws at the national level. This often means that laws can change rapidly as social groups respond to changing circumstances and reinterpret different traditions. This can often mean that people are unable to give a unified answer about a particular law and it is difficult to work only from past precedents. Whilst this may seem arbitrary to those who are trying to pin down what customary law is, the reality is that this approach can have major benefits.

In the case of land rights, the flexibility of customary systems often means that people are more able to adapt to unforeseen occurrences. For example, when floods leave a large portion of a village's land unusable, customary systems are easily able to divided up the remaining land based on what each family needs. In contrast, a rigid system of ownership would make it far harder to reapportion land based on people's different needs. With climate change creating increasingly erratic weather, this sort of flexibility is incredibly important for small farmers.

None of this is to say that recognising customary laws is a bad thing or that formal legal systems are worse than customary systems. However, any attempt to recognise them should also take care to ensure that the character of a system is not lost in translation and transcription. If this is achieved, recognition could mean major gains for everyone involved.

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