Legal Paradigms in Contemporary Land Reform

This article examines the extent to which contemporary land reform debates are based on assumptions about 'legal centralism' - an implicit insistence that the label 'law' should be confined to state law, and that other normative orderings are, and should be, subordinate to the state. The current orthodoxy is, in other words, premised upon a model of historical progression that leaves little room for local variation: it is assumed that as societies develop modern capitalist economies, non-state legal orders give way neatly to state law and that, in relation to property rights, informal tenure arrangements are superseded by formalisation. In fact, contemporary development policy is based on a misreading of the historical record. There is little evidence to suggest that legal and property relations evolve in a linear fashion from the customary to the formal. The importance currently attached to formal state law reflects a legal-centralist theoretical outlook and an 'evolutionary development' approach to policy. The continuation of non-state legal orders concerning land relations in many developing countries poses a powerful challenge to frameworks predicated upon evolutionary development.