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Law, land use and the environment: Afro-Indian dialogues

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Christoph Eberhard

Introduction

Law, Land Use and the Environment: An Introduction1

Christoph Eberhard

Texte intégral

Land Law and Natural Resources Management

  • 1 This introduction is a translation / adaptation from the original French introduction and is thus (...)
  • 1 Understood as ‘human being’.
  • 2 It should be noted that the naturalist premises underlying this approach are based on the big divi (...)
  • 3 Even if we were alone, we would still need to invent a mode of relationship to our environment. Se (...)
  • 4 Whenever I write ‘Law’ with a capital ‘L’, I refer to the French idea of ‘juridique’ or ‘juridicit (...)
  • 5 All original French quotations have been translated into English by the author.

1The questions of land use and of the environment plunge us into the heart of human life. They invite us to reflect upon the ways that human beings construct their relationship to their environment, how they adapt to its constraints, how they shape it. However, this interaction is not only that of a subject, man,1 and of an object, nature. Nor is it the action of the former on the latter, as a Cartesian reading could suggest, in which man appears essentially as the one who has to subjugate nature through his will; a will to which the latter shows resistance through its ‘inertia’. Without entering into ‘deep ecology’ considerations and without adhering to the Gaia theory of a living earth that is animated by a soul and is therefore also a subject, and maintaining the anthropocentric vision that characterizes social sciences rooted in Western modernity,2 it becomes increasingly clear that the action of man on his environment is mediated by his representations, by the way he envisages his place and his role in the world, and by both his relationship to the world and the relationships he establishes with his fellow human beings. The question of land use and of natural resources management, la question foncière, arises because we are not Robinson Crusoes who live solitarily on our island, but human beings who have to share spaces for living as well as the resources they contain.3 Étienne Le Roy, who sees Law4 as deeply fashioned by our imaginations and who considers that the relationship to land, the rapport foncier, is an ‘imagined’ relationship between human beings concerning a space that only exists according to the conventions inscribed in systems of ideas before being materialized in social space (Le Bris, Le Roy, Matthieu 1991: 12), proposes a definition that sums up the elements mentioned. “Land use and natural resources management, le foncier, is the particular set of social relationships whose support is land or territorial space. These social relationships are principally determined by economic factors (primitive accumulation of capital and extraction of income), legal factors (norms of appropriation and modalities for conflict resolution) and by techniques of land development and planning that materialize and characterize these social relationships in distinct regimes.” He adds, and this remark is fundamental in the contexts of contemporary research, that “(...) more substantially, it is politics that influence the way in which the question of land use and natural resources management is posed and approached. This sensitivity of land law and natural resources management is increased by the competition or the contradiction of the choices made at the international, national and local levels” (Le Roy in Le Bris, Le Roy, Matthieu 1991: 13-14).5

Introducing the Environment

  • 6 In French, there is an interesting move from approaches in terms of ‘environnement’ to approaches (...)
  • 7 The French expression ‘juste milieu’ can be translated in both ways and thus refers to both of the (...)
  • 8 The framework of ‘propriété’ comes close to the ‘private ownership’ paradigm in Common Faw and sho (...)
  • 9 It is not very easy to translate the concept of ‘patrimoine’ into English. It refers to the notion (...)
  • 10 See also François Ost’s consideration of ‘Le patrimoine, un statut juridique pour le milieu’, ‘Pat (...)
  • 11 Also see Barrière 2005.

2An additional element has been added over the last ten years to the analysis above. After having mainly considered the land security of the human actors, studies on land use and natural resources management have progressively opened up to more ecological considerations integrating environmental issues into their analyses. It appears less and less satisfying to think about the environment only in terms of its exploitation by man and by preoccupying oneself mainly with the organization of use and management systems aimed at securing the stakeholders. World demography is exerting a heretofore unknown pressure on the planet and our contemporary lifestyles have a tremendous and often irreversible impact on nature. Little by little we understand that the environment is not just a space surrounding us that we can exploit as we want. It is the environment in which we are inscribed.6 We have the responsibility to preserve it, if only to ensure our survival and that of our children. We have to move towards a ‘juste milieu, a ‘right environment’ and a ‘middle path’,7 an approach that makes it possible to reconcile human needs with the safeguarding of our planet and its ecosystems (Ost 1995). This new awareness is reflected on the level of political, economic and legal action. The increasing space occupied by ‘sustainable development’ in the discourses and institutional bodies on international, national and local levels bears witness to this. On the one hand, sustainable development is supposed to balance the economic, social and environmental pillars; on the other hand, it should permit present generations to meet their needs without compromising the ability of future generations to meet theirs-according to the Brundtland report’s well-known formula (WCED 1987). In a Francophone context, one can also note the development of research that aims to emancipate land use and the management of natural resources from the ‘propriétariste’ framework8 and to open it up to ‘patrimonial’ approaches that echo the introduction of the notion of ‘patrimoine9into environmental law (see Klemm 1996).10 We seem indeed to be confronted with the challenge of a ‘law to be invented’, as Olivier and Catherine Barrière point out (2002: 15-16). For these authors, “to represent ‘foncier’ as only referring to the relationship to land insufficiently reflects the real scope of man’s action on his environment, which has to be integrated into research on environmental management. It is necessary to also consider the relationship of man and space. The study of the conjunction of land, as a support, and of ‘surface area’ makes it possible to elaborate a combination of rights related to space, to resources and to the ecosystem. On this basis, it becomes possible to think about a regime that does not rely on the appropriation of land, but that is contained in the duality of ‘espace / milieu’, of ‘space / environment’. This approach defines a form of ‘patrimonial management’ that is designated by the neologism ‘foncier-environnement’, which could be translated in English as ‘Law and natural resources management-environment’. This makes it possible to free research from a ruralist approach to land use and natural resources management that restricts its analysis to the relationships of access to resources and their distribution among the different actors and that fails to take ecological processes and all natural elements into account. Land use and natural resources management cannot continue to be defined solely in terms of rules about renewable resources or in terms of the construction of spaces; it must integrate an environmental dimension.”11

The Issue of Urban Land Use

  • 12 On the issues of urban explosion and globalization, see Volume 14 2007/2 of Alternatives Sud, whic (...)

3While an approach to land use and natural resources management that includes environmental sensitivity (foncier-environnement) would seem to be confirmed, one must underline the emergence of another major issue that shakes the traditional ruralist approaches to land: urban explosion. Humanity has now entered a new historical phase. Today the majority of the world population lives in cities and this trend towards urbanization is not likely to decrease soon (Delcourt 2007: 7).12 Moreover, this urbanization is connected with an increasing impoverishment of urban populations and assumes an unprecedented form. To the classical rural exodus, one can add today a colonization of the rural world by the cities. “The emerging cities and the megapoles spread everywhere horizontally. They encroach more and more on the surrounding territories. The rural world gets urbanized in situ. It is no longer the peasants who move to the cities, but the city that reaches out to the peasants. Through complex processes of ‘co-urbanization’, cities keep on pushing their borders farther and farther; they create new nodes between them; they bypass small towns; they encircle and enclose villages. Vast polycentric zones punctuated by hybrid semi-rural and semi-urban spaces appear” (Delcourt 2007: 10). This evolution questions research on land use and natural resources management as it blurs one of its fundamental distinctions between the rural and the urban world, which was reflected until recently in the separation of the approaches of rural land use and urban land use, whether on the scientific or on the political level. While recognizing the discontinuities between rural and urban land situations, it is becoming increasingly necessary to articulate these two fields and to begin to identify the continuities and the common dynamics (Durand-Lasserve 2007).

Land Use, Natural Resources Management and the Environment in the Context of the Globalization of ‘Governance’ and ‘Sustainable Development’

  • 13 See the analysis by Callon, Lascoumes and Barthe on the emergence of hybrid forums and their issue (...)

4The increasing consideration given to the environment that makes it necessary to combine different perspectives, to go beyond the borders of different disciplinary approaches and to move towards more holistic approaches, is inscribed in the context of an important modification of our political, legal, economic and scientific representations that also lend greater complexity to our ‘modern games’. We find ourselves in a paradigmatic transition in which the forms of organization and perception of the world inherited from modernity are partially challenged and complemented by new approaches (de Sousa Santos 1995, Arnaud 1998). Consequently, the segmentation and compartmentalization that are characteristic of the modern scientific approaches, as well as our modern ways of envisaging the political, the economic and the legal, are being questioned. In science, the belief in a radical separation between the observer and the observed does not hold anymore and the importance of re-inscribing both in an integral whole is recognized. As to the ‘management’ of our societies, it seems less and less realistic to separate the economic, social and environmental fields, as the concept of sustainable development illustrates. Reality is complex and in order to meet the challenges it presents to us, one must open up to interdisciplinarity, to intersectorality, to approaches that permit the participation of all stakeholders; a crossing of points of views and an articulation of needs, logics and issues that may seem to be incompatible a priori (see for example Calame 2003). This evolution emancipates us from the grands partages, the big divisions, of modernity described by Bruno Latour (1997: 132ff.) between ‘them’ and ‘us’, between ‘humans’ and ‘non-humans’ that can be further divided in multiple ways: between science and politics, between laymen and experts, between administrators and those who are administered, between administrators of people (politicians) and administrators of things (scientists). At the political-legal level, this transition from the ‘simple’, the ‘pure’, the ‘segmented’ to the ‘complex’ and the ‘hybrid’ 13is manifested as the passage from the classical forms of ‘government’ to new forms of ‘governance’, which echoes the transition observed in Law that some authors have analyzed in terms of a possible transition from the ‘pyramid’ to the ‘network’ (Ost & van de Kerchove 2002) and which could be the necessary passage to a ‘dialogical democracy’ (Callon, Lascoumes, Barthes 2001).

  • 14 This point can be illustrated by Stieglitz’s (2002) critical analysis of structural adjustment pla (...)
  • 15 On the ambiguities of the concept of governance, see for example Arnaud 2003: 330ff. and Baron 200 (...)
  • 16 On the ambiguity between science and ideology and on the stakes of a field work that escapes ideol (...)

5However, if ‘governance’ and ‘sustainable development’ have become key terms in the semantic field such as it is reshaped in the era of globalization, and if they often appear as two sides of the same reality that should be promoted in the interest of the survival of our species and of our planet, it is important not to get lost in ideological approaches that are disconnected from ‘field realities’. Such approaches may not only turn out to be ineffective, but even highly counterproductive, to the point that they may lead to real human and natural catastrophes.14 Further, the stakes are all the more crucial, not only because the fuzziness of these terms gives them an appearance of universality, but because they are used as much as scientific ‘concepts’ 15as ideological slogans.16

  • 17 As for example crossing economic, environmental and social logics and expectations on local, natio (...)
  • 18 A recent publication of the international research dynamic on ‘Law, Governance and Sustainable Dev (...)

6It is therefore essential to foster the grand theoretical debates on the shaping of our present and of our future through case studies that illustrate and thus permit us to understand the mechanisms and processes that are involved. Drawing attention to diverse fields and problematiques at more or less global or local levels also highlights the issues involved in the translation from one scale to the other, from one world to another, from one domain of action to another.17 The recognition of this issue of translation contributes on a deeper level to raise awareness to the importance of intercultural dialogue around the questions of governance and sustainable development.18

The Origins of a Collective Research Dynamic. Its Issues and the Difficulties of Dialogue

  • 19 A similar dialogue in the framework of the ‘Law, Governance and Sustainable Development’ dynamic i (...)

7This publication is the result of a collective research dynamic, the aim is to consider the issues presented above. It was a matter of exploring the challenges and perspectives of land use and natural resources management in the contemporary context. The latter is characterized, among other factors, by globalization, by an increasingly unsustainable pressure exerted by man on his environment and by a reorientation from political and legal approaches in terms of government and growth to approaches in terms of governance and of sustainable development. One can add the emergence of the growing need for intercultural dialogue that entails a whole series of issues related to translation. On a more modest level, the aim of the conference was to provide an opportunity for African or Africanist and Indian or Indianist researchers to meet in order to engage in dialogues on land and environmental issues as they appear in these two contexts.19 Although there exists a reciprocal interest between these two worlds, dialogue seemed to be all the more important since they unfortunately often ignore each other, Indian research being largely Anglophone, whereas research pertaining to a great part of Africa (especially the regions studied by Francophone scholars) is in French.

  • 20 Apart of the members of the Advisory Committee, the list of whom can be consulted at the beginning (...)

8The project crystallized through the collaboration of a number of institutions and of dynamics, that must be acknowledged and without whose active participation our wish for dialogue could not have found fruition, first in the form of an international conference in Pondicherry in March 2006, then in the form of this publication. In alphabetical order they are: the Association Francophone d’Anthropologie du Droit (AFAD / Francophone Association of Legal Anthropology), of which quite a number of members have been working for several years on land law and natural resources management issues, but mostly in Francophone contexts (see CAD 2002); the Dr. Ambedkar College of Law of Pondicherry, with its strong interest in comparative research between Francophone and Anglophone, African and Indian approaches; the dynamic Droit, gouvernance et développement durable (Law, Governance and Sustainable Development) based at the Facultés universitaires Saint Louis (FUSL) in Brussels; the Institut Français de Pondichéry (IFP-French Institute of Pondicherry), serving as a window of France-and increasingly of Europe-on India and of India on Europe and on France; an informal network of Indian researchers that has emerged around the question of legal pluralism after a first collective publication on legal pluralism in India (Eberhard & Gupta 2005) and has now created an official structure, the Asian Initiative on Legal Pluralism (AILP); and last but not least, the Société de Droit Comparé de Pondichéry (Society of Comparative Law of Pondicherry) that could not remain indifferent to this comparative research, even if it went beyond the strict borders of law.20

  • 21 The participants included anthropologists, economists, geographers, lawyers, political scientists, (...)
  • 22 For a presentation of modern Indian Law and its challenges, see for example Annoussamy 2001, Galan (...)

9To bring together researchers from different disciplines is already a difficult task if one aims at going beyond a mere juxtaposition of discourses and if one tries to move from mere multi-to a real interdisciplinarity (see Kothari 1990: 23ff., Ost & van de Kerchove 1987: 25ff.). We have taken the challenge even farther: on the one hand, the conference was not only open to researchers from different disciplines but also to practitioners;21 on the other hand, it was bilingual, English and French. The collective work soon revealed that behind the two languages lurked two different ways of approaching Law as well as visions of the world and that everything was not always translatable. Indeed, even before penetrating the African and Indian worlds, the official State level already confronted us with very different ways to think and practice Law, a Civilist way characterizing most of the African countries in the discussion and a Common Law way characterizing the Indian legal system.22

  • 23 On these questions the reader may refer to the works of Pierre Legrand (see for example Legrand 19 (...)

10If one had to beware of ‘false friends’ such as ‘propriété’ / ‘property’ and to make sure to translate the ‘propriété privée’ of the Code civil by ‘private ownership’, it appeared quickly that behind the words lay very different ways to pattern the legal fields and to tie together the problematic of law, land use, natural resources management and the environment.23 The French ‘foncier itself was transformed in English into ‘land law and natural resources management’, thus transforming the whole original problematique. If the majority of the Francophone contributions share a vision of ‘foncier that is foremostly perceived in terms of land security (sécurité foncière), especially of rural land, the Indian authors circumscribed their field of enquiry in a much broader manner by including water management, pisciculture, mining, etc. It should also be noted that in a Francophone context, “the term fonder refers to a multiplicity of legal envelopes that correspond to as many statuses and procedures, called domaniales or foncières that in general today are all conceived so as to be situated in relation to the right of private ownership (droit de propriété)”, as Alain Rochegude (2002: 20) points out. Consequently, for the Francophone authors to open up the field of land law and natural resources management, which is predominantly conceived in relation to State law that organizes ownership (propriété) in a strict manner, towards new governance approaches seemed to constitute an important challenge, far more important than for their Indian colleagues. The latter, embedded in a system inherited from Common Faw, seemed much more at ease in crossing their analyses with governance and sustainable development approaches. This may partly be explained by a generally more pragmatic attitude of Common Faw that does “not privilege (...) the values of generalization and standardization authorized by the common manner of legislative command, but the values of individualization and particularization” (Fegrand 1999: 97). This leads to more ease in bringing together approaches that are perceived as distinct if one looks at them from the point of view of a Civilist law tradition. Indeed, from a Common Faw point of view, “the arguments founded on coherence are prone to induce ‘error’, as the great richness of Common Faw rests in its ‘practical character’, which permits it ‘to adapt to the rich diversity of human lives’. Thus, ‘the fact that a given doctrine is not logically coherent with one or more other doctrines does not constitute a reason for its rejection’” (Fegrand 1999: 75). One can further underline the broader definition of the field of research by the Indian authors and the fact that the Common Faw regime of ‘property’ refers to a ‘bundle of rights’ from the very beginning. And this bundle of rights is even complemented by certain mechanisms of responsibility, as illustrated by the institutions of trust and of stewardship. Consequently, it was not always easy to convey the importance of a ‘patrimonial approach’ in emancipating research and law from the ‘all ownership’ (‘tout propriété’) approach to colleagues who are not embedded in a context marked by the existence of a narrow, absolute and closed notion of ‘propriété’. For property in Common Law, while referring to a bundle of rights, also contains duties that can be mobilized in order to take into account larger environmental or social considerations. In return, these discussions have not failed to question the reflections of the Francophone researcher regarding the promotion of ‘propriété privée / private ownership’by development agencies that are largely embedded in an Anglo-Saxon vision. Placed in its original context, could it be that the promoted system might be more nuanced than the implicit reference to a French ‘droit de propriété’ would invite one to think?

11Despite the difficulties, the dialogues were very fruitful. The endeavour made it possible to become aware of the enormous stakes of translation between different linguistic, legal and mental universes and of the impossibility of ‘perfect translation’ -notwithstanding the illusion that is created by simultaneous translation during large international summits. It was the necessity to respect the topoi of the different participants that finally convinced us to publish a bilingual book in English and French and not to opt for a translation of all texts into English in order to reach the broadest audience. Indeed, if the essence of the diverse problematiques has been conveyed without doubt in the two languages, it remains that the presentations really only make sense in their own language and in their own cultural and scientific context. For those who do not master both languages, we have decided to provide an extended abstract for each contribution that should allow the reader to grasp the essential problematique of those articles that are written in the language not mastered. Finally, the awareness of the difficulty of dialogue between two languages and two systems of law of European origin underlines the enormous importance of taking into consideration the languages and visions of Law and the world that exist ‘in the shadow’ of State law in African and Indian States. Numerous contributions to this publication point towards these realities, unfortunately, without deepening them in all their originality. To undertake these explorations will be the challenge of our future research.

12A final important remark: If we have indeed tried to respect the topoi of all contributors, it is clear that the general research dynamic was oriented from a particular point of view. The initiative came from the Francophone Association of Legal Anthropology (AFAD) and the Law, Governance and Sustainable Development dynamic of the FUSL. Hence, it is a Francophone approach largely shaped by the point of view of the anthropology of Law that has informed the whole dynamic, as is reflected in this introduction. I hope that the reader will not perceive this as a shortcoming, but will recognize this as the intrinsic limit to any dialogue: one has to start from a given topos - even if this point of departure necessarily influences the continuation of the dialogue and the restitution of its conclusions. As Pierre Legrand (1999: 64) reminds us in relation to any comparative approach that needs to open itself up to other universes: “The comparatiste approaches a legal culture from a place that is never this legal culture itself, but that is thus always, at least a little, ‘out of itself. Consequently he remains in a struggle against the difficulty to articulate one relation with another, which can only be asymmetrical, and he has to recognize that his critical activity is dominated by this dilemma.”

The Epistemological Foundations of the Research

13After having painted this impressionist image of the field of research and after having highlighted some major issues, we will now briefly present the contributions in order to equip the readers with a map to help them situate themselves on their journey through this publication.

14It seemed to be appropriate to extend this general introduction with two other texts of an introductory character, permitting the reader to fully benefit from the journey of discovery provided by the African and Indian studies that follow. The first text sets anew the terms of the contemporary issues in the field of land law and natural resources management by contrasting them with the dominant ideology of ‘private ownership / propriété privée’. Étienne Le Roy highlights a number of transversal issues involved in contemporary approaches to land law and natural resources management. These include the necessary emancipation from the ideological framework of private ownership / propriété privée promoted by development institutions and the necessity to complement top-down approaches with bottom-up approaches that consider the everyday realities of the concerned stakeholders. Despite the dominant discourses, and especially in contexts in which the authority that is supposed to guarantee this right is unable to do so-as is the case in many states in the ‘South’ -, land security (sécurité foncière) is only incidentally linked to the holding of titles and of the more or less absolute right conferred by them. A ‘Code civil propriété’ approach is only pertinent in contexts where an État de Droit (Rule of Law) and a generalized market exist. If the State fails to play its role, there is no authority that can represent the general interest and guarantee ownership (propriété). Further, when the market is not generalized and situations of ‘imperfect marketization’ (marchandisation imparfaite) prevail, which is characteristic of a majority of contexts in the ‘South’, private ownership can turn out not only to be inefficient but even dangerous: “a sledgehammer to crack a nut”. Etienne Le Roy’s contribution also underlines the necessity of a more pragmatic approach that is sensitive to field realities and attempts to render complementary and operational the legal mechanisms of the State and the indigenous processes that contribute to the stability of exchanges and to the pacification of society. The concepts of ‘patrimoine’ and ‘patrimonial management’ seem to provide valuable tools that could offer solutions to meet contemporary challenges, while disposing of the blinkers of the ideology of globalization and private ownership / propriété privée.

15Matthieu Galey puts this approach into perspective through his analysis of the ‘cognitive adaptor’ provided by Charles Reinold Noyes’ classification of systems of property. If Étienne Le Roy’s reflections point to issues that the reader will encounter throughout this publication, they are nevertheless rooted in a perspective that is strongly shaped by a Civilist outlook on Law. Matthieu Galey’s presentation sheds light on this specificity and allows one to grasp the importance of formal differences. Through these differences, it is possible to contrast the ways in which the appropriation of land is legally organized in the Common Law tradition and in the Civilist or Romano-Germanic traditions. Ear from being simple manners of speaking, these differences point to substantial institutional differences that can be characterized by modelling the structure of systems of property conceived as systems of relationships between persons around a bien immeuble, land. This modelling provides a useful tool to navigate between the Civilist and the Common Law legal worlds. In addition, it prepares the reader for a smooth transition from the African worlds explored in the first part of the book that are for the most part embedded in a Civilist system, to the Indian worlds that are explored in the second part and are set in Common Law.

African Perspectives

16Alain Karsenty introduces us to the question of land law and natural resources management in Africa by crossing the insights he gained through fieldwork in the Maghreb, Sub-Saharan Africa and Madagascar. His presentation highlights the necessity of interdisciplinary approaches and points out the constraints and the methodological issues of research carried out in this field. The difficulty consists not only in managing to ‘think together’ the different levels of analysis (for example, the individual strategies and the collective choices that result from history and culture), but also in getting researchers from different scientific disciplines and from different institutional cultures to work together. The analytical categories put forward by the different theoretical disciplines mobilized to understand the phenomena of land use and natural resources management certainly shed light on the different aspects of social phenomena. They can nevertheless produce unintelligibility when they are used in an exclusive manner in order to unveil the ‘essence’ of the phenomena one seeks to understand. This is illustrated through the phenomenon of the ‘invention of tradition’ by the researcher who does not thoroughly distinguish between the data collected through his fieldwork and the model constructed with them. In his diachronic analysis of the political economy of land reforms in the Ivory Coast and through his analysis of the 1998 law on customary land rights that reshapes the regime of rights transfers between ‘autochthons’ and ‘foreigners’, Jean-Pierre Chauveau underlines the importance of not essentializing the observed phenomena, but taking care to re-inscribe them in their broader historical and political context. The discourses on decentralization and participatory development that rediscover ‘local’, ‘indigenous’ knowledge, have a tendency to essentialize the latter and to approach these realities as if they were ahistorical and not inscribed in processes of power, domination and resistance. Jean-Pierre Chauveau’s study provides a warning to an idealist approach to governance and sustainable development and should be kept in mind while reading other contributions that dwell less on these aspects.

17The discovery of African situations is then continued through five contributions, all illustrating in their own way the importance as well as the limits of participatory management of land and natural resources. “Local is lekker”, “local is good”, writes Renaud Lapeyre in the title of his contribution on the establishment of a participative management of the natural preserves in Namibia. His analysis sheds light on the role of the private sector in indigenous development. While a more profound land reform seems unavoidable if the Namibian state wants to efficiently promote sustainable rural development, one witnesses today the emergence of a new paradigm and a new institutional form as a reaction to the limits of communitarian structures: joint-venture contracts that bind the local communities to the private sector for the valorization of the natural assets of the territory. Although these local contracts that are based on the securization of the local population’s land rights, permit a redistribution of touristic revenue to the rural populations, the situation nevertheless remains unstable because this institutional structure constitutes a source of conflicts and continues to marginalize the conservancies too much. Robinson Tchapmégni and Christian Adonis Milol, who introduce the reader to the reality of land and natural resources management in Cameroon from two complementary sites, shed further light on the issues of ‘local’ participation and the taking into account of the indigenous logics and practices. Robinson Tchapmégni, a judge, exposes the difficulties arising from the disconnection between the State land law and the regimes of ‘traditional property’ that seems to become increasingly exacerbated. The latter, although not recognized officially, in fact constitute a reality that is very much alive. Christian Adonis Milol draws our attention to the realization of an ambitious programme of reforms that Cameroon has engaged in since 1994 in its forest policy and in its policy on sustainable management of renewable forest resources. This reform, which took the form of the institution of genuine tools promoting participative management, the promotion of a social forestry with the creation of a new kind of forests (the communitarian forests) and of open spaces (communitarian hunting grounds), gives rise to an analysis that is explicitly based between State institutions and local communities. It reveals that the proposed mechanisms of participatory / community management rely, in the final analysis, on a Western pre-established model that draws only little inspiration from the autochthonous models, which nevertheless already function. The disillusioned populations seem to begin to resist the practices of local governance to which they do not find a connection. The Madagascar experience, presented by Mustapha Omrane, confirms the vitality of non-State modes of land management. However, it also stresses the increasing demand by the farmers for formal legal securization, which, in order to be effective, will need to recognize the actual practices of the actors in the field. Sigrid Aubert and Manuela Lesage conclude this series of reflections on rural land issues with their field study in La Réunion, one of the French overseas departments. The failure of State law has given rise there to the exploration of more participative approaches constructed around the institution of médiation foncière, of land use and natural resources management mediation. This may well contain the seed for a renewed approach to land law and natural resources management by opening it up to a more participative management.

18Nada Auzary-Schmaltz and Jellal Abdelkafi conclude this first part with an exploration of the Tunisian situation. Nada Auzary-Schmaltz retraces the evolution of Tunisian land legislation that originated in the promulgation of the land law of 1885. This exogenous law that was inscribed in the colonial context could have been no more than a circumstantial legislation to be quickly carried away by the tribulations of history. Nonetheless, it became the prototype inspiring many other legislations shortly after its promulgation. Even though adapted through a number of reforms necessitated by Tunisia’s evolution it finally endured. It constitutes the basis for Tunisia’s post-independence land law since 1956. Long marked by a dynamic of the extension of agricultural land, the point in question in contemporary land issues in Tunisia seems to increasingly become the management of urban land law. Jellal Abdelkafi shows the interweaving of the phenomena of urbanization in the development process, on the one hand, with the legal and institutional construction of the Tunisian Republic, on the other hand. Human pressure and concentration in the coastal regions have transformed spaces and societies, sometimes radically. They have challenged traditional relationships between those who govern and those who are governed. They have inaugurated an exceptional tension on the double front of job creation and housing construction. In the beginning of the twenty-first century, it appears that the legal and institutional structure, including the registration of property and inscription in the land register, remains unfinished and partly random. The democratization of local institutions and the participation of city dwellers in planning seem to be decisive elements to meet the challenges of an urbanization that will continue intensely for at least another half century.

Perspectives from India

19Echoing Jean-Pierre Chauveau’s reflection, the introductory contribution to this second part explores the political economy of the relations between environment and development, on the one hand, and the recognition of the rights of adivasi, or indigenous people, on the other hand. The diachronical analysis reveals that generally speaking adivasi rights have been shaped by the priorities of ‘development’ and of ‘environment’. While there are indeed real advances, and although one cannot deny the importance of the legal field as an significant arena of struggle where activists can promote their agenda of the recognition of rights, this article nevertheless notes the limits of law in a political context in which development is the hegemonic preoccupation and in which the representations of the environment that shape the debates are those of urbanized middle classes and not those of the adivasi. If the recognition of adivasi by the legal system through the recognition of their customary rights remains an important goal, this dynamic should not hide the issues of a larger struggle that dares to challenge the idea and the postulates of development itself. The considerations of D. Parthasarathy complement this analysis through a study of mining that is mainly localized in forest areas inhabited by adivasi, or in rural zones that depend largely on agriculture as the chief source of livelihood. The author critically examines the issues of the securization of, often informal, traditional artisanal mining that constitutes the basis for survival for many adivasi and other large poor sections of Indian society. How can the ‘excluded’ participate in the benefits of mineral exploitation and not only have to bear the burden of this activity, manifested for example in the form of forced displacements of populations in order to establish mines on their territories? The recognition and the articulation of a plurality of legal and political referents seem to be paramount. Although the move from government to governance, as promoted by national and international development agencies in their ‘good governance agendas’, is problematical in its ideological content, this trend nevertheless opens up spaces that may permit increased adivasi participation in the processes of development and management of natural resources. Lucie Dejouhanet, in a more geographic study, concludes this first series of presentations related to adivasi rights by studying the use and control rights of non-wood forest products of the forests of Kerala that are mainly exploited by adivasi collectors in order to provide the Ayurvedic pharmaceutical industry with the medicinal plants it needs. The collectors find themselves in a game of rivalry. They adapt to it and develop parallel movements and take advantage of breaches in a structure that is supposed to regulate them. Like many other contributors to this publication, the author points out that, despite the promotion of a ‘participation’ discourse, the forest continues to be regulated from outside and the collectors have only little say in the organization of their activity. If they benefit from a right of use, and if they can harvest plants, they must rely on institutions or bypass the authorities’ control by turning to parallel markets in order to get their products out of the forest. Today one witnesses an increasing politicization of the adivasi and a better access of the collectors to information about their rights and about the different outlets for their production. This situation may trigger an upsurge of ‘civil society’ in the debate on the management of these forest resources.

  • 24 See in this context the important reflections of Sally Falk Moore on semi-autonomous social fields (...)
  • 25 And it is certainly not an entity of harmonious coexistence as presented by a certain ‘small is be (...)
  • 26 On the arena and the strategic struggle of different groups in local development, see Olivier de S (...)

20The two following contributions by J. B. Rajan and T. P. Haribabu and by Ignatius Prabhakar, though leaving the field of adivasi, present two other facets of the ‘participation’ of stakeholders in their own development. The first starts from the formal, the second from the informal sector. J. B. Rajan and T. P. Haribabu describe the radical reform of decentralization in Kerala, which attributes great autonomy to the Panchayati Raj Institutions (PRI) as far as planning and implementation of development projects on the local level are concerned. Their analysis focuses on maritime fisheries and on their impact on coastal ecosystems. The decentralized Panchayati Raj management, which organizes the autonomy of decision down to the village level, goes very far in decentralization and in the attempt to construct a participative democracy. Nevertheless, this architecture does not really permit of a response to local needs, nor does it reflect the political, economic and legal processes that can be observed on the grassroots’ level. Ignatius Prabhakar deepens this insight in his exploration of illegal cultivation in water tanks that serve the purpose of irrigation in southern India and more precisely in Tamil Nadu and Pondicherry. Encroachment by the local populations on the water tanks, although illegal and constituting a menace to the existence of such water reserves, is nevertheless widespread and perceived as a ‘legitimate offence’. The multitude of small-scale illegal practices, which are stigmatized as immoral, constitute in their whole a practice of water tank encroachment that seems to benefit from undeniable legitimacy as it is not really challenged by anyone. Although privileging an anthropological approach, the author insists on the importance of local politics, of the power games of the local stakeholders. The ‘local’ that organizes itself as a semi-autonomous social field24 in relation to the official institutions, is far from being homogeneous.25 It rather constitutes an arena where multiple actors and strategies are struggling.26 The creation of water tank user associations that is now promoted by the government and by non-governmental organizations as part of the ‘good governance’ and ‘participatory development’ agendas, makes the situation even more complex. The transfer of the management and maintenance of the water tanks from the government to the associations is indeed inscribed in an ideology that perceives the local as a vacuum to be filled and that negates the existence of already existing structures and management practices.

21Philippe Cutlet invites us to a change of scale. He studies the reforms of the Indian water sector on a national level. Although the necessity of these reforms has become evident over the last three decades, they are all based on a limited number of principles that are considered to provide THE solution for all developing countries. They are centered on the idea that water should be considered mainly as an economic good, thus evacuating its social dimensions. The discourse on participation and giving responsibility to the actors linked to these reforms thus loses its credibility. The creation of user associations that are intended to increase the control by direct users of irrigation water and thus to realize the ideals of decentralization and of participation, in fact does not at all increase their effective control over water. ‘Participation’ rather imposes on them responsibility for the local management of development projects and thus legitimates the transfer of financial responsibilities from the government to the farmers. Although current reforms are significant and do re-define the legal framework of water law for the coming decades, they are nevertheless inadequate because they neither sufficiently recognize the fundamental human right to water nor the other social dimensions of water.

22V. Balaji concludes this second part by considering the issue of sustainable development in India, which needs to reconcile economic growth with the preservation of the environment and the consideration of its social dimensions with recent developments in human rights. As the actual enjoyment of human rights requires a viable environment, human rights can trigger an increased sensitivity to environmental issues. After recalling the international context, the author presents recent evolutions of Indian law in which the Supreme Court plays an important role. Environmental case law developed around the recognition of a right to drinking water, to an unpolluted atmosphere, to a healthy environment, etc. This case law is founded on an extensive interpretation of Article 21 of the Indian Constitution by the Indian Supreme Court. According to it, the fundamental right to life recognized in this article comprises the right to an environment permitting a healthy life. In India, environmental laws regulating forests, fisheries and water bodies, which have a considerable impact on the livelihood of many communities, are thus increasingly coupled to a human rights approach.

Conclusions and Openings to New Horizons

23The contributions to this publication highlight the diversity of situations and the complexity of the issue of land law and natural resources management. The complexity is further increased today as environmental preoccupations enter the picture. They underline the need to get rid of ideological blinkers, be they neo-liberal or others, in order to be able to take into account the concrete constraints and the potentials that need to be articulated.

24Two issues that have been dealt with in this collective research seem particularly relevant. They benefit from the present context that is conducive to their development (at least on a discursive level) and go beyond the land law and natural resources management issue strictly speaking. They are ‘participation’ and the closely related issue of ‘translation’ and ‘dialogue’.

  • 27 It should be noted that we should also have avoided these terms here, since analyses in terms of ‘ (...)

25Numerous contributions have underlined the emancipatory potential, but also the constraints, limits and even perverse effects of participatory approaches. The ideology of ‘participation’ as promoted by the agendas of good governance and sustainable development opens a desired window offering a perspective of ‘local realities’, be it for the preservation of the environment or the survival of the local populations. It points to the complexity of situations that cannot be summed up by the visions of development and governance experts who are carriers of national and international institutional logics. Indeed, the ‘pure local’ does not exist any more than a ‘pure’ national or global. The different scales and the different networks of actors are intermingled at each level. This complexity is often ignored in top-down approaches that characterize most political, legal and economic action and that is further embedded in a very sectoral approach.27

  • 28 See for example Campbell 1997, Eberhard 2006: 145ff., Eberhard 2007, Rahnema 1997.

26Nevertheless, while a deeper understanding of the issues of participation is highly necessary, one should be careful that the incantatory repetition of the mantra of participation does not render inaudible the diversity of logics and points of views. As Jean-Pierre Olivier de Sardan (1995: 189) reminds us in relation to the misunderstandings in the dialogue between social scientists and development operators, and more precisely à propos the notion of field research necessary for taking local realities into account, this cannot be reduced simply to an open-minded attitude and an ethic of openness on the part of the developers. The statement that one is ‘sensitive to the grassroots’ does not necessarily imply that one really is, if one does not take the necessary measures and if one does not accept to integrate the grassroots’ teachings in one’s actions. To tackle the complexity of the issues of land law and natural resources management in given settings demands a rigorous research coupled to a dialogical attitude allowing the researcher to become aware of the diversity and the originality of the relevant world visions, logics, practices, strategies and stakes. This awareness must then be translated in order to be accessible to institutional actors of governance and of sustainable development. To promote participation entails making certain that it is not reduced to a simple hierarchical delegation of responsibilities from the ‘developers’ to the ‘developed’ where there is no place for the ‘developed’ in the elaboration of the project itself.28 It also entails creating and designing spaces of dialogue that stand up to the requirements of hybrid forums, which are the conditions of real participation and in which the questions of translation are central (see Callon, Lascoumes, Barthe 2001: 209ff.).

  • 29 See on these more radical pluralist horizons for example Eberhard 2002a, b and c and 2005b, Panikk (...)

27To walk the paths of dialogue is inherent to any approach that genuinely tends to be participative. It gradually opens up our awareness to the horizon of a pluralism of worldviews that may be far deeper than what is suggested in this book.29 Although shedding critical light on the question of land use, natural resources management and the environment, and although revealing a number of important issues, this collective research did not free itself from the point of view informed by the dominant vocabulary and grammar of social and human sciences, of politics and law. This was not its objective, but the dynamic has nevertheless contributed to sharpening our sensitivity to alterity and has demonstrated that a dialogue between different disciplines and between different cultures was possible and could go beyond the mere juxtaposition of discourses, to which the many instances of mutual enrichment and cross-fertilization that can be observed in the contributions testify.

  • 30 Already see in this perspective Eberhard 2005a and 2006.

28I hope that beyond the deepening of our understanding of the field of land use, natural resources management and the environment, this publication, by promoting a ‘South / South’ dialogue, even though the crossing of African and Indian perspectives was not only due to African and Indian but also to Africanist and Indianist researchers, will contribute to a decentring of our perspectives on governance and sustainable development, which remain largely dominated by the perspectives of the ‘North’. This decentering may allow us to rethink our questions in order to map out new possibilities for a life that respects man and his environment.30

29As this publication is the result of a collective work dynamic that was hosted in India in 2006, it seems appropriate to conclude this introduction with an Indian interpellation by Rajni Kothari (1990: 49-50, 63-64), one of India’s important political scientists of the last century:

30“Increasingly, such a quest for alternative systems of thought and being is making intellectuals turn to non-Western cultures known for long-standing humanist traditions and for integrated perspectives on the human condition. What is the role of the Third World in such a quest? (...) It would be a real tragedy if cultures strong in speculative thought and deductive logic were to fall prey to the lure of positivist science, imported from the West at a time when the world was in fact crying out for new worldviews and meaning and value systems. (...) First, modernity is not something that can be wished away. Both as a doctrine of life and a guide to prudence, and as a framework for attending to the affairs of society, it has shaped our world in a fundamental manner, so fundamental, indeed, that we so often call it the ‘modern world’. Modernity is not just Western or Occidental; it is part of us all. (...) Secondly, it is incumbent upon us all-in the West and in other regions-to relate this presently dominant tradition to other civilisational traditions and meaning systems, and to evolve a process of critical interaction between them. (...)

31To the western mind, science, like all knowledge, is an instrument of secular power for creating a good social order. We must reject this as at once inadequate and dangerous. It is dangerous because power as the end of knowledge usually degenerates into power of the few over the many. It is inadequate because creation of a good social order can be no more than a means, the end being the liberation and self-realisation of each being. We come here to the Oriental conception of knowledge as a means of seeking truth which, in turn, is a means of liberating the self. (In Oriental thought truth is not an end in itself.) This harmonises perfectly with the conceptions of diversity and decentralisation. But Gandhi’s basic principle must be borne in mind, namely, that such liberation is to be of all individuals, not only of the educated and the better-off. Such a conception rejects the dualism inherent in the Western paradigm and seeks the ends of individuals as well as of society in a composite philosophy of nature. With this also, incidentally, the discord between development and ecology disappears.”

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Notes

1 Understood as ‘human being’.

2 It should be noted that the naturalist premises underlying this approach are based on the big divide between nature and culture. These premises are in no way self-evident or universal. Philippe Descola (2005: 127-128) asks: "Is it still plausible to see the opposition between nature and culture as universal although its origin only dates back little more than a century? Must we (...) retain a division of the world that is thus historically determined in order to be aware of the cosmologies for which many civilizations still offer us living testimony, or that, consigned to the shelves of our libraries, only wait to be brought to life again through our curiosity?" His answer is negative and his call to reformulate our approaches "beyond nature and culture" in order to reflect the world’s diversity, without falling prey to the fascination of unity or the anathema against positive sciences, seems important in the contemporary context.

3 Even if we were alone, we would still need to invent a mode of relationship to our environment. See in this context, François Ost’s (2004: 205ff.) reflections on Daniel Defoe’s novel and on the mode of relation to the world in terms of the appropriation it conveys.

4 Whenever I write ‘Law’ with a capital ‘L’, I refer to the French idea of ‘juridique’ or ‘juridicité’, which goes beyond what we usually see as the law. From the point of view of the anthropology of Law, Law can be approached as that which lends form to the reproduction of societies and the resolution of conflicts in the domains a society considers to be vital. For further elaborations on this working definition, see Eberhard 2001 and 2002a.

5 All original French quotations have been translated into English by the author.

6 In French, there is an interesting move from approaches in terms of ‘environnement’ to approaches in terms of ‘milieu (Ost 1995; Papaux 2007). Both terms can be translated in English as ‘environment’, but in French the first rather refers to an environment that is outside us, which is somehow an object surrounding us, whereas the idea of ‘milieu’ emphasizes that we are in its ‘middle’, that we are part of it.

7 The French expression ‘juste milieu’ can be translated in both ways and thus refers to both of these dimensions.

8 The framework of ‘propriété’ comes close to the ‘private ownership’ paradigm in Common Faw and should not be equated to the Common Faw ‘property regime’. Generally speaking, it seems much more rigid and state-centered than the Common Faw counterpart.

9 It is not very easy to translate the concept of ‘patrimoine’ into English. It refers to the notion of ‘patrimony’ and ‘heritage’. The common heritage of humankind is translated into French as ‘patrimoine commun de l’humanité’. In the French context, ‘patrimoine’ permits approaches in terms of bundles of rights and duties that seem to come close to the Common Faw property approaches. Further, while speaking of a ‘patrimonial approach’, in a French mind an immediate link is made to the ‘common heritage of humankind’ approaches.

10 See also François Ost’s consideration of ‘Le patrimoine, un statut juridique pour le milieu’, ‘Patrimony, a legal status for the environment’ in Ost 1995: 306ff.

11 Also see Barrière 2005.

12 On the issues of urban explosion and globalization, see Volume 14 2007/2 of Alternatives Sud, which is entirely devoted to this matter.

13 See the analysis by Callon, Lascoumes and Barthe on the emergence of hybrid forums and their issues (2001). The dialogical relationships and the importance of the paradigm of translation do indeed profoundly challenge our modem approaches of science and politics. On the relationship between science and environmental law, see Gutwirth 1996.

14 This point can be illustrated by Stieglitz’s (2002) critical analysis of structural adjustment plans imposed by the International Monetary Fund on numerous countries, which have turned out to be complete disasters. According to this author, the blindness of the IMF towards certain realities was due to the fact that action was not based on ‘neutral’ economic and financial analysis, but rather on an ideology that does not suffer contradiction.

15 On the ambiguities of the concept of governance, see for example Arnaud 2003: 330ff. and Baron 2003.

16 On the ambiguity between science and ideology and on the stakes of a field work that escapes ideological conditioning, see the reflection of Frank Muttenzer (2002) on the indiscernible governance of biodiversity in Madagascar. Also see, more generally, on the ideologization of ‘governance’ through the promotion of ‘good governance’, Arnaud 2003.

17 As for example crossing economic, environmental and social logics and expectations on local, national, regional and global levels.

18 A recent publication of the international research dynamic on ‘Law, Governance and Sustainable Development’ based at the Facultés universitaires Saint Louis in Brussels (see Eberhard 2005a and 2006) that co-organized the present research, bears witness to this, as well as the research on ‘translation’, which is now being carried out in its Séminaire Interdisciplinaire d’Études Juridiques (Interdisciplinary Seminar of Legal Studies).

19 A similar dialogue in the framework of the ‘Law, Governance and Sustainable Development’ dynamic is foreseen between Indian and Chinese researchers. Further, an international conference on ‘Law, Governance and Sustainable Development. The New Paths of Responsibility’ bringing together scholars from five continents, is scheduled for end of October 2007 at the FUSL.

20 Apart of the members of the Advisory Committee, the list of whom can be consulted at the beginning of this book, it is appropriate to extend my thanks here to: T. V. Kamalambal, who laid out all the contributions, Tai Walker, who proofread the English texts; N. Ravichandran, who designed the book cover; the IFP, Alain Karsenty, Manuela Lesage and Jean-Pierre Muller, who provided the photographs for the book cover; and to all those who have contributed in one way or another to the organization of this collective research dynamic. I would like to particularly thank David Annoussamy (AFAD / Société de droit comparé), Kandasamy Chandrasegaran (Dr. Ambedkar Government Law College, Pondicherry), Marie-Claire Foblets (AFAD), Abdul Razak Kaffur Khan (Dr. Ambedkar Government Law College, Pondicherry), Etienne Le Roy (AFAD), Jean-Pierre Muller (IFP) and Laurent Pordié (IFP) for their support.

21 The participants included anthropologists, economists, geographers, lawyers, political scientists, judges and urbanists. This explains the lack of uniformity of the language used in the different contributions, even while pointing to similar phenomena. For a synthesis of the different political, economic, legal and anthropological approaches to ‘property’ and on the dangers of selective cherry picking of one discipline from others to sustain its argument, see von Benda Beckmann & Wiber 2006: 4ff. On the methodological requirements for an interdisciplinary approach to land law and natural resources management, see for example Le Roy, Karsenty, Bertrand 1996, especially pp. 185ff.

22 For a presentation of modern Indian Law and its challenges, see for example Annoussamy 2001, Galanter 1992, Menski 2003. See also Menski 2006.

23 On these questions the reader may refer to the works of Pierre Legrand (see for example Legrand 1999). This author highlights the issues of legal translation and of an approach to comparative law that is sensitive to alterity. He illustrates these issues in his comparison of the Civilist and the Common Law traditions. Concerning the challenge of alterity in Law, see also Eberhard 2001 and 2003.

24 See in this context the important reflections of Sally Falk Moore on semi-autonomous social fields, which she develops and illustrates in Moore 1983.

25 And it is certainly not an entity of harmonious coexistence as presented by a certain ‘small is beautiful’ or ‘local is beautiful’ ideology, which pervades a large part of the ‘participation’ discourses.

26 On the arena and the strategic struggle of different groups in local development, see Olivier de Sardan 1995: 173ff.

27 It should be noted that we should also have avoided these terms here, since analyses in terms of ‘global/local’ and ‘top-down/bottom-up’ contribute to maintaining a dualism in the organization of data and of our discourses, which is problematical and which some authors try to avoid by coining new terms such as ‘glocal’ (Arnaud 1998), ‘study through’ (Randeria 2002). These divisions reproduce the big divisions of modernity we mentioned earlier between subjects and objects, the universal and the particular, theory and practice, etc. They also inscribe us in the principle of encompassing the contrary elaborated by Louis Dumont. I have described some of the implications of this for Law in Eberhard 2001, 2002c and 2003.

28 See for example Campbell 1997, Eberhard 2006: 145ff., Eberhard 2007, Rahnema 1997.

29 See on these more radical pluralist horizons for example Eberhard 2002a, b and c and 2005b, Panikkar 1982 and 1990, Vachon 1997 and 1998.

30 Already see in this perspective Eberhard 2005a and 2006.

Notes de fin

1 This introduction is a translation / adaptation from the original French introduction and is thus originating from a French perspective. It takes a French approach to ‘fonder’, defined as ‘land law and natural resources management’. It reflects the evolution of the problematique of the latter from a French perspective. The difference in viewpoint is not only linguistic but is also rooted in the perspective of a civil law system that is quite different from the Common Law view, and in social sciences with a different cultural perspective. This should be kept in mind when reading the articles.

© Institut Français de Pondichéry, 2008

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