Legal empowerment of the poor: with a little help from their friends?

Abstract

In 2005 the initiative to create a High Level Commission on the Legal Empowerment of the Poor, to be co-chaired by Peruvian economist Hernando de Soto and former US Foreign Affairs Secretary Madeleine Albright, was launched with strong support from the Norwegian government. This article first reviews some of the debate surrounding the initiative, giving special attention to the role of Norwegian civil society organisations that questioned central assumptions of the Commission as well as its composition and working procedures. Next, the article looks at the propositions made by the Commission on the Legal Empowerment of the Poor and argues that it was very much a top-down affair that called on those in power to behave in favour of the poor and relegated organisations of the poor and civil society to a supportive role. Issues of political power thus were downplayed. This also is reflected in the fact that the question of (re)distribution of assets is hardly addressed by the Commission. Questions of power or the distribution of assets were sidestepped by focusing primarily on the legal dimension and formalisation. And, although the Commission mentions macro-economic conditions it fails to critically analyse the conditions that account for poverty and informality, which basically are attributed to legal arrangements. Such an analysis would require a (critical) political economy perspective.

Keywords:

• empowerment (legal, political)
• property rights
• formalisation
• redistribution
• political economy

Notes

¹In a previous article (Assies 2009) I have sought to sketch out some aspects of the debate on land tenure.

²The ‘High Level’ prefix was subsequently dropped, probably in part for its elitist connotations though, as I will show below, the CLEP remained a rather elitist affair.

³In this article I will draw on some ideas developed in the course of the research project ‘The Mystery of Legal Failure’, based at the Van Vollenhoven Institute of Leiden Universities' Faculty of Law, the Netherlands. In the context of this project, country and case studies were carried out regarding Ethiopia, Ghana, Namibia, Senegal, Bolivia, Mexico, China, and Indonesia, and sought to cover rural, peri-urban, and urban situations (see also Assies 2009). The views expressed here are those of the author.

⁴The original subtitle was La revolución informal (translated as ‘The invisible revolution in the Third World’) but by the early 1990s, for new editions, it was changed into ‘The economic answer to terrorism’.

⁵De Soto used the term ‘mercantilist’ to refer to a politically administered economy dominated by ‘redistributive combines’ and drew a parallel with fifteenth to nineteenth century European economies, suggesting that overcoming ‘mercantilism’ was only a matter of following the European path a century later. However, in line with the neoliberal wave that gained force in the 1970s, the actual object of critique is the ‘national developmentist’ model of import-substituting industrialisation (ISI) that had emerged in the wake of the 1929 crash and was later formalised through the work of the UN Economic Commission for Latin America and the Caribbean (ECLAC). I will return to some aspects of this issue below.

⁶Instead of taking pigs to the market and trading them one by one, in the West traders take representations of their rights to pigs to the market (de Soto 2000, 62). The same goes for other assets, such as land or houses, and this allows them to function as live capital, for example by using them as collateral for credit.

⁷The website contains a series of documents from the CLEP, news briefs, and critical comments as well as a number of academic articles on formalisation of land rights. It also contains critical information on two programmes for formalisation of land tenure in Tanzania and Guatemala that initially were intended to be pilot programmes linked to the CLEP, but then were carried out – at least in the case of Tanzania, the Guatemala programme does not seem to have really come off the ground due to local objections – by de Soto's Lima-based Instituto Libertad y Democracia and a local institute set up for the purpose, with funding from the Norwegian government. Evaluations of the pilot programme in the Handeni District in Tanzania, available on the website, suggest that it led to conflicts, land grabbing, and the exclusion of vulnerable groups such as women and pastoralists. In 2007 the Norwegian Forum for Environment and Development summarised its views and critique of the CLEP approach in a briefing paper that focuses on collective land rights, agrarian reform, women's land rights, indigenous peoples, and urban areas (FoRUM 2007).

⁸For comments on Vía Campesina, see Borras (2008).

⁹The letter was signed by some 120 national and international organisations from over 40 countries, as well as by a series of individuals. See www.landrightswatch.net.

¹⁰The CLEP (2008a, 33, 62–3) draws attention to less orthodox ways to empowerment such as community organisation and the use of more accessible forms of legal services such as legal clinics and paralegals. In this way the CLEP took some relative distance from what has been called the Rule of Law Orthodoxy (Golub 2003), which focused primarily on the performance of courts and other legal institutions and consequently poured a lot of money into their modernisation without paying much attention to other features such as organisation of the poor, rights awareness, collective action, and addressing the power relations that permeate judicial institutions. However, the move away from orthodox approaches remains a tepid one. See also Banik (2009, 128) and Golub (2009, 110).

¹¹The introduction to the working group reports notes that ‘the chapters contained in this volume reflect the views of the respective working group members, though not necessarily the view of the Commission’ (CLEP 2008b, v). In this article I therefore focus on the main report (CLEP 2008a) and the article by Naresh Singh.

¹²Some reports are available at: www.undp.org/legalempowerment/reports/concept2action.html

¹³This smacks of ‘political voluntarism’ which de Soto so vehemently denounced in his earlier book (de Soto 2002, 237).

¹⁴The Norwegian Forum for Environment and Development commented, ‘can “empowerment” be forced upon marginalised groups by initiatives emanating from the political elite? Even if such a process contributes to improvement, is it really empowerment?’ (FoRUM 2007).

¹⁵Note that the CLEP estimates ‘informal capital’ while de Soto (2000, 36) refers to urban and rural dead capital in real estate. According to his calculations ‘the total value of real estate held but not legally owned by the poor of the Third World and former communist nations is at least $9.3 trillion’ (de Soto 2000, 35). In this calculation he includes legally owned lands of indigenous communities or agrarian reform sector entities (e.g. in the case of Mexico) where restrictions on the marketability (or ‘fungibility’) of land apply. If there are restrictions on the ‘fungibility’ of land titles, de Soto and his Instituto Libertad y Democracia classify them as ‘extralegal’, which then tends to be smoothly conflated with ‘informal’. For a comment see Assies (2009, 575).

¹⁶The CLEP (2008a, 67), however, also points to the use of movable property as collateral.

¹⁷‘The Mystery of Legal Failure? A critical comparative examination of the potential of legalization of land assets in developing countries for achieving real legal certainty’ at the Van Vollenhoven Institute of Leiden University, the Netherlands, between 2005 and 2008. We looked at land law regimes and the way they work out on the ground in a variety of countries. We understood legalisation as ‘a process whereby possession (including use) and management of a tract of land are incorporated into a national legal system – either directly, or indirectly through recognition of community-based rights – whereby the rights and obligations of individuals or collective entities are defined’. We thus adopted a broad definition and looked at various forms of legalisation or formalisation.

¹⁸This is not meant to deny the proactive stance taken by some sectors of the judiciary in taking an expansive human rights approach as a frame of reference. See, for example, ILSA (2004).

¹⁹Indeed, the distinction has been challenged, as was the Latin American marginality thesis, by pointing out the articulations between the formal/central sectors and the informal/marginal sectors (see, for example, Fernández-Kelly and Shefner 2006).

²⁰Note that in the working group report (CLEP 2008b, 75) it is noted that profound controversy existed about the respective roles of the state and the market.

²¹Interestingly, in its working group report on property rights the CLEP (2008b, 89) notes that ‘increasing access to, and the locally beneficial productivity of natural resources, can be achieved by … [among other things] ensuring that customary forms of tenure can evolve towards more formal types of tenure through well defined and transparent processes, if and when, in the judgment of those concerned, the benefits of more individual ownership exceed the costs’. And in a footnote the report refers to ejido lands which, since 1992, can be transformed into fully alienable freehold, but notes that only a few ejidos have opted for this transformation and argues that, ‘even at high levels of per capita income, many users see benefits from maintaining communal relations to be greater than those from full individualisation of rights’. Though that conclusion may contain a grain of truth one should also note that it is rather awkward to represent the ejido as a ‘customary form of tenure’– the Mexican ejido was a twentieth century invention in the context of the agrarian reform, and its organisation and tenure structure were rather formal (see Assies 2008).

²²These fall under the rubric of de Soto's (2002[1989]) ‘redistributive combines’ of ‘mercantilism’. Actually, a more appropriate approach can be found in the debate over Latin American corporatism as a form of including and governing the ‘masses’ in a context of incipient industrialisation and increasingly rapid urbanisation. Prime examples, each with its specific features, would be the governments of Getulio Vargas in Brazil, Juan Perón in Argentina, Lázaro Cárdenas in Mexico, or, for that matter, the post-1952 governments of the Movimiento Nacionalista Revolucionario (Revolutionary Nationalist Movement, MNR) in Bolivia. In fact, such policies of inclusion – and exclusion – contributed to the development of the distinction between a ‘formal’ and an ‘informal’ sector, but it is way beyond the scope of this brief comment to discuss the intricacies of these policies. I would like to note that in discussing formality and informality in Latin America we also should pay attention to the debate on ‘marginality’ that developed in the 1970s.

²³Centeno and Portes (2006, 40) note that, ‘the meaning of informality has changed markedly in the neoliberal era. In the past, it was the sector where those excluded from the modern economy found employment; in the present it has become a place for those escaping the degradation of formerly secure jobs’.

²⁴I think the term was coined by Lipietz (1985).

Additional information

Notes on contributors

Willem Assies

I would like to thank the editors of The Journal of Peasant Studies and anonymous reviewers for their very helpful comments and suggestions. They provided a lot of ‘food for thought’ which sometimes proved difficult to digest at short notice, so please do not blame them for the content of this article, which is my responsibility.