Toerbeurtrijstbouw : individuele en collectieve rechten in de landbouw van Kerinci in Sumatra, Indonesië
Ven, J.W. van de - \ 2006
Wageningen University. Promotor(en): F. von Benda-Beckmann. - [S.l. ] : S.n. - ISBN 9789085044727 - 209
eigendomsrechten - gemeenschappelijk bezit - overerving van eigendom - landbouwgrond - voedselgewassen - rijst - boeren - boerengezinnen - indonesië - sumatra - property rights - common property resources - inheritance of property - agricultural land - food crops - rice - farmers - farm families - indonesia - sumatra
In Kerinci, on the
In Kerinci the standard mode of exploitation of inherited rice fields is gilir ganti or time-sharing. In essence, this means that heirs and co-owners of an inherited estate do not grant each other permanent, but only temporary rights of exploitation to rice fields. Time-shares to use the plots are distributed among each other instead of the plots in their entirety. In Kerinci such an individual time-share to use a certain plot of land to grow rice is called a giliran . A giliran always lasts for one year and runs from September to September. The time interval between the years that an individual heir is allowed to take his or her turn to one or more plots of the inherited estate is determined by the total amount of plots that make up the estate as well as by the total number of heirs. When there are many heirs and only a few plots of sawah , individual heirs will have to wait several years before they can take their turn, but when sawah are abundant the interval between the turns may be brief. For the next generation of heirs, the inherited giliran are equally distributed among the heirs in another set of time-shares.
Since inheritance in Hiang is a post mortem affair, the actual owners of the time-shares always belong to the oldest living generation. Long before actual inheritance, the giliran and other fields of the properties to beinherited,are therefore often already used by the children and grandchildren of the owner. An arrangement between giliran -owners and giliran -users practised most widely in this respect is a type of sharecropping by which costs and yields are split evenly ( bagi dua ). As time-share owners tend to anticipate the future, they often arrange for a settlement with their (grand)childrenthat mimics the model of time-sharing and that creates a shadow system of rotation on the level of use. In addition, private arrangements between brothers and sisters occur on the level of giliran -owners. When, for instance, a brother is relatively well-off, it is not unusual for him to grant temporarily the use of his giliran to a sister, albeit without altering his inheritance position and that of his children. Borrowing a giliran is a strategy to bridge or to shorten the interval between two time-shares of poorer siblings. When all brothers and sisters need their giliran for survival they can deviate privately from the giliran schedule by pooling and sharing their giliran with one or two other siblings. In this way, production costs and rice yields are distributed more evenly over time. If the logic of the inheritance of giliran were continued indefinitely, Kerinci farmers would after three or four generations end up with giliran that have been used for 30 or 40 years. In practice, however, giliran of such a long duration do not exist in Kerinci. In Hiang the running time of giliran differs between three and six years, while the most common running time is three years. This is a consequence of the practice of selling and buying giliran within the circle of close relatives. The widespread practice of selling and buying giliran is one of the cornerstones of the system of gilir ganti , since it prevents time-shares from becoming too fragmented over generations. There are several ways to transfer giliran between heirs. They can decide, for example, to sell giliran inherited from father or mother to one or all of their parents' offspring. They can also decide that only one of the children will replace father or mother, and that only he or she will inherit the entire giliran . In that case, other heirs will have to be compensated either in money or through the exchange of other inherited assets. The most common strategy to transfer giliran among heirs, however, is for brothers and sisters holding together new inherited property to buy and sell each other's giliran in due course, which results in a gradual reduction of heirs and giliran holders. Furthermore, it must be noted that rice fields belonging to the individual property of the deceased father or mother may also enter the system of gilir ganti should the heirs so decide. Following the inflow of individual fields in the inherited estate, new time-shares may be created next to the inherited giliran of each generation. Following this mix of old and new giliran and due to the practice of selling and buying time-shares, the inherited properties in Kerinci that are exploited in the gilir ganti mode, are typically of an ad hoc nature as they are centredaroundclusters of sibling groups of one generation. In terms of property flows, then, the property of a certain generation is only related to the inherited estates of previous generations by the less economically valuable, but sometimes ideologically and strategically highly appreciated 'old' giliran .
The social effects of the continuation of inherited property estates and the exploitation system of time-sharing are twofold. First, inherited estates provide for a social security and livelihood system within families. Second, since most farming families in Kerinci are still owners and users of giliran in the gilir ganti system, most families also still have access to rice production. The overall effect of gilir ganti in Kerinci is that many families stay in rice cultivation as - part-time - owners of rice fields. As participants in the system of gilir ganti these families also have relatively easy access to sharecropping and other labour relations that provide for alternative means to grow rice when there is no giliran to be used. From this perspective gilir ganti is the single most important social institution of food security in Kerinci. Further, it can be argued that the continuation of gilir ganti in Kerinci does not hamper but, instead, facilitates the commercial management of agriculture. After all, growing rice in a regime of time-shares and commercial production do not exclude each other. On the contrary, by keeping more farming families in rice cultivation through gilir ganti , these families are able to take more commercial risks in the producton of tree crops.
The second category of collective property, the common property of the village territory, is characterized by a very different historical trajectory in Kerinci. In some villages in Kerinci, such as Hiang, the traditional village lands are still covered with forests. In most villages, however, theseforesthave already been transformed into dry fields ( ladang ) and orchards ( kebun ). This does not imply that there is a shortage of forests in Kerinci as approximately 60% of the territory of the Kerinci district still consists of forests. These forests surround the agrarian
Stacked law : land, property and conflict in Honduras
Roquas, E. - \ 2002
Wageningen University. Promotor(en): F. von Benda-Beckmann. - Amsterdam : Rozenberg - ISBN 9789051705829 - 263
agrarisch recht - boerengezinnen - vrouwen - man-vrouwrelaties - conflict - overerving van eigendom - gewoonterecht - honduras - eigendomsrechten - grondrechten - rechterlijke organisatie - agricultural law - farm families - women - gender relations - conflict - inheritance of property - customary law - honduras - property rights - land rights - judicial organization
Property conflicts have an enormous impact on relations between the members of farm households and their families. Given the long duration, frequency and intensity of these conflicts an investigation of how they arise and how they affect the daily lives of, and relationships between, landholders is certainly warranted. Conflicts over land visibly manifest themselves in destroyed fences, stolen crops, poisoned dogs, horses that are set free, bloody machetazos, hails of stones between children and murder. But there are also less visible symptoms of potential conflicts over property. Inside the walls of the farm household, hidden from public view, people discuss the consequences of migration or education on inheritance rights; they mull over the advantages and disadvantages of a land sale; they argue about the division of labour and they silently develop strategies to control income or products. These discussions and strategies generate and express conflicting views on how property rights should be distributed and who is entitled to obtain a particular right to property.
Through detailed studies of land conflicts in the Santa Bárbara district, the ambiguities of the legal framework, and practices in the court of justice, this book explores the question: What is it about law and norms that enables them to generate conflicts about property rights to land? Land rights do not by definition consist of legally recognised full ownership, hence instead, we research who claims to have what right to the land. The book is an effort to test the usefulness of the notion of 'stacked laws and norms' for a better understanding of the constellation of land rights and the emergence of conflicts.
Law experts and policymakers in Honduras tend to start from a 'law is reality' point of view, i.e. the goals of the law are achieved in practice by implementing the law. Starting from this perspective means that they find it difficult to deal with the unintended outcomes of the law, which they usually attribute to the law not being enforced, people having the wrong mentality or old-fashioned, customary practices. In the eyes of law experts and policymakers, property rights to land are an apparent 'disorder', a 'disorder' that plays an important role in the emergence of conflicts that has to be solved by implementing new laws.
I used the notion of stacked laws and norms to visualise the processes that create the apparent 'disorder' of land rights. This book has described three processes of law and norms stacking in property rights arrangements: in state law, in practices of land rights transfer from the state to landholders, and in inheritance practices. Firstly, state law stipulations regarding land rights are not consistent or coherent, and its meaning confuses landholders, but also lawyers, judges, and policymakers. Agrarian laws have continuously been changed, replaced, amended and re-amended, which creates ambiguity in their message and makes it unlikely that the meaning and practical implications of these changes have been clearly passed on to the involved people and agencies. Moreover, the relationship between Civil Code and agrarian law notions of property is ambiguous. Agrarian law stipulations incorporate Civil Code constructions as possession, occupation or adverse acquisition. There is no unanimous stand among law experts and policymakers about the validity of Civil Code property notions versus agrarian law stipulations in Honduras.
The process of stacking in state law becomes more clear by looking at practices of land rights transfer practices between the state and landholders in the village of El Zapote. The actual laws and legal articles are only one side of state regulation; the other side is that state agencies and officials interpret the law and create implementation rules during state interventions. Hence, metaphorically speaking, on top of the stacked legal regulations, they stack their own interpretations of the rules, which are adapted to the specific situation. Landholders, on the other side of the spectrum, interpret and adapt the parts of the law that they know or come in touch with, and they add their own norms to it as well. The different norms in the complex of stacked norms and laws do not completely merge and they do not become clearly demarcated hybrids. The renewed complexes of norms consist of the different elements that have been added in time and that can be distinguished and used by the involved landholders, national state agents and the municipality, or that may also be forgotten and disappear in the end. It is thus not a static situation; the process of stacking is continuous and will change the constellation of the complex.
With regard to inheritance, the book shows that people are actively involved in making, changing and adding new norms through their dialogues and endeavours, while striving for certain goals at certain moments. The result is a complex of stacked norms, different elements of which the actors in inheritance practices (landholding parentsandtheir offspring) use in their strategies to obtain what they want. They are aware of the existence of different norms and they seek to legitimise the norm that best suits their own aims. The whole process of stacking inheritance norms contrasts with stacking in reference to land rights, in which people do not deliberately try to develop new norms.
By using the notion of stacked laws and norms for describing norms about property and the land rights derived from it, I am able to describe the historical changes of these norms better. By deconstructing the empirical process of the stacking of norms as regard property rights to land, it has become clear that land rights arrangements are not 'customary', referring to a separate legal system that has developed in opposition to, and disconnected from, state law. It has taught us that landholders' notions of property coincide with civil code concepts of ownership and possession and that the rights that others consider as local or customary are derivatives of old Civil Code property concepts.
'Stacking' in this book is not just a notion to explore an empirical situation of disorder. Its main value as an analytical concept is that it clarifies how 'plurality' of norms come into being, as well as the structure of this plurality and the elements it consists of. In the complex of laws and norms, divergent legal concepts and interpretations and re-interpretations of these concepts are assembled and serve as a basis for rights and claims to land, whereby in time, new elements and interpretations are continuously added to the complex while other elements disappear from it. Sometimes one element is more important, and sometimes another. Furthermore, the notion of 'stacking' makes clear that the constellation of norms surrounding land rights is constantly changing; it is a never-ending process. This process does not create a disordered pluralism, an untidy and random heap of norms without any sense or logic, but it leads to a certain stacked structure in which the separate elements have not merged into a kind of fluid constellation. Its stacked character implies that social actors may be able to recognise the different elements and to use them for their own purposes. They distinguish between different elements and exchange them, reinterpret them or discard them.
State interventions in El Zapote have affected landholders' ability to maintain the idea that local property concepts are 'law'. Landholders have learnt from the clashes between their own norms and those of the state that the force of their own stacked constellation of property norms is limited. Although legitimate in their eyes, their own norms lacked validity vis-à-vis the state. The difference in how the state and landholders define property rights has distorted their relationship. The state itself, as the institution that defines and protects private property through its laws and legal system, has become an actor in land conflicts. Civil Code property notions are losing strength; the legitimacy of local property concepts has been seriously undermined and landholders have thus become even more insecure about their property rights.