Law, property rights, and social exclusion: a capabilities and entitlements approach to legal pluralism | Land Portal

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Date of publication: 
January 2002
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What are the effects of trends away from legal pluralism towards more uniform approaches to the law? This paper analyses the effects of legal changes in property rights for people's welfare and development in India. Sen's concepts of capabilities and entitlements are applied to study these effects in terms of changing rights regimes, and impacts on poor people's functioning arising from changes in livelihood options or a 'capabilities set'.Three areas are analysed:Land rights among tribal communities, focussing on the tendency to move away from pluralistic frameworks, which dilute the protective power of special land laws for tribal communities in the state of Andhra PradeshCommon property resources for subsistence of the rural poor, with comparative analysis of traditional norms for regulation and maintenance of such resources with newly introduced formal, and legal regulationsIntellectual Property Rights (IPRs) in agriculture, with several studies cautioning that developments in genetic engineering and biotechnology may pose significant dangers not only to biodiversity but also to protection of intellectual property rights of farmers and peasants in developing countries.The paper finds that:survival and livelihood strategies of the tribal people are threatened, and further marginalisation is likely if uniform property and land laws are introducednew rights regimes based on recognition of patents and internationally supported IPRs threaten the survival of farmers in the third world, by reducing their rights and ability to experiment and innovate, and investing such rights solely in corporationsThe author concludes that:pluralistic legal systems in the field of natural resources, especially in relation to property rights should be retained and developeda diversity of laws and rules vesting different kinds of rights in individuals and communities, enhances capabilities and entitlements for individuals and households, especially among the poor and the marginalisedsimply providing additional legal rights or providing legal status to customary rights is not the answer, as such simplistic measures can end up distorting the rights regimes in manners that disadvantage the poorit is equally important not to treat customary property rights as determinate sets of rules, traditional or customary rights exist in the context of specific legal traditions that are themselves embedded in distinct institutional frameworksin the context of a dynamic, changing society, what is important to recognize is that communities and households are able to better adapt themselves to change, and retain their entitlements, if they have the ability to negotiate, bargain, and reorganize relationships of production and exchange, this can occur only of there is flexibility permitted by a pluralistic legal systemit is not the relationship of people to land that determines their social relations, but rather it is the relationships between individuals that determines rules and laws pertaining to property ownership or land tenure

Authors and Publishers

Author(s), editor(s), contributor(s): 

D. Parthasarathy

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