Description:
"Over the past decade, Myanmar has undergone a rapid period of political reform as it has
transitioned away from a military junta towards a civilian and democratically elected government. This period has witnessed a series of land governance reforms, being pulled into
various directions by Myanmar’s pluralistic society and land use and tenure practices,
resulting in overlapping and conflicting policies and legal frameworks in land governance.
Struggles over control and access to land and territory are one of the most pressing political issues facing the new National League for Democracy (NLD) government, which won
a historical victory in the 2015 general elections under the leadership of Daw Aung San
Suu Kyi. Maintaining its broad base support and legitimacy largely hinges on the government’s ability to tackle pressing land governance issues, while dealing with various democratic, ethnic, and developmental crises that plague the country (Callahan 2003; Ferguson
2014; Grundy-Warr and Yin 2002; Willis 2013). The military and its cronies have engaged in
a long history of land grabbing that has sparked protests and civil strife (Aung 2015; Gee
2005; Jones 2014a; Woods 2011). Ongoing discussion on peace processes between ethnic
armed organizations and the central government and military are in large part concerned
with territorial boundaries of ethnic states and authority within them (Einzenberger 2016;
Hong 2017; Kramer 2015). Insecure peasant access to and unclear ownership over land,
due to the central government’s lack of recognition of customary land tenure systems,
has hampered prospects of rural economic development throughout the country
(Boutry et al. 2017; Huard 2016).
This paper looks at how farmers and state actors shape and reshape legal pluralism
within the context of dual authority, where both the Myanmar central government and
the Karen National Union1 (KNU), the latter being the leading political organization representing the Karen’s struggle for political self-determination, are responsible for land management in their respective, albeit overlapping, territories. It illustrates the ongoing power
struggle centered on the central government’s and the KNU’s interests and strategies to
increase the land area under their respective administration, and how this corresponds
with customary tenure systems and farmers’ views on land tenure security and strategies
to ensure their land rights. Two village case studies in Karen State are used to illustrate how
farmers shape their strategies to secure their land rights while navigating through the
blurred boundaries of competing legal systems and spaces, embedded in the context
of dual authority.
The paper looks at state spatiality as complex processes and practices of socio-spatial
regulation across scales shaping and reshaping state-society relations. Placing dual authority as one of the building blocks for state transformation, it illustrates how political authority produces rights, and vice versa (Lund and Rahman 2018), within the context of legal
and institutional pluralism. It shows how these processes and practices are rooted in the
production of political space, centering on farmers’ strategies to strengthen their land
rights, and how these are entangled in the central government-farmers-KNU power
relations. In particular, it looks at: (1) the conflicting legal frameworks pertaining to land
governance in the country; (2) how these legal frameworks are negotiated and appropriated at the village level through various means and institutional set up, including
how they interact with customary land rights; and (3) how it reflects back on and influences farmers’ land tenure security. Building on legal pluralism research (von Benda-Beckmann, von Benda-Beckmann, and Spiertz 1996; Moore 1986; Van der Linden 1989), we
argue that while inconsistent policies and legal frameworks leave the door wide open
for land expropriation, as powerful actors shop for suitable and applicable laws to serve
their interests, it also serves as an entry point for less powerful actors to increase their
room to maneuver and reclaim their rights. Here, rather than portraying inconsistent,
conflicting legal frameworks as merely a sign of a weak legal system in Myanmar’s land
governance, we position it as an entry point for farmers and local communities to fight
for their land rights.
Building on Mann’s definition of states as merely [consisting of] ‘some degree of authoritative rule making and some organized political force’ (Brenner et al. 2003, 125), we view
states as both sets of institutions and an expression of social power relations. As stated by
Jones (2014b, 146): ‘States are seen as being produced, transformed and constrained by
conflicts between social forces, … as they struggle for power and control over resources’.
2
Building on Brenner et al.’s (2003, 11) definition of states as ‘dynamically evolving spatial
entities that continually mold and reshape the geographies of the very social relations they
aspire to regulate, control and/or restructure’, we view state transformation processes as the creation of new political space and institutional emergence shaped by ongoing power
struggles and contestation between and within political actors across scales. Or, as stated
by Lefebvre (2003, 99): ‘State space hinders the transformation that would lead to the production of a differential space’. Here, state transformation is not limited to formal state
actors, but also includes other actors and institutions with statutory capacity. Or, as
stated by Lund and Rachman (2016, 1201): ‘The mutual constitution of rights and authority
takes place in many institutional settings … Government institutions are not the only source
of state effects’.
The paper contributes to the wider literature on legal pluralism and state transformation processes in two ways. First, it brings to light the blurred boundary between the
different forms of (legal) ordering (e.g. state law, customary law, religious law), and
thus between legal systems and spaces. It argues that while legal scholars tend to
view legal pluralism as the conception of different, yet interlinked legal systems and
spaces, they are in fact more than just a compilation of different legal orders. On the contrary, it illustrates the messy realities where boundaries between the different forms of
ordering are at best blurred, as actors and institutions transcend the different legal
systems and spaces in pursuit of their interests, reconfiguring the boundaries of those
spaces in the process.
Second, it presents the concept of dual authority as a theoretical underpinning to
unpack the politics of legal pluralism, centering on the question of ‘who makes the law’.
Current discourse on legal pluralism has highlighted the importance of power analysis surrounding the politics of inclusion and exclusion in the overall shaping of law-society
relations (Boelens, Bustamante, and de Vos 2007). However, it lacks a theoretical
concept to unpack the political power shaping and reshaping the plurality of legal practices (Barzilai 2008). Legal pluralism entails that different institutions can assume jurisdiction, depending on how they view and cope with the conflict situation emerging from
overlapping policies and legal frameworks. As stated by von Benda-Beckmann (1981,
145): ‘While actors in a dispute shop for various institutions of dispute settlement, institutions
also shop for dispute. Depending on which aspect of the dispute is emphasized, a different
institution can assume jurisdiction’. The case studies examined in this paper show how
jurisdiction itself is blurred by plural legal systems and state spaces of dual authority
that interpenetrate one another. As such, political authority and rights that emanate
from different power domains are in a constant state of flux. Rights can emerge and
submerge, depending on what legal system is referred to as well as what authority and
legitimacy actors attribute it in a particular place and time. It highlights the centrality of
political space and institutional emergence in state transformation processes through
the illustration of how ‘state space is represented and imagined both in geopolitical
struggles and in everyday life’ (Brenner et al. 2003, 7). Additionally, it raises the question
as to what ‘state law’ and ‘non-state law’ is and where the boundaries lie in the context
of multiple political spaces and institutions competing for authority (Sikor and Lund
2009), as manifested in the context of dual authority (Huard 2016).
Taking two neighboring villages in mixed government-KNU controlled areas in Karen
state as a case study, the paper shows the localized dynamics that shape the creation
of new political spaces, manifested in states actors’ strategies to increase political authority
and farmers’ strategies to strengthen their land rights, and how the two are intertwined
within the established, yet ever changing geography of state regulation..."
Source/publisher:
The Journal of Peasant Studies
Date of Publication:
2019-10-31
Date of entry:
2021-08-07
Grouping:
- Individual Documents
Category:
Countries:
Myanmar
Language:
English
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Format:
pdf
Size:
2.13 MB
Resource Type:
text
Text quality:
- Good