Bringing the Law Back In:
Essays in Land, Law and Development
by Patrick McAuslan
Ashgate (2003), Aldershot,
ISBN: 0 7546 2060 3
Dr Robin Palmer
Land Policy Advisor
Oxfam Great Britain,
During a workshop on women's land rights in Southern and Eastern Africa in Pretoria in June 2003, a number of participants expressed disquiet at the fact that new land laws in Africa were frequently drafted by foreigners, who were invariably men. One of the prime suspects, Patrick McAuslan, was due to attend, but was detained on business in Lesotho. Had he come to Pretoria, it would have been interesting to hear him engage in debate on this subject, not least because the key role of foreign legal drafters like himself and Professor Okoth-Ogendo has been little open to public gaze.
So it was with great interest that I turned to McAuslan's new book, expecting, at the outrageous price of GDP 60, that I would find therein some critical reflective thoughts as he looked back over his long and fascinating career, combined with legal guidance to would-be land reformers and some personal assessment of the impact of his extensive work as a consultant in many parts of the world. But Bringing the Law Back In does not provide this - or does so only in small doses. Instead it reproduces 14 articles, reports and conference papers which McAuslan has written over the past 20 years (the earliest dates from 1982) on land, law and development in Commonwealth countries, divided into sections on 'opinions' and 'operations'. Some are general - eg the role of law in land policy, in urban land planning and land markets; others are specific case studies - eg on the Uganda Land Act 1998, and the urban poor in Bangladesh. This was perhaps a valuable thing to have done, but for (say) a law student in Tanzania it could surely have been done more cheaply and accessibly by posting them on an appropriate website, where they could also have been of great value to civil society land activists. But having decided to compile a book of this kind, one could surely have expected more from the author than a three-page preface (no introduction), and more from the publisher than a very skimpy five-page index.
That said, despite the structure of the book and the inevitable duplication and repetition it brings, there is a great deal to admire and to learn from, and a wealth of knowledge and experience, of wit and wisdom displayed. There is also much that could be of practical benefit to civil society groups pressing for pro-poor land reform, with whom McAuslan is clearly in sympathy, though this is not easy to extract. As a non-lawyer, I found most compelling the author's sense of the importance of history, especially social history. The two-chapter study on the making and failed implementation of the Uganda Land Act 1998 (which might usefully have been rolled into one) are steeped in the country's complex land history and concludes that 'while the law can be reformed, history cannot' (p 304). There is also much sharp analysis of the heavy and top-down imprint of colonial legacies in land law and in segregationist urban planning. McAuslan is excellent and acerbic about how laws and structures designed for Victorian ruling classes (and fears of the urban mob and the urban riot) found easy acceptance among colonial rulers and their post-colonial successors. He also writes about how the legal profession in former colonies instinctively distrust any proposed deviation from metropolitan models. He stresses that urban elites in poor countries have little incentive to reform a system which works to their benefit. There is much gloomy analysis of power structures which disempower the poor, but also discussion of specific cases where breakthroughs have occurred, and of the importance of NGOs being ready with new ideas and new policies to seize 'moments of transition' (p 382) - one thinks here of the Kenya Land Alliance, and it will be interesting to see whether Kenyan bureaucrats will be as successful as their Ugandan counterparts in resisting and sabotaging land reform. He makes the important point that governments which come to power owing nothing to existing bureaucracies (Uganda, South Africa) are different in their approaches to law making and decentralisation. At times he reflects about how value-laden law is, continually stressing how deeply embedded it is in social struggles within society and so is used in urban areas as 'a weapon in the political struggle for adequate resources' (p 36).
A good deal of this collection has an urban focus; there is an interesting chapter on why the adaptation of a successful British town and planning law proved a failure in Africa and Asia. So it would have been fascinating to see McAuslan engage properly with what he described in a paper to a World Bank conference in April 2002 as the 'immensely important theses' of Hernando de Soto, but the fact that this is a collection of papers rather than an integrated book sadly precludes this. A 'proper' book too would surely have had more to say on gender, on donors and on consultants (instead we get the odd section on women's land rights and the odd snipe at donors and consultants). I would also have welcomed some engagement with the writing of Martin Chanock, whose name remains mis-spelt, though there has been a little judicious updating elsewhere, and with the potential of new surveying technologies. There are some fascinating things tucked away in some of the footnotes, and aficionados will enjoy the ongoing snipings at Issa Shivji. I believe he is right to castigate Shivji's organisation Hakiardhi for refusing to engage in the process of critiquing Tanzania's draft land laws. He is clearly sceptical about 'free' land markets and stresses the need in Africa, as previously in Asia, for regulation to protect the land interests of the poor.
The place where McAuslan reflects most on his own role is his self-assessment in the chapter on the implementation of the Uganda Land Act 1998 (pp 341-5) and viewed from the perspective of his role as leader of a Department For International Department (DFID)-funded project to assist implementation of the Act. He says the project was 'doomed from the start' because key actors ignored the political context and the fact that the Act threatened to turn upside down the cosy world of land professionals. This is a fascinating story of failure and the inner workings of a bureaucracy, and the complexities of capacity building, and contrasts with the success story of the relatively open and democratic process of passing the Act, described in the previous chapter. It whets the appetite for the book which I hope Patrick McAuslan will one day find the time to write.
Citation: Palmer, R, 'Bringing the Law Back In: Essays in Land, Law and Development' by Patrick McAuslan, Book Review, Law, Social Justice & Global Development Journal (LGD) 2003 (2) <http://elj.warwick.ac.uk/global/2003-2/palmer.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_2/palmer/>