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Legal Pluralism as a Policy Option: Is it Desirable, Is it Doable?

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Type: Conference Paper
Author: McAuslan, Patrick
Conference: UNDP-International Land Coalition Workshop: Land Rights for African Development: From Knowledge to Action
Location: Nairobi, Kenya
Conf. Date: October 31-November 3, 2005
Date: 2005
URI: http://hdl.handle.net/10535/218
Sector: Land Tenure & Use
Region: Africa
Subject(s): indigenous institutions
land tenure and use
Abstract: "Legal pluralism in relation to land exists in many countries in Africa. The basics are well known. Rather than rehearsing all the usual arguments for and against legal pluralism, the first part of this paper sets out instead what can be seen to be the preconditions for workable pluralism. The paper then goes on to address two much more substantial issues. First, to offer a slightly different analysis of the relationship between customary tenure and statutory tenure, which may help explain why - despite evidence that legal monism (a single, unified system) does not work - governments continue to try and introduce it and external forces (World Bank, the High Level Commission on Legal Empowerment of the Poor, various donors) have over the years offered prescriptions for 'modernising' land tenure which implicitly assume not merely the benefits of monism but of a homogenisation of national land laws, a sort of international monism. Secondly, the paper goes on to focus on an area of law very much neglected in discussions of pluralism and legal empowerment of the poor; the provision of secured credit via mortgages: can there be pluralism in this area of law or are we forced to accept monism here too?"

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