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Elements of legal systems
Legal Element Purpose
Examples
Substantive rights
Clariies what your rights are, whether
they are political, civil, economic, social or
cultural rights.
the right to own or use a particular parcel of land
the right to access a parcel of land
the right to exclude someone from
your land
the right to not be discriminated against
Procedural rights
Enables you to exercise your substantive
rights – in other words, enables you to actually
claim, use and obtain the beneit of your
land rights or other substantive rights.
the right to obtain information about
decisions of the government or others that might impact on your
land or your land rights
the right to participate in a process to determine the land that is yours
the right to be consulted and to
give or withhold your free, prior and informed consent before the
government or other authority takes action that will afect your
land or your land rights
the right to complain when someone
is interfering with your right to your land and to have that complaint
heard and resolved through a fair and just procedure
Institutional responsibilities
Clearly allocates responsibility for
implementing and enforcing substantive
and procedural rights set out in the law.
Sets out in detail the institutions and
the processes and procedures through
which the rights will be implemented and
enforced.
authority to allocate land use rights for example through concessions
responsibility to ensure resources
are managed for the beneit of the community
institutions and procedures to
settle land disputes, such as a court or customary law tribunal
he objectives of the law will only be achieved when these three elements are working efectively and in an integrated manner. Too often, law reforms address
only substantive rights. For example, the law might state that communities’ customary land rights should be respected. However, if procedural rights and
institutional responsibilities needed to implement and enforce those rights are not considered, such law reforms are likely to remain ‘on paper’ only and so of no
beneit to communities in their day-to-day life.
Building blocks of la w
Key concept
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Implementation of law Government oicials or other authorities must take steps to
implement the
law – that is, to make the law work in practice. For land tenure laws, this may include putting in place procedures through which communities can
demarcate and register their land rights, have access to information about concession decisions or anything else that might afect their land rights, and
be consulted about decisions afecting their land. his equally applies where traditional authorities have control over allocation of tenure rights.
It is important to note that the existence of a right does not depend on its implementation by government or traditional authority. However rights
holders may not be able to fully enjoy their right if implementation steps are not carried out.
For good implementation, it is important that:
those responsible for implementing the laws, and other stakeholders in particular rights-holders such as communities are familiar with and able to
access and use the implementation process;
roles and responsibilities for implementing the laws are clearly allocated and deined;
there are adequate resources, including staf and know-how, to support
implementation processes and procedures.
Enforcement of law Where someone violates someone else’s rights, the law should authorise a
competent authority to interpret the law, to clarify the rights at stake and take action to protect rights that have been violated. Law enforcement is
most often thought of as police enforcing the law against criminals. But in the context of land tenure security,
law enforcement can also refer to decisions
taken by a court or a traditional institution like a village council, to require the government or other authority to ensure that those granted land rights
under the law can use and enjoy the beneits of their land and resources. Enforcement of land tenure means that, where a community or individual
rights-holder feels that the government or anyone else interferes with the ownership, use and enjoyment of their land, the rights holder can ile a
complaint through a well-deined and accessible complaints mechanism and the complaint will be fairly dealt by a law enforcement authority.
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Key concept
Key concept
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2.2 Diferent legal systems
here are diferent types or systems of law in the world, including customary law, statutory law, religious law, international law and regional law. hese exist and
function alongside each other. When developing legal reforms it is important to recognise the systems of law already operating, so that the reforms will make
sense to the people afected by the law and it with the lives they lead. For example, if my community owns and manages its lands and resources collectively
like many other communities in Africa and throughout the world it makes no sense to me for a new law to dictate that only individuals can own and manage
land and resources.
For the purpose of this Guide, we focus on three systems of law
3
:
customary law
statutory law
international and regional law
2.2.1 Customary law
Customary law consists of established community rules and processes governing the actions of community members and third parties or ‘strangers’. he
community develops and implements these according to generally accepted decision-making processes and institutions. Customary law determines how
communities own, use and manage their land and natural resources. Customary law may or may not be recognised by statutory law. However, it is not accurate to
regard customary rules as ‘informal’ as opposed to formal statutory law, because customary rules have deep cultural resonance and are developed and owned
by the community governed by them, according to their own decision-making processes and institutions.
Customary law systems are diverse and varied; each depends on its history and setting. Most African States include numerous distinct ethnic communities,
each with its own customary laws. Customary law is rarely rigid, static or ixed and will generally adapt to meet new needs and challenges. A key strength of
customary law is that each community’s customs are rooted in and respond to the particular history, cultural values and economic needs of that community.
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Other legal systems, such as religious law, are beyond the scope of this study, but their role in community land tenure reform should also be considered.
Implemen ta
tion enf or
cemen t D
iff er
en t legal syst
ems
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he customary law of the Vai people of north-western Liberia he Vai are one of around 16 ethnic identities in Liberia, and live in the
north-west of Liberia. As with many other rural groups, Vai communities have well established customary law governing where their customary lands
are, and rules governing use and management, including relations with outsiders ‘strangers’. Although these rules may vary even within the Vai
people and will change over time, this summary draws out some of the rules highlighted by Vai communities in Grand Cape Mount county.
Vai communities own their community land collectively, which means that it is generally not parcelled up into plots owned by individuals or families.
Some of the collective customary land areas e.g. forests are ‘common’ lands, i.e. areas that can be used by anyone from the community, e.g. for hunting
and gathering. Strangers may use those common lands only with the prior permission of the community.
Farming areas are organised by ‘quarters’, with sub-sections of the community restricting their use of crop lands to their own recognised quarters.
he quarter where my grandfather farmed his crops will be the quarter where I farm mine. Land is left fallow for an agreed number of years – reportedly
between 7 and 10 years. During this period the original user has the right to return. As an example of customary law evolving, these fallow periods may be
shortening in Liberia due to land shortage caused by population increase and encroachment on community land by third parties. If land is not used after the
fallow time, other community members from that quarter may use the land instead, to bring it back into use.
If a stranger wishes to use community land for farming and perhaps build a house, customary rules require him to ind a ‘stranger father’ in the
community who is willing to introduce him to the community and the customary ‘institutions’ including the chief, chair lady and the community
at large. his is a process of community adoption, rather than a property transaction. he customary rules are explained to the stranger. If he is
respectful and agrees to abide by those rules the community may decide to allow him to use some of the community’s land.
Initially, the stranger may be allowed to build a house and grow non- permanent crops like cassava, but not permanent crops such as fruit or rubber
trees. his process allows the stranger and the community to develop trust and acceptance over time and test whether the relationship is going to work.
If the stranger leaves, the house and any crops he has farmed will remain and belong to the community, emphasising the point that customary land remains
in the collective ownership of the community at all times. If the stranger stays
Case study
