Legal Pluralism, Gendered Discourses, and Hybridity in Land‐titling Practices in Cambodia

DOIhttp://doi.org/10.1111/jols.12023
AuthorMikael Baaz,Mona Lilja,Allison Östlund
Publication Date01 Jun 2017
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 2, JUNE 2017
ISSN: 0263-323X, pp. 200±27
Legal Pluralism, Gendered Discourses, and Hybridity in
Land-titling Practices in Cambodia
Mikael Baaz,* Mona Lilja,** and Allison Ústlund***
This article describes and analyses the tensions, ambivalence, and
hybridity that prevail in the nexus between discourses of gender and
the legal pluralism of the new, formalized, and customary ways of
handling land titles. Based on empirical research in Cambodia, it
reveals a number of mechanisms, challenges, and inconsistencies in the
practice of land-titling. Foremost, the practice of titling seems to be
highly informed by local discourses of marriage, family, gender, and
age, which all affect to whom land is assigned; this leaves a hybrid
construction in the nexus between statutory law and customary prac-
tices. The article departs from this observation and adds three contri-
butions ± on a theoretical level ± to existing research: by incorporating
the dimensions of discourse analysis and legal hybridity, by linking the
concept of legal pluralism to the process of hybridization, and by
introducing the notion of hybridity of implementation as a supplement
to hybridity of law.
200
*Department of Law, University of Gothenburg, Vasagatan 1, 411 24
Gothenburg, Sweden
mikael.baaz@law.gu.se
** Department of Sociological and Psychological Studies/Sociology,
University of Karlstad, Universitetsgatan 2, 651 88 Karlstad, Sweden and
School of Global Studies, University of Gothenburg, University of
Gothenburg, Konstepidemins va
Èg 2E, 405 30 Gothenburg, Sweden
mona.lilja@gu.se
*** Faculty of Law, Economy and Finance, University of Luxembourg, 4 rue
Alphonse Weicker, L-2721 Luxembourg, Luxembourg
allison.ostlund@gmail.com
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
INTRODUCTION
Cambodia is a fast-changing Asian country that is currently undergoing
profound social and economic transformations. One illustrative example of
this process is the reformation of practices of land rights and land-titling.
1
Considering that Cambodia has a recent history of land resettlement, forced
evictions, and a (dramatic) rise in land prices due to urbanization and
development,
2
individual enforceable land ownership is today viewed as a
potential key asset of both the urban and rural poor.
3
This development has,
among other things, resulted in the initiating of several land reform
programmes. The chief aim is to replace customary practices of land-titling
by more formalized ones that are governed by (western-inspired) statutory
law. The previous methods of divide-and-share, however, do not disappear
automatically just because the government imposes new regulations. Instead,
the systems do not only exist side-by-side (`legal pluralism') but also merge,
thereby creating `hybrid' legal practices of land-titling.
This article is inspired by post-colonial theorists such as Homi K. Bhabha
and Iris Young as well as some of the scholars,
4
including Elizabeth M.
Bruch, Rosa Freedman, and Sally Mary Eagle, who have used these ideas
and insights in legal scholarship.
5
Of particular interest is the concept of
201
1 A. Kent, `Global Change and Moral Uncertainty: Why Do Cambodian Women Seek
Refuge in Buddhism?' (2011) 23 Global Change, Peace and Security 405; B.H.S.
Khemro and G. Payne, `Improving Tenure Security for the Urban Poor in Phnom
Penh, Cambodia: An Analytical Case Study' (2004) 28 Habitat International 181.
2 Khemro and Payne, id., pp. 182±3.
3 K.W. Deininger, `Land Policies for Growth and Poverty Reduction: Key Issues and
Challenges Ahead' (2005) Catastro 173±80.
4 See, also, M. Baaz and M. Lilja, `Understanding Hybrid Democracy in Cambodia:
The Nexus Between Liberal Democracy, the State, Civil Society, and a ``Politics of
Presence''' (2014) 6 Asian Politics and Policy 5; M. Lilja, `Discourses of Hybrid
Democracy: The Case of Cambodia' (2010) 18 Asian J. of Political Sci. 289; M.
Lilja, `Globalization, Women's Political Participation and the Politics of Legitimacy
and Reconstruction in Cambodia' in Beyond Democracy in Cambodia: Political
Reconstruction in a Post-Conflict Society, eds. J. O
Èjendal and M. Lilja (2009); I.
Young, `Hybrid Democracy: Iroquois Federalism and the Postcolonial Project' in
Political Theory and the Rights of Indigenous Peoples, eds. D. Ivision, P. Patton, and
W. Sanders (2000); H.K. Bhabha, `Culture's In-between' in Questions of Cultural
Identity, eds. S. Hall and P. du Gay (1996).
5 E.M. Bruch, `Hybrid Courts: Examining Hybridity Through a Post-Colonial Lens'
(2010) 28 Boston University International Law J. 5; R. Freedman, ```Third
Generation'' Rights: Is there Room for Hybrid Constructs within International
Human Rights Law?' (2013) 2 Cambridge J. of International and Comparative Law
938; S.E. Merry, `Legal Pluralism' (1988) 22 Law & Society Rev. 869. See, also, for
example, P.S. Berman, `Global Legal Pluralism' (2010) 80 Southern California Law
Rev. 1135; D.M. Trubek and L.G. Trubek, `New Governance and Legal Regulation:
Compleme ntarity, R ivalry and T ransform ation' (200 6) 13 Columb ia J. of
International Law 539.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT