Getting real: a view from below
The danger with ‘real legal certainty' is that, just as with legal certainty proper, it turns into an inward-looking perspective. It becomes concerned only with state institutions and how they interpret and apply the law.
Otto's work on land registration shows that he was acutely aware of the danger of such an interpretation of state-provided real legal certainty and hence his emphasis on ‘real' instead of putative users of land rights (Otto 2009; Otto and Hoekema 2012). The chapter by McCarthy, Robinson, and Dhiaulhaq voices similar concerns. It introduces the term ‘adverse formalisation' to denote the process of people, specifically smallholders, losing their land tenure. This loss occurs as a result of state efforts to realise the state's self-proclaimed rights to land through mapping and distributing concessions to large plantations. Drawing on examples from Indonesia's outer islands, they argue that scaling up the protection of rural smallholders through international certification (and other ways of regulating commodity chains) is unlikely to bring relief.This point is elaborated in the chapter by Persoon and Minter. They examine the effects of one such mechanism (First, Prior and Informed Consent [FPIC] procedures) on the protection of hunter-gatherers against the loss of land and livelihood. FPIC serves to involve users in the decision-making process concerning the future use of their land and resources. FPIC now has a solid basis in international law and is promoted worldwide by major international development organisations, like the World Bank. However, in practice, FPIC turns out to be difficult to implement since the process can easily be manipulated, especially when vulnerable groups such as hunter-gatherers are involved.
McCarthy, Robinson, and Dhiaulhaq suggest that the most viable way to address adverse formalisation is to develop special policies to accommodate the needs of the poor and vulnerable without relying too much on general mechanisms.
On the one hand, this solution is very much in line with the emphasis Otto puts on context and the need to carefully assess a situation before committing to an intervention. But on the other hand, one wonders whether it is possible to capture such solutions in rules that answer the requirements of real legal certainty. We will get back to this point below.Otto finds it important to focus on the bottom of the social pyramid and the problems and needs of those inhabiting the lower strata of society. This focus is manifest in his work, which started his career as a scholar. Otto began by studying local, Egyptian government institutions and the problems local villagers face in accessing the services these institutions are supposed to provide (Otto 1987). His conviction that it is at this local level that people stand to benefit the most from a predictable application of state rules also triggered his interest in decentralisation. He was aware of the pitfalls involved in decentralisation processes and convinced of the need for central state involvement in many fields. Nevertheless, Otto holds that in the end, decentralisation is indispensable in creating a situation where the state is sufficiently informed about the local conditions to be able to respond to local needs (Frerks and Otto 1996). Reflecting on his research in Egypt, Otto emphasises the village (rather than the district or province) as the key level meriting attention. This is where he locates the interface between state and citizen, and where the latter has the best chances of voicing her needs and wishes.
The chapter by Andrew Harding ties in this theme. According to Harding, today, the need for decentralisation has almost universal support. But “how far such a policy should go, with what resources, and what control mechanisms are appropriate in terms of central-local relations and accountability of local authorities” remains contested. In an overview of East and Southeast Asian countries, Harding demonstrates how decentralisation has promoted near universal democratic government in a wide variety of states—some of which are far from democratic at the central level.
Otto's attention on the bottom of the pyramid, his perspective on the law's ‘user,' and the notion of ‘law in action' later moved him to engage more actively with the concept of‘access to justice.' Similar to his approach concerning real legal certainty, he started by defining this concept. Access to justice “exists, if: people, notably poor and disadvantaged, suffering from injustices, have the ability to make their grievances be listened to, obtain proper treatment of their grievances by state or non-state institutions, leading to redress of those injustices on the basis of rules or principles of state law, religious law or customary law, in accordance with the rule of law” (Bedner and Vel 2010). Access to justice seems to be the entry point for those in need of an outcome based on real legal certainty. Two points deserve attention here. First, in defining access to justice, Otto explicitly brings in religious and customary law and no longer requires that the state recognise such law. He thus seems to move away somewhat from a ‘statist’ perspective. However, by bringing in the requirement that such systems comply with the rule of law, a concept that is usually hard to reconcile with the flexibility of non-state procedures, this shift is not as significant as it may first seem. Secondly, this definition brings in a more substantive requirement. The demand of conformity with the rule of law at least suggests that customary and religious law must not violate fundamental rights (e.g., gender equality and other substantive norms). On the one hand, this is an improvement from a development perspective. But on the other hand, it brings in a whole lot of new issues that Otto avoided through his formal (or procedural) approach to real legal certainty.
In her thoughtful chapter on indeterminacy, uncertainty, and social order, Keebet von Benda-Beckmann raises some fundamental issues linked to the notion of real legal certainty. She points out that the highest degree of legal certainty may actually stifle social development and creativity, and that in fact legislators sometimes build in uncertainty on purpose.
The danger is ‘hyper-regulation,’ a situation where the creation of a new piece of legislation creates new uncertainties instead of removing them. It should also be acknowledged that indeterminacy is a structural condition of social life. This condition may lead to uncertainty in social interactions, but such uncertainty need not generate feelings of insecurity. And finally, in conditions of legal pluralism—which are common almost everywhere—legal systems other than the state’s may generate more certainty. An example from colonial and independent Indonesia demonstrates how state law may undermine legal certainty by replacing the local (oral) guarantees for proper land transactions with insecure registrations.In sum, real legal certainty may offer an answer to some ofthe problems of development, but it is no silver bullet and should be approached with caution.