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Real Legal Certainty and Its Relevance

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Real Legal Certainty and Its Relevance REAL LEGAL CERTAINTY AND ITS RELEVANCE REAL LEGAL CERTAINTY AND ITS RELEVANCE Essays in honour of Jan Michiel Otto edited by Adriaan Bedner and Barbara Oomen Leiden Publications Cover design: Studio Jan de Boer, Amsterdam Cover image: Court hearing of the religious court of Cianjur, in Sindangbarang, district Cianjur, West Java, Indonesia, November 2008 (photo: Dr. Stijn van Huis) Layout: Coco Bookmedia, Amersfoort ISBN 978 90 8728 315 5 e-ISBN 978 94 0060 330 1 (e-pdf) e-ISBN 978 94 0060 331 8 (e-pub) NUR 820 © Adriaan Bedner and Barbara Oomen / Leiden University Press, 2018 All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the publisher of the book. This book is distributed in North America by the University of Chicago Press (www.press.uchicago.edu). Contents Abbreviations 7 The Relevance of Real Legal Certainty – An Introduction 9 B. Oomen and A. Bedner Getting Real: Considering Legal Certainty from Below 23 1 Addressing Adverse Formalisation: The Land Question in Outer Island Indonesia 25 J.F. McCarthy, K. Robinson, and A. Dhiaulhaq 2 Can Free, Prior and Informed Consent (FPIC) Create Legal Certainty for Hunter-Gatherers? 43 G.A. Persoon and T. Minter 3 The Constitutional Dimensions of Decentralisation and Local Self-Government in Asia 57 A. Harding 4 Indeterminacy, Uncertainty, and Insecurity 81 K. von Benda-Beckmann Supporting the State: The Relevance of Institution Building 95 5 The Uncertain Future of Legal Reforms in China’s New Era 97 J. Chen 6 The Role of Local Bureaucrats in the Law-making Process 109 R. Simarmata 7 Law’s Catch-22: Understanding Legal Failure Spatially 127 B. van Rooij 8 Missions Impossible to Try Rwandan Genocide Suspects? 143 N. Huls 6 CONTENTS Other Actors: Widening the Scope 161 9 Traditional Leadership and Customary Law in Capitalist Liberal Democracies in Africa 163 J.M. Ubink 10 Capacity Development of Civil Society in a Fragile Context: Dutch Donor Interventions in the East of the Democratic Republic of Congo 177 C. Jacobs 11 Inheritance Rights and Gender Justice in Contemporary Indonesia 193 S. Irianto 12 The Role of Sharia in Lawmaking: The Case of Libya 213 S. Ibrahim References 235 List of Contributors 257 Abbreviations AMAN Alliance of Indigenous Communities Indonesia BEE Black Economic Empowerment CAO Compliance Advisor Ombudsman CDA Constitution Drafting Assembly CI Conservation International CLS Council of Libya’s Religious Scholars CNF Coalition of National Forces CPC Communist Party of China CRS PT Citra Riau Sarana CSO Civil society organisation CSS Council of Religious Senior Scholars DEAP Declaration on the Establishment of the Authority of the People DPD Assembly of Regional Representatives DPR Assembly of People’s Representatives EC Expert Committee ECDPM European Centre for Development Policy Management ECtHR European Court of Human Rights FAO Food and Agricultural Organisation FBL Fishery Business License FDLR Forces democratiques de la liberation du Rwanda FPIC First, Prior and Informed Consent FSC Forest Stewardship Council GA General Assembly of the United Nations GAD General Administration Department GDP Gross Domestic Product GFTU Genocide Fugitive Tracking Unit GNC General National Congress GoR Government of Rwanda HGU Hak Guna Usaha HoR House of Representatives ICD Interim Constitutional Declaration ICMM International Council on Mining and Metals ICTR International Criminal Tribunal for Rwanda 8 ABBREVIATIONS IFC International Finance Corporation ILO International Labour Organisation IUCN International Union for the Conservation of Nature and Natural Resources IUPHHK-HTI Industrial Plantation Forest IWGIA International Work Group for Indigenous Affairs KKDCCR Kutai Kartanegara District’s Committee on Conflict Resolution LIFG Libyan Islamist Group LUL League of the Religious Scholars of Libya MB Muslim Brotherhood MICT International Residual Mechanism for Criminal Tribunals MoU Memorandum of Understanding MTCS Malaysian Timber Certification Scheme NCIP National Commission on Indigenous Peoples NGO Non-governmental organisations NPC National People’s Congress NPPA National Public Prosecution Authority NTC National Transitional Council PA Political Agreement PEFC Programme for the Endorsement of Forest Certification RCC Revolutionary Command Council RPA Rwanda Patriotric Army RPF Rwandan Patriotic Front RSPO Roundtable on Sustainable Palm Oil SSFRC Small Scale Fisheries Registration Certificate TAN Transnational activist networks TNC The Nature Conservancy ToC Theory of Change TORA Land Subject to Agrarian Reform TPAS Dutch Timber Procurement Policy WIPO World Intellectual Property Organization WTO World Trade Organization WWF World Wildlife Fund UN United Nations UNDP United Nations Development Programme UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNEP United Nations Environment Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNSMIL United Nations Support Mission in Libya The Relevance of Real Legal Certainty – An Introduction B. Oomen and A. Bedner What are the chances that an Egyptian villager who is entitled to receive subsidised bread realises this right? What is the likelihood that an Indonesian city dweller who has lived for more than 40 years on a plot without disturbance obtains state recognition for her tenure? What are the prospects that a Libyan who lost his apartment under Gaddafi receives compensation? And what, to highlight another part of this puzzle, is needed to empower the Egyptian, the Indonesian, or the Libyan state institutions in such a manner that these chances increase? Which dynamics are at work in such cases? These questions, we venture, constitute the red thread that runs through the academic work of Jan Michiel Otto, who founded the field of Law, Governance and Development at Leiden University, and held the chair in this field from 2000 onwards. They led him to coin the concept of ‘real legal certainty’ in his inaugural lecture in 2000 (Otto 2000b), and to expand on it in a volume on the implementation of the law in China (Otto 2002b). And although he never provided any further theoretical elaboration and seldom referred to the concept explicitly, it constitutes the backdrop to most of what he has since written. What is more, it is a concept with important potential in this day and age. In Otto’s definition, real legal certainty consists of five probabilities (Otto 2002b, 25). First, that there are clear, consistent, and accessible legal rules, issued or acknowledged by or on behalf of the state. Second, that the government institutions apply these rules consistently and themselves comply with them. Third, that most citizens, in principle, 10 B. OOMEN AND A. BEDNER conform to such rules. Fourth, that in the course of dispute settlement, independent and impartial judges apply such rules consistently. Fifth, that those judicial decisions are enforced. Such real legal certainty, Otto argues, is the objective of the implementation of law and one of the objectives of development. Not only is it an important precondition for achieving other development goals, such as eradicating poverty, promoting health, etc., but it is also a goal in itself. Assessing real legal certainty requires a particular methodology, with a focus not only on legal rules but also on institutions and the wider social context. Here, classic positivist legal research methods do not suffice, and there is a need for multi-disciplinary, socio-legal research. Both this concept and this approach, it seems, are more relevant than ever. They form an important corrective to the surge in attention for legal certainty defined in a more narrow sense. Whereas there is increased scholarly attention on legal certainty, there has been little engagement with the term ‘real’—the term in Otto’s definition that looks upon the practical results of the operation of a legal system and the insights and interventions that improve them. The gap between the rules and acts produced by the legal system and what happens in practice is present everywhere, but it is particularly conspicuous in the developing world that constitutes the focus of Otto’s work. However, no matter how obvious, many practitioners in law and development still fail to act upon it. That it has a useful signalling function for such practitioners is therefore beyond discussion. The concept, however, can also strengthen current scholarship on analysing the role of law in development processes, widely defined. The objective of this introductory chapter is then to both illustrate the relevance of real legal certainty as an analytical concept and an approach in research, and to engage critically with it. This is done on the basis of the contributions to this volume, all written by (former) colleagues of professor Otto. It will proceed by comparing common understandings of legal certainty against the notion of real legal certainty. Subsequently, we will illustrate the relevance of twin aspects of Otto’s concept of real legal certainty on the basis of both general literature and the case studies presented in this volume. On the one hand, there is the emphasis on the ‘view from below,’ the implementation of the law in the everyday life of citizens. On the other, there is the focus on truly equipping the State to provide the real legal certainty that citizens call for. After highlighting these aspects, we turn to a more critical engagement with Otto’s understanding of real legal certainty. Most of all, there is the need to— in this day and age—consider actors other than the nation-state when it comes to realising real legal certainty. This entails the importance of recognising the effects of the resulting legal pluralism, and also of THE RELEVANCE OF REAL LEGAL CERTAINTY 11 discussing the role of legal ambiguity concerning social justice. All this, then, leads to a conclusion about the relevance of real legal certainty, realistically considered, in today’s day and age.
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