One of the struggles when writing this book was to find an analytical framework that could give a deep understanding of the Timorese formal land tenure system. I wanted to avoid a simple dualist view like the frequently used ‘law on the books and law in practice’, which does not explain how the law came to be the way it is, and why the law on the books differs from the law in practice. Instead, I wanted a framework that showed how this land tenure system has been formed, the influences that shape it, its relationship with other land tenure systems, and how it impacts the everyday life of the Timorese.
In my search for an adequate analytical framework I came across the framework developed by Benda-Beckmann et al. for the study of property (Benda-Beckmann et al., 2006: 14).5 These authors raise issues with evolutionary frameworks that divide property into what they call ‘the big four’ categories: private, state, communal, and open access property. Benda-Beckmann et al. consider that these categories do not provide useful and consistent criteria for property analysis, and that the study of property should focus instead on different and interrelated ‘layers of social organization’ (2006: 15), or sub-systems as called by Barry (2015: 28). In other words, they show the importance of looking at the arenas where land gets a social value. These layers are (1) ideology, (2) the legal and institutional systems, and (3) the social relationships and social practices. Benda-Beckmann et al. point out that property works very differently in each of these layers of social organisation, and property can only be understood if one looks at each of these layers and the intersections between them. The authors argue that their framework allows for a vision beyond the legal categories of property, eliminates the problems that other approaches have in not distinguishing between categorical and concretised property relationships, and allows for an understanding of property practices in context.
5 In Chapter 2 I raise some issues with the expression ‘property’, but I use it here for now. The authors argue that property ‘concerns the organization and legitimation of right and obligations with respect to good that are regarded as valuable’ (2006: 2). In this book I call the rights and obligations referred by these authors land rights or land tenure, and the mechanisms to organise and legitimise them land tenure systems. Barry provides a critique of this framework, arguing that while it provides a good tool for explaining and predicting problems, it does not offer any tools for action against the problems the authors describe (2015: 30). Moreover, the complexity of this framework’s analysis is not so attractive to international organisations and politicians, who need more simple and digestible messages (ibid.). While Barry’s critique is factually correct, it does not diminish the relevance of Benda-Beckmann et al.’s framework. First, as this book shows, the initial step to address complex social problems, such as those raised by land tenure, is to have deep knowledge about them and their possible solutions (Seidman and Seidman, 2006; 2008), and a broad framework that provides more knowledge is therefore relevant. Second, the fact that the complexity of a framework of analysis raises low interest from international organisations and politicians says more about the problems of these actors than about the framework. It is correct that governments and international organisations often work in less than ideal scenarios, and limitations such as time and resources can make in-depth research very difficult or even impossible (Chapter 5). But this should not distract them from trying as much as possible to understand the realities in which they are working.
However, while the multi-layered framework of Benda-Beckmann et al. provided a good point of departure in my search for an analytical framework, it could not be easily operationalised for the reasons described below. Inspired by this framework, and prompted by its gaps, I have modified it and developed my own framework: the Land Tenure System Analysis Model.
The modifications were the following. First, I adjusted the scope and name of the first layer of social organisation from ideology to political environment. The authors do not define ideology, leaving unclear what, in their view, should be analysed. A strict definition of ideology as political theories about societal organisation, the role of the state, and how resources should be shared, such as capitalism, communism, and neoliberalism, provides a very limited scope of analysis (Schwarzmantel, 2008: 36). In Timor-Leste, as in many other countries, political theory plays a very limited role in political debates and decisions. Therefore, focusing the analysis on political theories would provide very limited results. Ideology can also be defined in broader terms, including political theories, less theoretically structured visions and aspirations for the country, and the values that inform those visions and aspirations. But even this broader definition of ideology is limited. Every country has several contextual factors that, in parallel with ideology, influence political debates and decisions around land tenure systems (e.g., historical context, economic situation, rule of law). Focusing only on ideology, even if broadly defined, would overlook these contextual factors and provide a partial view of this layer of analysis. Therefore, Chapter 4 looks into the ‘political environment’, which encompasses political theories, aspirations, visions and values of the elite but also the contextual factors that guide the political debates around land tenure.
The second modification clarifies the object of the second layer of social ordering—the ‘legal-institutional layer’—where the authors look into the categories of rights formed by laws and institutions. However, also in this case the definition of these concepts makes it difficult to set their boundaries. To address this issue, in Chapter 6 I focus on the ‘legal framework’, where I describe the Timorese legislation relevant for land tenure. In this description I pay attention to the main legal structures and concepts, but also to legislative gaps and contradictions. When possible I also provide the interpretation that courts and state institutions have made of specific legislation. While this conceptualisation of the second layer can, at a first glance, lose some of the analysis proposed by Benda-Beckmann et al., its object becomes clearer, and the possible losses are compensated by the other changes proposed below. One final detail regarding the layers was to add, as part of the third one, the ideas that people have regarding land tenure.
The third modification was to clearly identify key intersections between the different layers. While Benda-Beckmann et al. mention the importance of looking at these intersections, they are less clear in pinpointing them. The first intersection that I identified and included in my model was law-making, as it brings together the political environment and the legal framework; it is through law-making that poli...