A missing link in the interdisciplinary research on food justice

Many researchers have studied how social factors shape agricultural production. Institutional and bureaucratic changes, like the self-sufficiency policy, the pattern of land holdings (in terms of size distribution of farm), land tenure and other contractual arrangements have contributed to efficiency of productions (i.e. Fagerberg, 2000). Diversity in cropping systems and market arrangements have also been argued as having implications for soil fertility management (Sanchez, 2002; Adjei-Nsiah, 2006). In the similar vein, gender-linked differences in the adoption of modern crop varieties and chemical fertilizer result from gender-linked differences in access to agricultural inputs (Doss and Morris, 2000).

The abundant amount of such streams of studies provides us with sufficient knowledge of and methodological suggestions for studying how social factors shape the physical and technical environment for agricultural production. This interest in insights on the social determinants of physical and technical environments has come at the expense of complementary studies regarding physical and technical determinants of social and, in particular, legal strategies.

The physical and technical environments are indeed connected with societal legal concerns, particularly pertaining to claims and strategies as well as settlement of disputes. A recent finding of research on land management in the oil palm based cropping system on the Adja Plateau in Benin conducted by the Soil Quality Department WUR shows that what looks as one field with crops and trees is in fact an arena for competing claims where informal and formal tenure rules interact; and where formalisation that results in increasing clear ownership may also weaker positions for the landless that use the land for growing food crops (Yemadje et al, forthcoming).  Conflicts between herders and agriculturalist could also show the same connection, especially in the context of land grabbing (Deininger and Castagnini, 2006; Peters, 2004).  Recommendations for treating specific physical and technical factors crucial for farmers, such as land (de Schutter, 2011) and seed (de Schutter, 2011), in different ways has been advocated a way to essentially deliver possible safety net from marginalisation.

What critically missing from the foregoing studies on the intersections between law and natural sciences is an explicit methodology how to study the influence of physical and technical features pertaining to food production to legal representations and strategies, where plurality is not only a character of the legal orders and the agricultural features but also in their interaction with the societal settings.

We need to close that gap by studying the impact of physical and technical environments on the social constructions of claims made with regard to food production and distribution in plural legal orders in subsistence and mixed-subsistence rural areas. Of particular long term interest is how agricultural determinants, such as soil quality, water, and cultivation activities, shape and give meanings to people’s legal claims and facilitate their negotiations for securing their access to resources necessary for sustaining their daily livelihoods.

Here, legal claims are regarded as representations of interests formulated in order to receive institutional responses. Institutions in which these claims are lodged are expected, in principle, to be able to issue decisions and/or settlements that are binding and enforceable. While such simply framed institutional factors may be crucial, in complex realities people also use routes of action other than the formal justice system to secure their daily livelihoods. They may appeal to locally constituted institutions whose decisions and authority are more diffuse than that attributed to formal judicial authorities and/or act directly, based on the institutionalised practices that have been exercised and considered common in the society. The importance of these customary practices in securing access to food may increase as the focus shifts to poorer and socially, economically and/or geographically more peripheral communities.

In these peripheral communities there may be other sets of rules that run parallel to (or different from) laws and regulations promulgated or recognised by the state that regulate people’s methods of production. These rules may not be acknowledged as ‘law’, or be attributed to a specific legal system (such as self-regulation or customary law). Furthermore they may not be recognised by official apparatus either. These legal practices are of particular interest in our analytical approach. Access to land may be perceived as a right as well as a private property under state laws as well as be embedded in local customary systems of land tenure under diverse arrangements ranging from private to common property or even open access systems. In many parts of the world, common resources such as forest, fisheries and rangelands, are held under customary property arrangements, which have more legitimacy in the eyes of the population than state laws. Over time, different societies have arrived at quite different solutions for this balance (Benda-Beckmann, 2006:5).

When state and non-state legal orders exist in receiving claims, when both construct and then impose judgements, and when these alternatives are real options for people, we have plural legal orders. The term ‘plural’ can refer to another legal order that exists parallel to that of the state, the inherent plurality in the state order itself, and the quasi-state legal orders that are established and recognised. Although in general a formal legal order, with government enforced law, is accepted as legitimate, it is sometimes necessary for states to establish or recognise other legal orders with their own legitimacy. When the state order is considered alien, inadequate or irrelevant, these other orders emerge and gain legitimacy. Furthermore, such a plurality emerges as a response to other factors such as conflict, the functional absence of the state and/or emergence of new social contracts.

These complex legal environments are reflected in the complexity of social constructions of harms and the claims that emerge therefrom. In these claims not only norms, practices and institutions are relevant, but also physical and technical factors such as soil fertility and methods of land cultivation. These physical factors, which have thus far been largely overlooked in legal analysis, may shape the choices people have with respect to the representations they make and strategies they follow.

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