451418607 Land Administration

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451-418/607 Land Administration
Tool 2. Legal Principles
Jude Wallace
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Overview

• Objectives
• To broadly understand the roles of legal
  frameworks
• To understand how legal systems relate to and
  underpin land administration systems
• Topics
• Introduction to legal systems
• Legal systems and LAS
• Reading
• Glenn, H. Patrick, 2004, Legal Traditions of the
  World Sustainable Diversity in Law, 2nd edition,
  Oxford University Press, Oxford.
• Williamson, I.P. 2001. Land Administration Best
  Practice providing the infrastructure for land
  policy implementation Journal of Land Use
  Policy, 18 297-307

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Exam question

• Explain basic legal arrangements needed to build
  a LAS to support either -
• A successful land market, or
• Life styles of indigenous people.
• Use examples drawn from country case studies
  (other than your own country case study).

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What are legal systems?

• Why do we need them?
• How do we create them?
• How do we administer and enforce laws?

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An introduction to legal systems
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Legal systems are a sub-set of Normative systems

• Normative systems are
• systems of rules and expectations
• Normative systems can be
• Religious
• Social
• Legal
• Administrative
• Animist/traditional/chthonic (Eg Adat in
  Indonesia)
• Paradigms of scientific discourse

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How are legal normative systems created?

• They relate to an order a legal order.
• They depend on institutions and ideas
• Example Westminster system
• Separation of powers
• Montesquieu three branches of government
• Executive (administrative), Legislative,
  Judicial.
• Two basic models presidential (USA), and prime
  ministerial (UK, Aus, India, NZ, Can. S.A.
  leader from majority party in parliament).
• Parliament makes the laws the executive designs,
  generally.

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But, first we require some form of constitution

• Most nations are single jurisdictions
• One Parliament (unitary states).
• New Zealand one parliament consisting of one
  legislative house.
• Some are federations of jurisdictions
• State, provincial and National parliaments.
• USA, India, Canada, Malaysia, Russia, Argentina,
  Venezuela, Brazil, Mexico, Germany, Switzerland,
  Pakistan, Oman. (Sudan? Ethiopia? Nigeria???
  Iraq?????)
• Australia has 1 national, 6 state, 2 territory
  and 675 local governments for 21m
  people. http//www.alga.asn.au/links/obc.phpa1
• Which system is easier to manage?

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Constitutions are the source of political power
and law making capacity in nations
Federated states (green). Unitary states
(grey). Wikipedia Commons, 2007
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Traditional legal systems

• Common law systems Ethic of adjudication
• Civil law systems Centrality of the person
• Chthonic systems Recycle the world
  (traditional)
• Talmudic systems The Perfect Author
• Islamic systems The Law of later revelation
• Hindu systems Law as King, but Which Law?
• Asian systems MAKE IT NEW (with Marx?)
• Glenn, H. Patrick, 2004, Legal Traditions of the
  World Sustainable Diversity in Law, 2nd edition,
  Oxford University Press, Oxford.

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Common law systems

• In world context adjudication.
• Judges interpret the parliaments words.
• Judges decide case, by case, by case.
• Accumulated decisions announce judge made law
  and interpretations of legislation.
• Judges use these ever-changing laws and
  interpretations to determine disputes.
• So judges can update the constitution.

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Typical legislative framework

• Constitution gives parliaments power
• Statues made by Parliaments
• Acts Acts specifically delegate parliamentary
  power down a chain.
• e.g. Transfer of Land Act 1958 governs Land
  Registry Victoria
• Subordinate legislation
• Regulations (governor in council).
• Rules (other authorised groups)
• e.g. judges making court rules
• Administrative rules
• Registrars powers to define registrable
  instruments.
• codes, standards, etc ??
• Binding members of the group that makes them.
  Normally they stand alone. But they can be
  adopted by reference back into an Act, regulation
  or rule.

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Civil law systems (most common)

• Based on Roman Law.
• Rely on codes (some exceptions). Short
  statements of legal principles. Compare 1000s of
  statute pages in common law systems.
• Code, not judges, is the source of law.
• Judges apply and interpret the code. They dont
  make law.
• Courts use inquisitorial system. Judges control
  the courtroom and even investigations of facts.
• Judges are part of the administration, not
  separate.

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Many countries now have a mix (thanks to
colonisation and its aftermath)
Figure 2.9. World map of legal origins (Source
The World Bank Doing Business in 2004, Figure 7.2)
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Modern legal systems SHOULD pass public use tests

• Can I find the law?
• The Acts?
• The regulations and rules?
• The codes?
• Judges decisions?
• http//www.austlii.com.au
• http//www.dms.dpc.vic.gov.au/
• Can I understand the law when I read it?
• Can someone explain the hard parts to me?
• Where do I complain?

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The role of legal systems in land administration
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LAS and legal systems

• There is a direct relationship between successful
  
• Parliamentary democracies
• Land markets, and
• their land administration systems.
• The relationship goes something like this -
• Private ownership involves state relinquishing
  power over land to owners and creates many
  players in politics.
• Distributed power over land means distributed
  wealth ability of many to control government.
• Government provides the LAS transparent and
  accountable institutions which support private
  ownership and power.

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LAS and legal systems

• Laws must
• define the institution of property that is
  managed by systems built by land administrators.
  LAS manage the Where? When? How? What? Who?
  questions
• formalise people to land relationships
• formalise restrictions on land
• These legal functions must be supported by other
  LA tools
• e.g. cadastral mapping, land policies, cognitive
  capacity of the public

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LAS and legal systems (cont)

• At practical levels, laws define
• Tenures the rights, estates, interests in land
  and resources (including water)
• Transactions sale, mortgage, lease etc
• Social transitions inheritance, divorce,
  marriage, entry and exit from owning groups and
  so on
• Agencies and organisations the generals
• Professions and their regulation
• Participation of individuals and companies
• Building, planning, taxing, development,
  environment protection and 5000 other things
  .

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LAS and legal systems (cont)
Tool 2

• Best Practice Legal Principles
• Overall, law should deliver security of tenure
  and minimise disputes
• Land policy must drive legislative reform
• Land administration legislation should be
  integrated, ie National Land Code
• Less, not more, regulation
• Regulations should be generic and broad
• Regulations should have sunset clauses
• Regulations should facilitate land administration
  processes

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LAS and legal systems(in the West)

• Civil law and common law countries
• Both support market based land administration
  systems
• Similar institutions property, legal order,
  citizens, contracts, corporations,
  democracy, inheritance, ownership,
  servitudes/easements
• Similar political structures parliaments,
  administrations and courts
• Similar LAS agencies and organisations land
  registries, cadastres, surveyors boards
• Similar professional groups

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LAS and legal systems (in the West)

• The balance of power
• Theory of Westminster system is to balance power
  among the three arms of government Executive,
  Legislative, Judicial
• For land administration Executive through
  Legislature (parliament) makes the laws about
  institutions and functions. Judges solve
  disputes.
• Administrative system of generals registrar
  general, valuer general, surveyor general.
• Each runs his own institution, reports to his
  minister, and never talks to the others. SILO
  systems.

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But

• All the above LAS and Tool 2, Legal Principles
  relate to our Australian statute book and LAS
• The principles test efficacy of laws in a
  well-run parliamentary democracy
• Countries not parliamentary democracies need
  DIFFERENT LEGAL PRINCIPLES.

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Transporting Western institutions

• Debate Should we transfer western ideas of
  property, agencies and processes
• Some say it cannot be done.
• Others say it can.
• Many quarrel about whether it should.
• REMEMBER LAND IS ABOUT PEOPLES IDENTITY. Change
  land and you change identity
• Land administration assumes that transport is
  possible.
• Land administration does not assume transport is
  always possible.
• Land administration defines SUCCESSFUL transport
  opportunities by FIRST looking at the on-ground
  situation.
• UNIVERSAL STARTING POINT people want their land
  protected.

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Major issues for transporting LAS institutions
and agencies

• Transportation of property in land crucial
  for land markets
• Transportation of technical facilities crucial
  for modern land management but many countries
  cannot sustain hi-tech systems. Therefore use an
  appropriate system
• Transportation of administrative arrangements
  depends on legal heritage and national
  constitutional arrangements
• Transportation of capacity education is the
  major focus.
• Remember Glenns types of legal traditions, and
  try to understand the local situation, colonial
  experiences, peoples needs and aspirations.

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A quick exerciseEvaluating Australias LAS
statute book

• Score Australias legal systems against Tool 3,
  Legal Principles
• Use the following rating system
• Bad
• Rough and ready
• Bare pass
• Ok
• Great

• Does land policy drive the creation of
  legislation?
• Do we have an integrated Land Code?
• Do we create less, not more legislation?
• Is our legislation generic, not specific?
• Do we use sunset clauses?
• Do our laws facilitate LAS processes?
• Do our laws deliver security of tenure?
• Do our laws minimise disputes?