Transforming Land‐Taking Disputes in Socialist Asia: Engaging an Authoritarian State

• DOI: http://doi.org/10.1111/lapo.12078
• Date: 01 July 2017
• Published date: 01 July 2017

Transforming Land-Taking Disputes in Socialist Asia:

Engaging an Authoritarian State

JOHN GILLESPIE

Few studies have responded to the calls by sociolegal scholars to explore how disputes evolve.

This article takes up the challenge by examining how intermediaries in socialist Asia resolve

land-taking disputes that are intractable for administrative appeals and courts. Exploring

alternatives to state-based dispute resolution is a pressing issue for conflicts that pit citizens

against authoritarian regimes. Using in-depth interviews, this article investigates how

intermediaries such as retired state officials navigate in and around authoritarian regimes,

flattening power asymmetries between citizens and land officials. This analysis draws from,

links, and advances three literatures that examine dispute resolution in different ways: the

sociolegal “naming, blaming, and claiming” literature examines the trajectory of disputes,

regulatory studies use legitimacy expectations to analyze how disputants evaluate and prioritize

competing regulatory frameworks, and the collective identity literature analyzes how

communities respond to disputes. This article contributes to the literature by developing a

theoretical framework that explains how intermediaries circumvent conceptual differences and

transform disputes. The findings compel researchers to consider the use of intermediaries as an

alternative to state-sponsored dispute resolution in authoritarian settings.

INTRODUCTION

Few studies have responded to calls by sociolegal scholars to explore how disputes evolve

(Menkel-Meadow 1996; Merry 1990; Felstiner, Able, and Sarat 1980). This article takes

up the challenge by examining how intermediaries in socialist Asia resolve land-taking

disputes that are intractable for courts. Much has been written about judicialization in

authoritarian regimes (Peerenboom 2010; Ginsburg and Moustafa 2008), but extrajudi-

cial conflict resolution in these settings is less well understood (see, e.g., Minzer 2011).

This inquiry is especially critical in socialist Asia, where courts and state mediation strug-

gle to resolve conflicts such as land-taking disputes that pit citizens against the state (see

generally Fu and Gillespie 2014; Pils 2005). This article contributes to the literature by

developing a theoretical framework that explains how intermediaries negotiate around

power imbalances between citizens and officials.

Land-taking disputes are increasingly common in socialist Asia as economic and demo-

graphic growth intensifies the demand for farmland and urban spaces (Hsing 2010; L^

e

Hi

^

eu 2010). The Vietnamese state, for example, is using compulsory powers to acquire

Thank you to Dr. Nguyen Van Thang and the team at T & C Consulting for conducting interviews for the Sơn

La case study and to the government officials, land users, developers, and lawyers who agreed to be inter-

viewed. The Asia Foundation funded the Sơn La case study.

Address correspondence to: John Gillespie, Monash University—Business Law Department, PO Box 197

Caulfield East, Melbourne, Victoria 3146, Australia. Telephone: 1613 99034064; E-mail: john.gillespie@

monash.edu.

LAW & POLICY, Vol. 39, No. 3, July 2017 ISSN 0265–8240

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doi: 10.1111/lapo.12078

land for industrial parks, transport infrastructure, dams, and new residential develop-

ments—a process that is dispossessing millions of farmers.

1

Farmers do not always leave quietly: of the estimated 1.6 million complaint petitions

received by the Vietnamese government from 2008 through 2011, more than 70 percent

concerned land-taking disputes (BBC 2012). Farmers lack access to effective formal

redress against the state (Fu and Gillespie 2014; Kerkvliet 2014). Dispute resolution in

local government conciliation committees (ban h

oa giaœi) is often open-ended and ineffec-

tive because officials flexibly apply the law with little regard for legal consistency or pro-

cess (Investconsult 2008) while courts rarely find against the state in land-taking cases

(United Nations Development Programme 2013).

2

Against this backdrop of institutional failure, farmers are turning in increasing num-

bers to public protests to improve their bargaining position (Kerkvliet 2014). Surpris-

ingly, in authoritarian regimes where security police swiftly suppress large-scale protests,

intermediaries in some circumstances settle land-taking disputes (Fu and Gillespie 2014).

For example, Annette Kim (2011) illustrates how land users in southern Vietnam used a

range of intermediaries, such as the Vietnamese Architects’ Association, to increase com-

pensation claims. Similarly, William Hurst, Mingxing Liu, and Ran Tao (2010) show how

intermediaries in China such as semiautonomous clan and business associations leveraged

relational connections with local government officials to secure more favorable compen-

sation for land users.

These land-taking studies have a political economy focus. They describe how

intermediaries deal with power asymmetries and navigate a middle path between the

extremes of submission and street protest. Intermediaries in these studies used political

connections to negotiate in, around, and even against the law. What is missing from these

studies is an epistemological analysis of land disputes. How can intermediaries overcome

power asymmetries and persuade land officials to understand disputes from the perspec-

tives of disposed farmers?

To advance this inquiry, this article examines how intermediaries in the provinces of

Sơn La and Th

ai B

ınh reconciled fundamental differences in the way officials and farmers

conceptualized land-taking disputes. A central claim is that intermediaries can overcome

power asymmetries by persuading farmers and land officials to flexibly adjust their nor-

mative and cognitive assumptions. It is argued that normative and especially cognitive

differences encourage categorical responses to disputes that inhibit the pragmatic com-

promises that generate lasting settlements. By lowering the emotional temperature and

supporting a technical, pragmatic discourse, intermediaries promoted compromise, pref-

erence convergence, and settlement.

This article also explores the interaction between the state land tenure system and the

nonstate land tenure system favored by farmers. It asks whether intermediaries merely

provide contextualized solutions to land contests or communicate the farmers’ regulatory

preferences and change how state regulators conceptualize land-taking disputes. Sociole-

gal theory is generally optimistic about fruitful interaction between state and nonstate

legal systems (Engle 2009; Santos 1995). Scholars highlight the role that intermediaries

such as business or civil society actors play in promoting fruitful interaction between state

and nonstate legal systems (Gilad 2014; Levi-Faur and Starobin 2014), a process termed

“co-construction.”

Sounding a cautionary note, David Engle (2009) reminds us that state and nonstate

legal systems do not invariably overlap, interact, and coconstruct. In a longitudinal study

conducted in northern Thailand, he found that sometimes the pathways that connect

“one legal imagining to another have been obliterated” (ibid., 64). Engle’s study raises the

Gillespie TRANSFORMING LAND-TAKING DISPUTES 281

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