Judges and rural property. The Missing Link in Public Land Policy

Project: Research project

Description

Over the past 30 years, Colombia has implemented public policies aimed at guaranteeing progressive access to property through the allocation of rural assets. However, their effects have been limited and even after numerous policies and legislation on the subject, the regulation of rural property rights remains a pending issue in the country. Evidence from studies and evaluations on the subject shows that there is a flaw in the institutional designs that are created for the implementation of these policies, processes that involve, among other entities, the judges of the republic whose role has not been sufficiently explored. This project seeks to investigate the role of judges in the assignment of property rights, both in the design and execution of public policy and normative institutions. Different analyses of institutional design and policy implementation, which account for the instability of property rights in the country and their relation to violence and state capacities, show the obstacles and failures of different attempts to regulate rural property rights. We find, for example, in the national literature that which refers to property rights and which deals above all with the relationship between the structure of property and the origin and persistence of cycles of violence in Colombia (Peña & Zuleta 2018; Peña 2018; Acero & Parada 2017). Additionally, we find analyses on i) the expansion of the agricultural frontier and the progressive concentration of property (LeGrand [1988] 2016; Kalmanovitz & López 2006); ii) the relationship between local elites and political parties with the assignment of rights (Reyes 2009; Gutiérrez Sanín 2014; Machado 2009); and, iii) normative designs on the regulation of rural fixed assets (Peña-Huertas, et al. 2017; Peña-Huertas & Zuleta 2018). With respect to the latter, few authors have been in charge of studying the emergence of property rights from the civil code and the transformations in property regimes (Acero & Parada 2017). However, authors such as Gallo (2010) and Rengifo (2011) question, respectively, the inability of the State to expand and implement property rights in the national territory, and the efficiency of civil law, which defines property in the country, to address new social realities, for example, collective property. Similarly, works such as Céspedes et al. (2015) do an exercise to investigate the emergence of private property and the definition of the Supreme Court of Justice when it comes to understanding vacant lots. Finally, the literature on this subject agrees that the causes of instability in property rights is that "the Colombian State has been unable to administer and defend private property, and in this sense, lacks the capacities and infrastructure to achieve this objective" (Acero & Parada 2017). Thus, although the role of the legal system is recognized in relation to the capacity of the State and the importance of civil law to administer private property, the exercise of judges and their practices as agents within this institutionality have not yet been explored. However, this is even more problematic as it shows that their role is a central piece for the proper implementation of policies and legislation that seeks to assign property rights. The most outstanding of these state initiatives are Law 1448 of 2011 and the Program for the Formalization of Rural Property of 2010. Both open the door to new analyses in which the role of judges in matters related to access to rural property must be considered. Firstly, Law 1448, which is in force until 2021, aims to re-establish the property rights of victims of displacement and forced abandonment on those properties affected by the armed conflict after 1991. To this end, a special institutional chain was created to deal with this issue with the specificities it requires. Within this institutional design, the Land Restitution Unit, attached to the Ministry of Agriculture, is in charge of carrying out all the processes of the claimant victims, documenting the cases, collecting the evidence and presenting it before the civil judges of the circuit, specialized in land restitution; so that they, as competent judicial authorities, may re-establish property rights. In specific areas of the judiciary, the Specialized Chambers for land restitution were included in the design. In this case, judges and magistrates decide on the property rights that were affected by the armed conflict.

Key findings

Three (3) semi-annual reports that will be published on the website of the research network of the Observatory of Restitution and Regulation of Agrarian Property Rights (Observatorio de Restitución y Regulación de Derechos de Propiedad Agraria).
Two (2) articles publishable in national journals recognized by Colciencias, including one on the practice of socio-legal methodology.
Training of researchers through the strengthening of research capacities in sociojuridical methodology.
Linking two (2) undergraduate students, a master's student and a doctoral student in research
Linking of two (2) young researchers

Translated with www.DeepL.com/Translator
Short titleJudges and rural property
AcronymJPREPPPST
StatusActive
Effective start/end date4/1/194/1/21

Main Funding Source

  • Internal