Law and Urban Change in Developing Countries
Edited by Edésio Fernandes and Ann Varley
Zed Books, London and New York
1998, ISBN: 1 85649 550 7 (pb)
280 pp., index, tables, figures
Reviewed by Dr. Ben Wisner
Environmental Studies Program, Oberlin College
Law and urban change is an urgent, vital, complex issue. It is not dry. It is not about the infamous 88,000 pages of EU regulations or what insomniacs see at 2 a.m. on C-SPAN.
Recently in El Salvador I was told that the biggest problem facing the 200,000 families made homeless by the earthquakes in January and February of 2001 was not building materials or labor, but finding permanent, secure, safe sites for these new homes. El Salvador has 262 municipalities. Most do not have professionally trained lawyers or planners. Although in theory the 1997 Municipal Code provides these municipalities the right and power to acquire land for such a purpose, there is a lack of experience and skill in using the Code. The judiciary has also not often seen it used. Development agencies call this a problem of “capacity”. But what is the history of such a problem, and what are the broader social and political solutions?
This excellent anthology addresses precisely such questions in 14 competent and information rich chapters. Introductory material by the editors and also the very experienced Patrick McAuslan merge beautifully with the final two chapters (Conclusions and Future Trends) by Alain Durand-Lasserve and Sergio de Azevedo. Totaling 92 pages, these bracketing and contextualizing chapters are very substantial reviews. In between there are ten case studies from Istanbul, Amman, Bangalore, Caracas, Mexico City, Nairobi, as well as more general studies of national level legislation and programs of “regularization” in Brazil, Mexico, and South Africa.
The editors emphasize that these are not simple studies of law, but of the relationship among law, society, politics, and change. They highlight four key questions: why and how different forms of ownership are treated differently in law; why and how individual behavior and social practices are often regulated by non-legal, unofficial criteria; why and how societies define different “degrees of legality” according to which some forms of illegality are tolerated or accepted and others not; why and how the rich in these cities also practice and benefit from illegality (pp. 4-5). This broad and highly political approach is firmly rooted in the work of such progressive philosophers and planners as Henri Lefebre, Manual Castells, Jorge Hardoy, and David Harvey.
Ayse Yonder summarizes a series of institutional and legal reforms in Istanbul, finally concluding that “low-income housing continues to be an afterthought in Turkey” (p. 65). Yonder sees this as being “critical to the distributional and environmental implications of housing policy” (p. 66) This is an understatement. In view of Istanbul’s high degree of vulnerability to a major earthquake under the Sea of Marmara, a disaster worse than that which befell more eastern parts of the Marmara region in 1999 seems inevitable, given the quality of this housing.
Omar Razzaz draws several lessons from detailed case studies from theYajous district of Amman, Jordan. One of the most interesting is that the imposition of law can bring unanticipated side effects. Attempts to provide more certainty to consumers, a new law worked as a disincentive to traditional land lords. This finding is not surprising. In a similar way, the imposition of a cap of rents in Mexico City is thought to have caused landlords to neglect maintenance on low rent building near the center of the city. This, in turn, was a factor in building collapse during the 1985 earthquake and loss of lives.
Amanda Perry describes a situation in Bangalore, India, in which the poor are caught between unrealistic and overly ambitious plans to “clear” some 400 slums and provide high rise accommodation on the one side, and a formal real estate market to which they have no access because of lack of income, on the other.
Asteya Santiago reviews the development of land and housing law in the Philippines and finds that there has not been enough emphasis on enforcement. The society is also described as “highly legalistic” (p. 107). This is not a contradiction, but two aspects that coexist. I witnessed the former when I visited the site a massive landslide that had destroyed a middle class housing development called Cherry Hill on the edge of Metro Manila. Land use regulations covering this situation’s clear geotechnical data had not been enforced .(this site was an abandoned quarry). A few days later I gained some experience of the latter when I spoke with people protesting their expulsion from homes by the side of a river in the part of Metro Manila administered autonomously as Malabon City. They insisted that the proper procedures for eviction had not been followed. However, whatever the adherence to rules, eviction deprived them of livelihood. They fished in Manila harbor for a living, and the resettlement area offered them was landlocked and distant. Under the legal name of “flood control”, powerful elites were about to make a seasonally flooded coastal urban zone more attractive to foreign investment.
Rogelio Perdomo and Teolinda Bolivar present a very interesting portrait of informal governance and conflict resolution in the barrios of Caracas, Venezuela. Contrary to the stereotype of lawlessness and violence, they find that “the residents have managed to create not only a place for themselves in the city (however precarious), but also an efficient system for dealing with the conflicts that may arise in their neighbourhood” (p. 136). This more balanced view of social order in informal settlements agrees with that of the classic work by Jorge Hardoy and David Satterthwaite, Squatter Citizen.
The chapter on Brazil, authored by Edésio Fernandes and Raquel Rolnik, departs from earlier ones in an important way: it emphasizes the role of civil society in demanding changes in law. They write, “... [T]rade unions and social movements had already forced a partial redefinition of the national political order, since their attempts to participate in decision-making and their identification of some principles of ‘popular justice’ were leading to a serious crisis of legality” (p. 146). Earlier chapters, in particular the one on the Philippines, would have been improved if this more dialectical view had been adopted. Popular protest movements have had a large role in shaping the settlement patterns in Manila since the 1970s, for example.
This more political theme is carried forward by the two chapters on Mexico, a general review by Antonio Azuela and Emilio Duhau and a case study of Mexico City by Ann Varley. Both chapters emphasize the political function of very ambitious programs to legalize informal settlements. This serves to entrench the state (and previously the PRI party apparatus) through dependency relationships; while it provides a very low cost solution to the housing needs of the poor, thus depressing the cost of labor to industry. “Very clever” one might think. The catch is that this strategy has led to horrendous sprawl into ravines and up hillsides in the Valley of Mexico, where life is threatened daily by untreated sewage (aquas negras) and long commutes by killer vans (los micros), and where catastrophic loss of life is simply a landslide or earthquake away.
Nairobi is described in “A Tale of Two Cities” (legal and illegal) by Winnie Mitullah and Kivutha Kibwana. This distinction dates from the colonial period, and the rapid growth of the city from 340,000 in 1962 to between 1.3- 2 million in 1989 has been largely due to the increase in the illegal city (p. 199). The authors explode another myth: informal settlements are not where the unemployed sit in despair waiting for formal employment. They are dynamic centers of small businesses (some 40,000 counted in 1993, p. 201) and the self employed. Despite their productive function, the authors identify 17 laws in Kenya that “are outrightly hostile and unaccommodating; their unabashed goal is to bulldoze such settlements and facilitate the wholesale legalization and ‘gentrification’ of urban centres” (p. 201).
A more permissive approach has been adopted in the early years of the New South Africa since1994, indeed even before the fall of apartheid, when the Pass Laws were repealed in 1988. Nevertheless Stephen Berrisford discusses a series of challenges to the profound change in territorial organization and access that is required in South Africa’s cities. Judging by how difficult the process of re-districting and establishing cross subsidies for services in cities like Johannesburg and Cape Town has been, there is a long way to go. Pressure from below from the civic organizations, and, to some extent, the trade unions, is strong; middle class and elite interests in maintaining their spatial enclaves of privilege and their levels of service are also strong.
Much of this book discusses the experience of popular, local participation in urban improvement schemes, in planning, and in urban management. Sergio de Azevedo rightly points to the difference between what he calls “instrumental” participation, limited to direct beneficiaries of top down projects, and “neo-corporatist” participation, in which a cross section of the community participates fully with officials in regulatory and planning activities. He discusses the potential and limitations of this kind or citizen based self management. In this he seems to concur with Auslan’s call for new models of regulatory mechanisms (p. 47).
Auslan notes that the crisis of urban governance and legality revolves around two more general challenges: legitimacy of the state on the one hand, and on the other, a mounting consensus that people have a human right to basic shelter and urban services. He notes that to promote public health, public safety, and environmental protection requires innovative legal frameworks that direct or constrain the effects of economic activity (p. 46). Given the enthusiasm for de-regulation that accompanies neo-liberal economic thought, I have to wonder if Auslan’s is a voice in the wilderness.
Alain Durand-Lasserve makes a convincing case for diverse, flexible, and decentralized approaches to progressive “upgrading” and incorporation of illegal settlements. He sees this happening in many cities in part motivated by the failure of more ambitious attempts to impose a unitary approach, partly by the trend to extend commercial relations into the informal housing market and decrease of “squatting”, and party by the increased role of citizen based groups at neighborhood level in self management. The implications of these trends are more tolerance for legal pluralism and the use of what he terms “appropriate” norms and standards.
While there is a great deal in this chapter – indeed the whole volume – that rings true with my experience as coordinator of a United Nations University study in six large urban regions (the metro regions of: Mumbai, Manila, Johannesburg, Mexico City, Los Angeles, and Tokyo), I have two lingering doubts. First, Durrand-Lesserve himself points out that most success has been obtained where economic growth has been strong (and associated with the development of housing finance systems, accommodation between formal and informal legal systems and land development practices). It remains to be seen whether the juggernaut of economic globalization and neo-liberal governance (e.g. free trade, privatization of government function) will distribute economic growth equitably enough to satisfy the pre-condition identified. As Miguel Rosetto, lieutenant governor of Rio Grande de Sul state in Brazil, stated in Quebec City at the Summit of the Americas in April 2001, the expansion of free trade to all the 800 million people in the Americas “will simply have no room for disadvantaged people” (Anthony DePalma in New York Times, 21 April 2001, p. A6).
My second doubt, or caution, concerns norms and standards. This point brings me around full circle to the time spent in El Salvador following the earthquakes there in January and February of 2001. I would hope that “appropriate” norms and standards would include “minimum” standards compatible with safety. For example, application of minimum internationally accepted norms excluding development of steep slopes derived from particular geologies would have prevented the loss of lives when 400 houses were buried in Nueva San Salvador (Santa Tecla). Likewise, application of earthquake resistant design and building practices would have prevented the loss of tens of thousands of lives in northwestern Turkey in 1999 and in Gujarat in 2001.