Social property in land and legal transplants in Mexico

With this project, the applicant intends to analyze legal transfer and reception in the history of Mexican land law as well as land conflicts arising from these processes. The starting point is that Mexican land law has been decisively influenced and shaped by European legal systems, US hegemony and transnational law. This is reflected in the co- existence of foreign and autochthonous legal concepts of land property, particularly in private and social property. The concept of private land property was implemented in Mexico by the Spanish conquerors and strengthened by two agrarian reforms: the liberal agrarian reform after the Independence under the influence of the French Revolution and European liberalism; and the agrarian reform of 1992 under the influence of NAFTA and the World Bank. The concept of social land property, on the other hand, originates from prehispanic Mexico and the Mexican Revolution. Ideologically, it is based on indigenous world views and the revolutionary program of Zapata (Zapatismo). Today, this heritage is intensively defended by social movements. The two forms of property are integrated in the Mexican legal system as follows: Private property is subject to private law which, according to classical European legal thought, deals with relations between individuals and is opposed to public law which deals with the relation between individuals and the state as a sovereign. Social property, on the contrary, falls under the area of "social law", a category unknown in European legal thought which evolved from the revolutionary Mexican constitution and according to Mexican doctrine regulates relations between collectives. Social property is deemed to have a social function and distributes land not as a commodity but as means of existence and collective motherland ("la madre tierra"). The relation and the conflicts between these two concepts are the subject of the applicant`s project. Conflicts about land shaped Mexico`s history and still are one of its most important political issues. Analyzing the legal discourse, the applicant wants to investigate how law reflects, produces and tries to dissolve these conflicts. In particular, she will analyse legislation, preparatory legislative documents, jurisdiction and academic writing as well as contributions to legal discourse by social movements. Theories about legal transplants and imperial law constitute the theoretical framework of this investigation. These theories deal with processes of legal transfer and reception, in particular with the role of the donor and the recipient, their motivations and interests as well as with the forces and counter-forces shaping the reception and development of transplants. Colonial heritage will be considered, but the focus will be on the agrarian reforms after the Independence and of 1992 which shall be compared and contrasted as processes of legal transfer and reception. The Mexican Revolution as a reaction to the results of liberal land politics after Independence and current social movements which - invoking the revolutionary program of Zapata - refuse the reform of 1992 shall be analyzed as counter-forces within these processes. This research shall contribute to the understanding of legal transfer and reception, in particular of the transatlantic influence of classical European legal thought and the current supremacy of the law of the US and international financial actors and provide a critical discussion about the traditional European concept of immovable property and alternative forms to distribute and cultivate land.