PluriLand: Theorizing Conflict and Contestation in Plural Land Rights Regimes

When and how can legal mobilization over land produce transformative change in contexts marked by colonial legacies, inequality, and authoritarian regression? Are there red lines that courts cannot cross when adjudicating such cases?

In this recording from the Bergen Exchanges on Law & Social Transformation 2026, the PluriLand project presented insights from Brazil, Guatemala, Colombia, Mexico, India and Brazil, interrogating the role of courts, constitutions, and transnational legal frameworks in advancing or constraining redistributive justice: 

Transformative potential and limits of land rights mobilization

Land rights occupy a central position in debates about inequality, colonial legacies, Indigenous rights, constitutionalism, and sociolegal transformation. In 2025, we published two articles in the Annual Review of Law and Social Science where we examined these issues from complementary perspectives.

Tatiana Alfonso Sierra, Ana Braconnier De León, and Rachel Sieder’s “Indigenous Peoples and Land Claiming in Latin America” examines Indigenous Peoples’ judicialized land and territorial claims across Latin America, particularly collective land titling and free, prior, and informed consultation (FPIC).

Jackie Dugard, Lara Côrtes, and Ana de Mello Côrtes’s “Transformative Constitutionalism and Land Rights: South Africa and Brazil”  analyzes collective land-rights adjudication in Brazil and South Africa through the Transformative Constitutionalism lens.

Despite their different geographical and theoretical approaches, we reached a central conclusion: legal recognition of land rights is important but does not necessarily produce structural transformation. Formal recognition must be distinguished from substantive changes in land distribution, political power, decision-making authority, and access to resources. The transformative potential of litigation therefore depends on implementation, redistribution, protection of collective rights, and changes in underlying power relations.

In a nutshell, we found that:

Land inequality reflects colonial and racialized structures
Contemporary land conflicts cannot be understood simply as disputes over property. Land distribution is deeply connected to histories of colonization, racial discrimination, dispossession, exclusion, and unequal political power.

For instance, Indigenous Peoples in Latin America have experienced continuing dispossession, while legal systems have often approached land through liberal property, concepts that differ from Indigenous understandings of land as territory. Land injustice consequently has both socioeconomic and cultural dimensions. Similarly, in South Africa and India, land disputes are intrinsically linked to their colonial and racial histories. The “Transformative Constitutionalism and Land Rights: South Africa and Brazil”s article show that constitutional projects sought, at least in part, to address inequalities inherited from colonialism and racialized systems of exclusion. Land is a structural issue, rather than merely an individual property dispute.

Constitutional and judicial recognition creates opportunities for marginalized groups
In Latin America, constitutional reforms and international human-rights instruments increasingly recognize Indigenous Peoples as collective rights-holders. This recognition has enabled Indigenous communities to bring land and territorial claims before domestic and international courts. In the overall, constitutional reforms similarly expanded judicial protection of rights and created mechanisms through which collective land claims could be pursued. Litigation thus represents an important institutional development because marginalized groups can challenge established property arrangements through constitutional and judicial processes.

Recognition and redistribution are distinct dimensions of justice
Drawing on Nancy Fraser, Alfonso Sierra, Braconnier De León, and Sieder argue that Indigenous land injustice involves both cultural and socioeconomic dimensions. Recognition can address exclusion and cultural domination, while redistribution must address material inequality and dispossession. The Brazil–South Africa study reaches a related conclusion through transformative constitutionalism. It asks whether constitutional adjudication changes the material and sociolegal conditions that constitutional reform was intended to transform. A formally progressive constitutional provision does not necessarily produce such change. Thus, recognition should not automatically be equated with redistribution or transformation. A community may obtain legal recognition of collective land rights without gaining effective control over its territory, resources, or political decisions.

Collective land rights challenge conventional property concepts
Collective land rights are important because they challenge the assumption that land is primarily an individual commodity or private property. Indigenous and natove understandings of land often emphasize territory, encompassing social, cultural, political, economic, and spiritual relationships. Collective rights therefore implicate autonomy, self-government, territorial management, and self-determination. Also, collective land rights can prioritize the social value of land over its market value, potentially challenging neoliberal property regimes and entrenched private ownership.

Courts alone cannot guarantee social transformation
Courts alone are insufficient institutions of social change. We found that judicial decisions can produce important legal recognition, but implementation is frequently slow or incomplete. Formal recognition coexists with continuing dispossession and extractive development. The Brazil–South Africa study likewise cautions against court-centered approaches. Its framework evaluates adjudication in relation to broader constitutional objectives and recognizes that courts are only one among several potential venues of transformation. The significance of land litigation must therefore be assessed beyond the text of judicial judgments.

Implementation determines whether rights become effective
Legal recognition must be distinguished from the practical realization of rights. Court-ordered remedies take years to implement, while state institutions often fail to demarcate, title, protect, or enforce Indigenous territorial rights. Continuing implementation and enforcement challenges persist in our empirical cases. The persistence of land claims in courts can indicate that constitutional promises remain unrealized, while continued litigation demonstrates that constitutional frameworks provide marginalized groups with mechanisms for pursuing collective claims.

In conclusion, formal legal victory and substantive social transformation are distinct outcomes. Courts can open pathways for marginalized communities to challenge established land regimes, but lasting transformation requires effective implementation, material redistribution, collective control, and changes in the power structures underlying land inequality.

Mexico:
Jorge Peláez analyzes the ways in which conflicts arising from the de facto dispossession of land and territory from Indigenous, Afro-Mexican, and peasant communities in Mexico have been judicialized in the face of diverse investment and development projects (extractive, tourism, energy). The trajectory of the judicialization processes of land and territory in Mexico, has echoed the discourse on land rights and tenure that has been in place since the Mexican Revolution, without tackling contemporary threats of the extractivist model for the land of rural communities. Mainly, legal mobilization in Mexico is highly effective in temporarily suspending mining projects but generally fails to secure the cancellation of the mining concessions that authorize them. This produces what he describes as “endless collective action”: although territories may be protected for a certain period, projects can potentially be reactivated at any time. 

Guatemala:
Rachel Sieder and Ana Braconnier De León explore the effects and limits of judicialization of Indigenous land claims in Guatemala, arguing for an approach that centers Latin America’s political economy, based on large landholdings, private property and ongoing colonial forms of dispossession and extractivism. We argue that Indigenous litigation before the Constitutional Court and the constitutional rulings that disrupted dominant forms of land governance based on historical dispossession and elite control raised the specter of transforming Guatemala’s extractive, colonial political economy, thereby crossing “red lines” which ultimately led to backlash, court capture and judicial decisions that entrenched the hegemonic land regime.

Colombia:
Tatiana Alfonso looks at the interaction between politics, forms of mobilization of rural actors, and waves of recognition of political identities, in judicialized land conflicts in Colombia. During two decades after the constitutional reform of 1991, the plurality of legal regimes in the Colombian context created several waves of recognition of ethnic identities (indigenous and black communities), at the expense of peasants as political actors and as subjects of the right to land. It suggests that the co-evolution of political identities, land regimes, and distributive conflicts at the national level, shape the shifting margins of structures of legal opportunities for judicial claims of rural life in Colombia. Moreover, the analysis of institutional interventions after judicialized claims demonstrates that collective paths for securing land rights have been more transformative for rural communities against an agrarian structure that privileged individual rights in a context of armed conflict. The response of courts to land claims cannot be understood independently from the historical configurations of land regimes, political power, and collective organization inherited from previous reform cycles. The concept of “land legacies” provides a useful bridge between historical institutionalism, socio-legal studies, and theories of collective action.

Brazil:
Ana Carolina Alfinito studies land rights litigation in the Brazilian Amazon as a pivotal strategy to impede the encroachment of extractivism into territories that are necessary for the social reproduction of marginalized rural subjects. She argues that, a field marked by multiple, fragmented and uncoordinated processes of judicialization, court rulings and their implementation have excluded most marginalized rural subjects from decision-making about mineral extraction, contributing to hierarchization and conflict amongst the Indigenous, traditional and peasant communities and to the strengthening the mining corporation’s “divide and rule” strategy. She offers the concept of “extractive recognition” as the arrangements and the ways in which juridification around and against mining projects plays out in extractive frontiers.

South Africa:
Jackie Dugard explores the legal mobilization by the Xolobeni community in the Eastern Cape and the adjudication of two cases (Baleni and Sustaining the Wild Coast) brought by community members to defend their counter-hegemonic, sustainable way of life against extractive industries. Exploring how the courts and the community have navigated the clash between the hegemonic extractive industry paradigm and the community’s counterhegemonic “Alter-Native” eco-paradigm, she shows the extent to which the law (as instrumentalized through adjudication) has advanced (or frustrated) the community’s vision of an Alter-Native transformation in South Africa or upheld the government’s embrace of apartheid-inherited extractive capitalism, albeit in a (partially) deracialized form.

India:
Namita Wahi’s work examines the role of transformative constitutionalism in relation to cases of legal mobilization against mega projects in India, and the role that the Forest Rights Act can play in protecting Indigenous people’s claims to the indivisibility of their territories.