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land rights

  The institutionalized forms of access to, and control over, land, typically understood as a subset of property rights in general. Insofar as land rights express a relation between a thing and persons, these complex social relationships are usually referred to as Land Tenure. Land rights typically constitute land as property which involves some jural entity (individuals, households, lineages, communities, corporations, nations and so on) that has rights and duties over some object (land in this case) against other jural entities (cf. property rights). Land rights are, however, always more complex than public (state ownership and transfer) versus private (a jural person is the owner in which a market system of transfer is implied) for the very good reasons that virtually everywhere complex mixtures of group (or communal) and individual (private) control exist.

Rights over land are customarily divided into: use rights (grazing, farming, passage, urban construction, collection and so on); transfer rights (movement of ownership or possession through inheritance, gift, sale, pledging, lending and so on); and administrative rights (the authority to allocate or withdraw land from use, to tax it, collect tribute from it, to arbitrate disputes, regulate transfers, entitle it and so on). Rights over land do not necessarily imply ownership (i.e. there can be rights of use or rental). Similarly communal or collective forms of land management — for example customary land law in Muslim northern Nigeria — may confer substantial \'ownership\' security to some individuals; that is to say there are stable and secure use rights in perpetuity. Fully privatized land rights — fee simple — in which rights to sell are not proscribed by laws that assign ultimate ownership to the state or to the powers of indigenous communities, are far from universal.

Rights are often divided among different units of aggregation that claim different \'bundles of rights\'. Such bundles may be nested or ranked in \'hierarchies of estates\' (Glucksman, 1965). But a right of access for one purpose (collecting wood) does not always imply automatic access for another (grazing). Concepts of rights are often rooted in modes of livelihood and their relation to the market. Pastoral communities may have rights to rangeland as a \'common property\' system (McCay and Acheson, 1987): this does not mean open access (res nullius) but rather complex lineage or confederal systems of regulation which link land and water rights (res communes). Foragers may have rights of use rather than ownership.

Typically a distinction is made between systems of rights over land rooted in customary or traditional law, and European systems of property law. African systems of customary law are especially complex and have survived into the post-colonial period (but not without change) as a deliberate artefact of colonial policy to sustain (i.e. not to disrupt radically) local \'tribal\' or ethnic institutions (Bassett and Crummey, 1993). Customary law allocates bundles of rights; that is to say the identification of some forms of farmland as family or collective confers particular obligations (everyone must work on them) and disposition (by the male head of household). Personal plots may be for individual gain and use. Allocation of land rights in customary conditions may be through the intermediation of village heads or male heads of households. Women therefore may gain (and lose) access to land rights through marriage. Gender and conjugality are typically important dimensions of land rights allocation in rural African communities which confirms the fact that land rights are not so much about relations between people and things as between people.

Customary law or traditional land rights are often counterpoised against European notions of property. But it should be remembered that custom is dynamic and flexible and was manipulated by colonial states as much as local peasants and headmen during the colonial period as market and other opportunities arose. As a consequence the history of customary land rights is riven with complex struggles and negotiations over bundles of rights and duties, only some of which reached local courts (Berry, 1993). In the post-colonial period, growing commercialization, land scarcity and efforts at state regulation and registration have further deepened these complex material and symbolic struggles over land rights (Carney and Watts, 1990). The possibility of female exclusion is always present in what passes as the modernization of customary tenure. If customary land rights are dynamic and complex, European property rights — the exercise of a perpetual, exclusive and absolute right over land — is also far from a piece: English and French legal traditions differ quite substantially, for example.

In family farm systems under freehold or so-called communal or customary land rights, it is often assumed that there are necessarily problems of access to credit (no collateral confirmed by insecure land rights), tenancy regulation, taxation (inchoate senses of ownership) and fragmentation. Land titles and registration are seen as ways of resolving these problems, by reducing the problems of asymmetric information (knowledge and trust is undermined as sales increase between community and non-community buyers and sellers) and providing an institutional framework to facilitate land sales. Such transfers are assumed to enhance efficiency by transferring land from bad to better farmers and by ensuring credit through collateral. In practice, however, various forms of land titling under state auspices (for example in Kenya) have produced greater land concentration, dispossession, and loss of rights by vulnerable groups (especially women: see Downs and Reyna, 1988).

Boserup (1965) has provided an account of the emergence of private rights in land as population density increases. Her discussion makes clear that property rights in land are not simple and unrestricted; neither is the process linear. As land becomes scarce, general and inheritable cultivation and grazing rights are complemented by rights to resume cultivating specific plots after fallow, to inherit specific plots not general cultivation rights, to rent out plots, to use them as collateral, and to sell land within the community. When the right to sell includes sales outside the community, the last vestiges of custom disappear and private rights are complete. Much of the work on African land rights — which are some of the most complex in the world — has shown how the Boserup model is too narrowly demographic and obscures the unevenness and irregularity of \'privatization\' (Bassett and Crummey, 1993; Berry, 1993). It is precisely because land is a fictitious commodity, embedded in social and cultural relations under customary law, that the process by which land is converted into property will always be contested and a matter of symbolic struggle (Polanyi, 1944).

Titling and registration are ways in which rights and duties over land are changed; that is to say they are instances of land or agrarian reform. Land reform aims at transforming agrarian structure — that is a system of social relations and a system of land tenure/rights. Land reform can have a multiplicity of forms and implications for land rights, however. In some cases reform may involve little more than the regularization and stabilization of tenant rights. In others there may be widespread appropriation of land above specified ceilings, and redistributions of land to landless tenants and semi-proletarians (for example the Land-to-the-Tiller Programmes in Taiwan and Kerala: see Herring, 1980). During the twentieth century, most land reforms within capitalism — unlike the experience of collectivization in the former socialist bloc — were of two broad types: anti-feudal, seeking to spur on commercialization and accumulation through a landed elite, a commercial farmer class or peasants; and seeking to create shifts in the dominant rural class from capitalist landed elites to smallholder or peasant operations, or to amplify the reform sector under one of these groups (de Janvry, 1980). Land reform as a way of transforming land rights can therefore fulfil conservative, liberal, populist or radical political impulses. The collectivization of land rights in the name of socialism has been an object of extraordinary debate, not only over the use and consequences of state violence, but also in terms of the lacks of incentives within agrarian socialist systems (Medvedev, 1980).

Land rights which take the form of rental or tenancy have played a particularly important role in economic and classical political economic theory. The early work on the agrarian question addressed the issue of the English road to agrarian capitalism in which large landowners actually rented land to an aggressive class of commercial farmers. Debates over the purported parasitic nature of landlords, and of the consequences of land rent on capitalist accumulation, have a long pedigree (Harvey, 1982). More recently, tenancy and sharecropping have been explored by institutional economists for whom property right assignments (share-tenancies for example) are \'second best\' adaptations of farmers in rural areas of the Third World to informational and market imperfections. Communal land rights or sharecropping can be seen as adaptations to high transaction costs or to the imperfections of intertemporal markets (Binswanger and Delinger, 1995). Political economists often see these land rights as sources of exploitation, and focus more on the struggles over the determination of the share or rental agreement. While peasant and Third World agricultures have always been characterized by complex contractual relations and inter-linked markets (land rights for example may be linked to credit), agricultural production in the advanced capitalist states is increasingly characterized by forms of contracting in which private ownership of land and assets is tied to a company which specifies control over the production, price and quality of products (Watts, 1994; cf. agribusiness; agro-food system).

In the wake of the collapse of actually existing socialisms in 1989, and the earlier reforms in China and eastern Europe in the 1960s and 1970s, one of the most important recent re-figurations of land rights has been the so-called decollectivization of state farms and communes (Szelenyi, 1998). Personal ownership of land in socialist economies was rarely obliterated but the reforms slowly reintroduced various forms of personalized use and de facto long-term ownership (for example 99 tenancy types in Vietnam). The variation within the former socialist bloc has been enormous. In some cases (China), the decollectivization witnessed a remarkably egalitarian redistribution of private property rights in land; in others there have been highly contested forms of land restitution (Nicaragua, Hungary); and in others nothing short of administrative chaos (Russia) as the weakened state is incapable of providing an institutional structure in which land can be sold or redistributed with the possibility of effective use (Kitching, 1998). The experience of the socialist states affirms the complex forms of hybrid rights which emerge in the name of land privatization, and the complex struggles — the elasticities as Verdery (1993) calls them — of land rights.

Urban land rights, and especially the workings of city property markets, represent another large literature (Roberts, 1977). In many Third World cities urban land is tightly regulated and is accordingly the source of corruption and substantial rents. At the same time, land invasions are common in which squatters, if they can resist removal by the state, may be able to de facto regularize their claim over waste or state-owned lands (cf. squatter settlements). Land markets in North American and European cities have been the object of substantial research (Harvey, 1989; Castells, 1977), especially in relation to real estates, zoning, redlining and city structure more generally. (MW)

References Bassett, T. and Crummey, J., eds, 1993: Land in African agrarian systems. Madison: University of Wisconsin Press. Berry, S. 1993: No condition is permanent. Madison: University of Wisconsin Press; Binswanger, H. and Delinger, K. 1995: Towards a political economy of agriculture and agrarian relations. Washington, D.C.: The World Bank. Boserup, E. 1965: The conditions of agricultural growth. New York: Aldine. Carney, J. and Watts, M. 1990: Disciplining women? Signs 16 (4): 651-81. Castells, M. 1977: The urban question. Oxford: Blackwell. de Janvry, A. 1980: The agrarian question in Latin America. Baltimore: Johns Hopkins University Press. Downs, R. and Reyna, P., eds, 1988: Land and society in contemporary Africa. Hanover: University of New Hampshire Press. Glucksman 1965: Politics, law and ritual in tribal society. Oxford: Blackwell. Harvey, D. 1982: Limits to capital. Oxford: Blackwell. Harvey, D. 1989: The urban experience. Oxford: Blackwell. Herring, R. 1980: Land to the tiller. New Haven, CT: Yale University Press. Kitching, G. 1998: The revenge of the peasant. Journal of Peasant Studies 26 (1): 43-81. McCay, B. and Acheson, J., eds, 1987: The question of the commons. Tuscon: University of Arizona Press. Medvedev, R. 1980: Soviet agriculture. New York: Norton. Polanyi, K. 1944: The Great Transformation. Boston: Beacon. Roberts, B.R. 1977: Cities of peasants. New York: Sage. Szelenyi, I., ed., 1998: Privatizing the land. London: Routledge. Verdery, K. 1993: What was socialism and what comes next. Princeton NJ: Princeton University Press. Watts, M. 1994: Life under contract. In P. Little and M. Watts, eds, Living under contract. Madison: University of Wisconsin Press.

Suggested Reading MacPherson, C.B., ed., 1987: Property. Oxford: Blackwell. Waldron, J. 1988: The right to private property. Oxford: Clarendon Press.



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