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Abstract
Hernando de Soto’s best-selling book The Mystery of Capital argues that economically disadvantaged countries lack institutional arrangements that can spur economic development and capital growth. This article questions de Soto’s institutional economist account. It draws on a 14-month ethnographic study performed at two rural field sites in Colombia and in the central government office responsible for promoting land programmes designed to improve the living conditions of rural communities. This study, which focuses on the daily practices of public officials and rural campesinos, suggests the importance of the title document, and in particular the public deed, for land ownership. It describes the process by which landownership is created by the issuance of the land title document and highlights some important elements and untended consequences that are often neglected in this process of making land a legal and economic asset.
Acknowledgements
The author would like to thank the participants at the faculty workshop ‘The Public and Private, beyond Distinction’, which took place at Cornell Law School in September 2012. In particular I would like to thank Professors Mitchel Lasser, Eduardo Peñalver, Aziz Rana, and Annelise Riles for their helpful comments and suggestions, and Toby Goldbach for her help with the final version of article.
Notes
1. Colombian Civil Law, art. 762. Possession is defined as: ‘The tenancy of a certain thing with the intention to be lord and owner, whether the owner or whoever is taken for such holds the thing himself or another person holds it in his name. The possessor is reputed to be the owner, whereas another person is not justified as such’ (author’s translation). There are differences between the legal concept of possession under both common law and civil law systems. Whereas in the UK and the USA possession is established as a right, in civil law countries, possession has the status of a fact.
2. A Latin word used in legal circles to denote a previous behaviour that returns after an absence or pertains to a remote ancestor.
3. ‘Division’ in this context refers to the subdivision of a parcel of land among heirs of the deceased owner or among buyers of smaller plots from a mother plot.
4. ‘Segregation’ is usually used by lawyers as a synonym for division, to denote the separation of a portion or portions of a collective or complex unity from the remaining portions.
5. All actions regarding real estate property must be recorded in a public deed. Congress of Colombia, “Ley 960/1970,” art. 12; and Colombian Civil Law, art. 1857.
6. Under Colombian law ‘termination’ means that the contract terminates because of the impossibility of transferring the plot, given that there was no new act after the promise to transfer the title.
7. ‘Adverse possession’ under Colombian civil regulation is established under article 2512.
8. De Soto himself has often pointed out that his Institute for Liberty and Democracy is not just about titling but about helping governments build a system of public memory that legally identifies all their people, their assets, their business records and their transactions in such a way that they can unleash their economic potential. See De Soto and Cheneval, Realizing Property Rights.
9. De Soto, The Mystery Of Capital, 7–8.
10. Ibid., 8 (emphasis added).
11. Ibid., 50.
12. Ibid.
13. De Soto et al., El otro sendero, Prologue, 34, 35.
14. See Daley and Hobley, Land, describing the influence of de Soto’s ideas on multilateral organisations’ programmes.
15. See Kennedy, “Some Caution about Property”; and Laurent, El misterio de un liberal.
16. Rossini and Thomas, “The Size of the Informal Sector,” 125.
17. De Soto’s work has revived old debates and sparked new ones in a wide range of disciplines. For Economic Theory, and Law and Economics, see Barros, Hernando de Soto; for Law and Development, see Nyamu-Musembi, “De Soto and Land Relations”; for Foreign Policy, see Bourbeau, “Property Wrongs”; for Urban Studies, see Webb et al., La construcción del derecho; for Sociology, see Elyachar, “Mappings of Power”; and for Anthropology, see Hetherington, “Privatizing the Private.”
18. De Soto, The Mystery of Capital, 8.
19. For the sake of the argument in this article I take material possession and ownership to be part of the same conceptual framework of property in Western legal thought. The concept of material possession we assume to be natural, describing the energy put into land to claim it as your own, is the formalisation of a particular relationship with nature. The relationship that allows claiming possession based on energy invested in nature presupposes a formalised mode of thinking about the world around us, a formal kind of knowledge that allows for control of things. In this conception ownership and possession are not contradictory. The concept does not represent the confrontation between registered title owners against squatters but, rather, reveals both of them to be caught by similar legal technologies that allow us to individuate land as a thing to be controlled, in order to understand the energy we invest in nature as an individual act, to make nature the mirror of our own labour. As Rose recognises, possession is a form of communication, a particular language (and, I add, a form of thinking). See Rose, “Possession as the Origin of Property,” 16.
20. Such an aesthetic approach to documents has been taken before in the analysis of draft agreements at international conferences, of ceremonial mats and of financial agreements. Riles, The Network Inside Out; and Riles, Collateral Knowledge. Behind this particular engagement stands an increasing number of scholars in different disciplines trying to relate analytically to phenomena in ways that escape and problematise broad and structural transformations or configurations of society and culture. See Ong and Collier, Global Assemblages. Challenging the divide between culture and nature, such a view has allowed for the constitution of networks between entities as different as documents, people, ideas, computers and institutions. Latour, We have Never been Modern. These works challenge the powerful analytic construction in which we mould our own knowledge practice to propose alternative analytic frameworks. Hann, Property Relations, 45. In Law and Society this particular mode of inquiry constitutes an emerging trend which, after legal consciousness, tries to look at the middle level ‘between citizen and the transcendent rule of law: the ground of institutional practices’. Silbey, “After Legal Consciousness,” 360.
21. Congress of Colombia, “Ley 960/70,” art. 3.
22. See Tony Crook, Exchanging Skin.
23. See Fals-Borda, Historia doble de la Costa; and Machado, “Ensayos para la historia,” 24.
24. For now, I will leave aside the colonial underpinning of this discovery. However, sealed documents and sealed people (slaves) are both very powerful artefacts of colonialism.
25. Here, I draw from Marilyn Strathern’s ideas of individuation and recognition. For Strathern, ‘the individualized Euro-American person is recognizable in the individualized body with its unique characteristics, especially of the face. When other kinds of references are made to bodily character, they may be used as substitutes for body representations.’ Strathern, Property, Substance, and Effect, 172. (The notary looks at the photo ID to establish that the photograph is of the person before her, and this allows the notary to affirm that the name and number given in the ID match the physical characteristics observed in the person.)
26. Bearing witness and validating its authority are both actions intrinsically related to each other in the process of formalising land ownership. The public notary as a representative of the state is able to enforce the relationship that allows the creation of land as a thing to be owned.
27. In this analysis I refer exclusively to the state as a key actor in the legal process of formalisation of land ownership. However, other persons that represent authority, such as the neighbourhood association, the king, the paramilitary, can also enforce such relationships.
28. The idea of allocating finite resources lurks behind the granting of new land titles to those with no land and stands out as a primary concern for both property scholars and policy makers, as Rose points out. Rose, “Invasions, Innovation, and Environment,” 27.
29. De Soto, The Mystery of Capital, 157.
30. Ibid., 162.
31. Kennedy, Some Caution about Property, 54.
32. De Soto, The Mystery of Capital, 157.
33. Scott, Seeing Like a State, 188.
34. Ibid.
35. De Soto, The Mystery of Capital, 162
36. Ibid., 163.
37. Ibid., 171.
38. Ibid., 166.
39. Ibid., 168.
40. Interview with David Jesús Morales, Legal Adviser, Instituto Colombiano de Desarrollo Rural (Incoder), Bogotá, May 19, 2009. Morales was referring to the recently passed ‘Ley de Tierras’ or ‘Ley 1448/2011’, created to facilitate legal venues for victims of violence to recover or gain formal ownership of land they had lost. Congress of Colombia, “Ley 1448/2011.”
41. Congress of Colombia, “Ley 200/1936.”
42. Congress of Colombia, “Ley 135/1961”; and Congress of Colombia, “Ley 30/1988.”
43. Congress of Colombia, “Ley 1152/2007.”
44. Mondragón, “Estatuto rural siete veces infame”; and Coronado, “Réquiem por el campo,” 48.
45. De Soto, The Mystery of Capital, 32.
46. Scott, Conscripts of Modernity, 6.