Land tenure, land law and development: some thoughts on recent debates

Abstract

This paper offers a discussion of some of the features of recent land tenure debates and policies. It argues that two different orientations can be discerned: one that tends to regard land primarily as an economic asset and another that rather takes a (human) rights orientation and emphasises food and shelter security. These different orientations can be seen to be related to contrasting conceptualisations of extra-legality and different ranges of policy options when it comes to the legalisation or formalisation of land tenure and the acknowledgement of arrangements alternative to Western style individual ownership.

Keywords:

• land tenure
• land policies
• human rights

Notes

I thank Edward Lahiff, John Bruce, André Hoekema, and the two anonymous reviewers for the Journal of Peasant Studies for their extremely helpful comments on an earlier draft of this article. The original draft was elaborated in the context of the research project ‘The Mystery of Legal Failure? A critical, comparative examination of the potential of legalisation of land assets in developing countries for achieving real legal certainty’, carried out at the Van Vollenhoven Institute for Law, Governance and Development, Leiden University, The Netherlands.

¹Here I will not extensively discuss the reports by the Commission on Legal Empowerment of the Poor (CLEP 2008a, 2008b) because they will be the subject of a special section in the next issue of the Journal of Peasant Studies.

²In broad terms we defined land tenure legalisation as a process or procedure whereby possession (including use of) and management (the power to decide over) a tract of land, either directly, or indirectly – through the recognition of community-based rights – is incorporated into the national legal system and the rights and obligations of individuals and collective entities (the subjects of rights) are defined.

³Houtzager (2005) discusses an interesting case of conflict between the Movement of the Landless (MST) and landowners in Brazil and, following Bourdieu, analyses the MST impact in the juridical ‘field’. As Durston (2008) summarises the argument, in deciding on cases of ‘invasion’ of private property by the Movimento sem Terra (MST), a series of judicial decisions ‘in the end legitimized collective actions designed to guarantee the right to protection against hunger. It established the primacy of the right to life over the right to private property’ (Durston 2008, 143). It is a case of judicialisation of social conflict that builds upon the post-authoritarian Constitution of the country, adopted in 1988. As Houtzager (2005, 230) notes in one of the cases he discusses, the Federal Superior Tribunal reversed the São Paulo Tribunal juxtaposing ‘the right to property and the right to claim rights’ and argued that the land occupations should be regarded as an exercise of the rights of citizenship as consecrated in the 1988 Brazilian Constitution, particularly the State responsibility to carry through an agrarian reform.

⁴See also the useful discussion by Cleaver (2003).

⁵For further discussion of land tenure and legislation in Bolivia, see Assies (2006) or INRA (2008).

⁶In response to the 1990 march a number of territories had already been recognised by Supreme Decree.

⁷It should be noted that the 1996 Bolivian agrarian law stipulated that legal rights to rural land in the country should be clarified and regulated within ten years, but that by 2005 only 14 percent of the land has been regularised, despite an expenditure of some US$70 million for a country with some 8.5 million inhabitants.

⁸Converting this surface to market value the Instituto Libertad y Democracia calculates that these rural lands represent US$28.8 billion of ‘dead capital’. In a similar way, in its Mexico report the Instituto Libertad y Democracia (ILD n.d. b) classifies the social property sector of ejidos and community lands created by the Mexican agrarian reform after 1917 and covering over half of the national territory as extra-legal and calculates that this corresponds to US$183.5 billion of ‘dead capital’. In 1992 Mexico changed the famous Article 27 of its Constitution and introduced new agrarian legislation that allowed for the conversion of social property lands into fully alienable freehold under civil law. Purportedly, this was meant to legalise the practice of market transfers of ejido and community lands and it was expected that this would dynamise the agrarian sector (Assies 2008). Interestingly, the CLEP Working Group Reports (CLEP 2008b, 117 endnote 109) note that ‘[T]he fact that only about a tenth of ejidos chose to go this route illustrates that, even at high levels of per capita income, many users see benefits from maintaining communal relations to be greater than those from full individualization of rights’. It is beyond the scope of this article to discuss the intricacies of local politics and power games behind the ‘maintaining of communal relations’. See also Assies (2008).

⁹Nyamu-Musembi (2006) presents a somewhat different account of de Soto's understanding of legality and argues that he equates legality with formal legality and the existence of informal legal orders (legal pluralism) with extra-legality. My point here is that even in the presence of state-backed formalised tenure arrangements, which restrict marketability, de Soto and the ILD characterise these arrangements as extra-legal.

¹⁰Quite curiously, in The Mystery of Capital, de Soto (2000, 165) refers to ILO Convention 169 and argues that it is the basis for indigenous claims to property rights, without mentioning that this Convention expressly refers to ‘territories’ and stresses the collective dimension of such territorial rights, which at least implies quite restricted marketability or fungibility. This is a case of misrepresentation of ILO Convention 169 and of indigenous struggles for recognition of their territorial claims. De Soto (2000, 167) attributes the loss of land rights to elite scheming and swindling, but fails to address the issue of loss of access and rights to land resulting from market forces. Regarding urban contexts Durand-Lasserve (2005) has called attention to what he calls ‘market evictions’ or ‘market-driven evictions’ and suggests that a range of alternatives to individual land ownership should be made available, including collective rights that limit pressure from investors.

¹³The proposal gave rise to an interesting exchange between NORAGRIC (2004) and the ILD (2004b).

¹¹See also Nyamu-Musembi (2006).

¹²See also de Soto (2000, 49–62) and Dam (2006, 134–57).

¹⁴Note that according to de Soto (2000, 179) local property systems are ‘basically similar to national social contracts in Western nations’. Central to his argument is the idea that there is a misfit between the legal system of non-Western states and social reality. It is the legal system that impedes the formalisation of property rights of the mass of the population to benefit only an elite. The mass of the population thereby is driven into informality where they create property relations and (social) contracts similar to those of Western nations, but not recognised by the formal state legal system. He thus totally disregards the complexity of such local arrangements, their ‘social embeddedness’, and the complex constellations of rights – including secondary rights – that may be greatly undermined if the introduction of a Western style property system is pursued. Platteau (1996), among others, provides an insightful description of such features of local arrangements in sub-Saharan Africa. See also Benda-Beckmann (2003).

¹⁵Similarly, regarding urban contexts, UN-Habitat explores intermediate solutions that restrict the marketability of land in order to assure that poor people do not become the victims of what Durand Lasserve (2005) has called market eviction.

¹⁶See also Deininger (2004).

¹⁷See also the 2004 EU Land Policy Guidelines, which state that ‘land registration or titling was thought necessary to achieve security of rights, increased productivity, and access to credit, but experience shows that titles may be neither necessary nor sufficient to achieve these aims’. The EU, much more clearly than the World Bank, links land policy to concepts of citizenship, human rights, and social justice and thus to a rights-based perspective.

¹⁸Cleaver (2003, 13–14) uses the terms ‘bureaucratic’ and ‘socially embedded’ to distinguish between institutions: ‘bureaucratic institutions are these formalised arrangements based on explicit organisational structures, contracts and legal rights, often introduced by governments or development agencies. Socially embedded institutions are those based on culture, social organisation and daily practice, commonly but erroneously referred to as “informal”. It should be clear from my argument in this study that the two are not necessarily easily distinguishable: “bureaucratic” institutions may be “socially embedded”, but are not inevitably so, while processes of bricolage may result in the bureaucratization of “traditional” cultural or social arrangements'. As we have seen, the FAO (2002) also questions the distinction between formality and informality and points out that so-called informal rights may, in practice, be quite formal and thus rather represent an alternative formality.

¹⁹‘Many liberals believe that collective rights are inherently in conflict with individual rights. I will argue that we need to distinguish between two meanings of “collective” rights. Collective rights could refer to the right of a group to limit the liberty of its own individual members in the name of group solidarity or cultural purity (“internal restrictions”); or it could refer to the right of a group to limit the economic or political power exercised by the larger society over the group, to ensure that the resources and institutions on which the minority depends are not vulnerable to majority decisions (“external protections”). I will argue that the latter need not conflict with individual liberty. Indeed, what distinguishes a liberal theory of minority rights is precisely that it accepts some external protections for ethnic groups and national minorities, but is very sceptical of internal restrictions' (Kymlicka 1995, 7).

²⁰Clearly, ‘community’ cannot be construed as something ‘given’ but in itself is a construct forged through coercion and consent.

²¹Freehold and registered long leases ‘lead to land price increases, middle class down raiding, the targeted low income groups moving to other more affordable areas, the destruction of social relationships within the community and unaffordable, non user friendly, transfer costs and procedures, that destroy the currency of the record system’ (UN-Habitat 2003).

²²Similarly one might think of the recognition of land or territorial rights of indigenous peoples as one of the means to achieve a more substantive citizenship in multiethnic and pluricultural societies.

²³‘The single most important source of funds for new businesses in the United States is a mortgage on the entrepreneur's house’ (de Soto 2000, 6).

²⁴Although interest rates were found to be significantly lower.

²⁵Ramírez and Riofrío (2006) suggest that formalisation of land in the ‘Peruvian way’ actually can strengthen the conditions that generate exclusion in the city. See also Calderón (2005).

²⁶For an insightful discussion of the evolutionary theory of land rights see Platteau's (1996) by now classical article. He argues that the beneficial effects of the establishment of private property rights has been much overstated, discusses the exclusionary and conflictive aspects of reforms recommended on this theoretical basis, and argues in favour of building on existing informal mechanisms at the community level. More recently, Fortín (2005), as noted, in her comment on the Deininger (2003) report for the World Bank has pointed to the disjunctive between a cost-benefit analysis according to which at low levels of development ‘eliminating or replacing customary tenure is neither necessary nor desirable’ (Deininger 2003, 62) and the evaluation and protection of property rights themselves, which is a normative issue.

²⁷Home and Lim (2004) comment that instead of listening to the dogs it might have been useful to listen to what their masters have to say, too.