Land Tenure Research Paper

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1. Introduction

1.1 Scope And Emphasis

Land tenure, connecting to much-debated issues of human territoriality and sovereignty, can be approached at any level of scale, from domestic to cosmic. As presented in this research paper, land tenure moves beyond the confines of conventional English legal terms like ‘rights and duties’ and political-economic ones like public or private ‘property’ or ‘ownership.’ A wider array of concepts, taking real access, attachment, and mobility into account, is needed. Visas and border blockages matter no less than plot markers or title deeds. Terms and translations—for people, things, and links between—are critical throughout.

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Land can refer to space or place, often denoting material substance deemed immovable, and sometimes connoting belonging. In some tongues it takes several distinct words to translate, and corresponding terms may or may not include water, plants, animals, people, and built or dugout structures. ‘Tenure’ (from L. tenere, to hold) or landholding need not refer just to a particular form of legal, political, or economic regime (such as freehold, fiefhold, or collective village ownership) but can indicate human-land attachment in a broader sense, taking account of unofficial, illegal, or occasional use, and of persons living, dead, or unborn.

1.2 Sovereignty And Strife

‘Nearly all social struggles in Antiquity,’ claimed Max Weber, ‘were essentially for the ownership and use of land’ (1988, p. 343). He might say the same for recent times. Particular regions have hallmark forms of land tension and strife, simplified and sharpened in mass media if not also in scholarly representation. Such are ethnoreligious struggles over autochthony in the Levant and Northern Ireland; forced transmigration in Indonesia; latifundio, minifundio, squatting, and private militias (‘goon’ squads) in Hispanic America; small-tribe survival struggles in Amazonia; landlord-tenant exploitation in South Asia; plantation oppression in the Caribbean and island southeast Asia; collectivization and decollectivization in Russia and China and states in their hegemonies; farmerherder conflicts in the American west or the Sahel; individual titling that threatens women, children, and the rural poor in the African tropics. But none of these regions monopolizes the tenure issue for which it is famed. Tasks for social scientists and humanists include finding particularities and exceptions, bringing to light indigenous practical solutions, and assessing the performance of currently sovereign authorities.

2. Historical Background

Records of land claims and transfers have been dug up among some of the earliest known writings in Mesopotamia from four to five thousand years ago, along with royal edicts canceling subjects’ debts and reversing land forfeitures to creditors. Plato’s and his student Aristotle’s debate about the merits of public versus private landholding in the Aegean polis echoes two millennia later in European and American traditions. John Locke, Adam Smith, and Herbert Spencer are still widely cited by private property’s upholders, while the young Jean-Jacques Rousseau, Karl Marx, Pierre Proudhon, and (in America) Henry George are champions of its critics.

2.1 Evolutionist Political Philosophy

The spread of European imperial power and the westward expansion of Euro-American settlement in the late nineteenth and early twentieth centuries, accompanied as they were by wholesale expropriation or disenfranchisement of foragers, mobile herders, and swidden (slash-and-burn, long fallow) farmers, led sociologists and anthropologists into the study of land tenure as their disciplines coalesced. Jurist Henry Maine’s vision of Roman property law’s and human history’s evolution from ascribed ‘status’ to achieved ‘contract’ was qualified by lawyer-anthropologist Lewis Henry Morgan’s conclusion in Ancient Society (1877), that individual property was an inadequate basis for civilization’s further progress. Societies moved, said Morgan, from (L.) societas, i.e. ties based on kinship and other particular ties, to civitas, ties based on territorially defined polity, but this did not always mean upward progress either. Karl Marx and Friedrich Engels, inspired by Rousseau and Morgan among others, envisaged history as a one-way flow through stages of prefeudal tribalism, feudalism, capitalism, socialism, and finally a future communism with abolition of private property and state government.

Evolutionist theories based on a largely imaginary prehistory and assumptions of unilinear change continue to resound in legal, political, and economic circles. But twentieth-century anthropology has made it more apparent how tenure change can zigzag and backtrack, and how many different forms of tenure can be ‘modern’ at once, sometimes in close coexistence.

2.2 Persons, Things, Systems

Early ethnography in Australia and Native America, and Bronislaw Malinowski’s work on Trobriand Island gardening in Melanesia in the 1910s, revealed indigenous concepts in which human groups and spaces (however defined) were deemed aspects of each other, often inextricable from spiritual beings or forces. Research in colonial Africa in the mid-twentieth century depicted how land tenure tied tightly into cognition, language, and translation; kinship and friendship; political control and hegemony; religion and ritual; aesthetics and myth (Biebuyck 1963). Monarchs’ and chiefs’ control over land (as in Buganda or Ashantiland) appeared to be part and parcel with control over people, but their rights excluded alienation by sale and other rights often identified with ownership. Landholding was justified by clearing, residing, or working on the land, by conquest, by membership in a kin or local group, by chiefly assignment and tribute, or a mix of these. Multiple rights of different groups to use land for different purposes, for example farming, grazing, and thatch, firewood, or clay collection, overlapped in complex ways not captured by terms like ‘property’ or ‘ownership.’ In ‘acephalous’ (politically uncentralized) societies like those of Tiv in Nigeria or Chagga in Tanzania, land territories were often found closely linked to genealogy of clans or lineages, shifting and stretching as these moved, grew, or shrank. Here and elsewhere in Africa, land was spoken of as an active interest not only of the living, but also the dead and unborn. To Audrey Richards, Lucy Mair, and other British-trained social scientists, land tenure appeared as part of complex, functioning cultural systems. Max Gluckman’s southern Africa-based work on ‘hierarchies of estates’ over land, for instance of use, transfer, and administration, influenced a generation of tenure studies. Gluckman (1965) observed that property is not just about rights of people over things, but also about duties between people with respect to things.

2.3 Structure And Process Of Inequity: Critical Rethinkings

In the 1960s and early 1970s, Latin American-inspired scholarship on dependency and ‘modes of production,’ in a Marxist vein, criticized the exploitation of rural and tropical peripheries by metropolitan capitals through agribusiness or plantation owners or the cooptation of comprador (buyer) elites. South America, the continent with the longest history of European colonialism, had, some observed, the most uneven distribution of landholdings. Parisian Marxist structuralists in the late 1970s revised the view that capitalism eroded all other forms of tenure and exchange (quasi-feudalism, family farmholding, etc.), contending instead that it encapsulated and preserved these for its own profit.

In the 1980s and 1990s social scientists with political-economic interest turned their attention to attempts by national regimes to monopolize power over land relations, particularly in Africa. State attempts to nationalize, privatize, or socialize landholding now looked like raw or subtle power grabs (Downs and Reyna 1988, Le Bris et al. 1991). Large-scale resettlement efforts, as in Ethiopia or Indonesia, seemed to some analysts like attempts to remove or disorient potential dissidents. Attempts to ‘villagize’ scattered farmers or sedentarize mobile herders appeared as attempts more easily to tax, conscript, and regulate them (Scott 1998). Postmodernist and poststructuralist scholars, meanwhile, eschewed the notion of timeless tenure ‘systems,’ preferring to see complexity, fragmentation, indeterminacy, negotiability, contestability, and historical contingency, in humanland as in human-human interaction. In town and country, they criticized tenure regimes based on race, class, and gender.

Toward the turn of the millennium, a plurality of newly empowered indigenous voices in southern countries helped force scholars and jurists concerned with land tenure everywhere to reassess their most basic terminology and philosophical premises. Assumptions of human dominion over land, of individualistic rights and duties, and of the sanctity of arbitrarily drawn borders and boundaries that blocked human movement, all came under criticism.

3. Metaphor And Rhetoric

Human communication about land draws heavily on metaphoric imagery from the human body (headwaters, heartlands, fertility, etc.), kinship (mother-, fatherland), domicile (gateway to Asia), and other human-centered sources. Such metaphorizing imbues poetry and politics, while imagery of ‘grounding’ or ‘terra firma’ imbues legal and scientific discourse. English terms like ‘property,’ ‘rights,’ or ‘ownership’ sometimes carry culture-bound overtones of civilization, justice, or morality. To speak of land as a commodity denies psychological attachments to space and place. To speak of land as a ‘resource’ implies it exists to serve human use. Between people who assume that humans can own land and master it, and those who assume on the contrary that humans belong to the land and must respect it and conform to its requirements, communication easily goes awry.

People who derive their livelihood from land in different ways perceive and communicate about it in different geometric and geological idioms. Whether in the Andes, the Sahel, or Lapland, transhumant herders who must focus on linear access routes tend to clash with farmers who focus on fields along the way, when animals eat or trample crops. Seasonal and tidal wetlands and mudflats (as in the Niger delta, in the Sudanese Sudd, or along the Senegal River) are frequently contested by farmer-fishers, ecologists, and developers using different terminology.

4. Land And Tenure Reform

While land reform, in English, conventionally refers to redistribution of holdings, land tenure reform refers to changes in the more basic rules and understandings by which land is occupied, used, or transferred. Among many kinds of tenure reform are proclamation of sovereignty or eminent domain, implementation of titling (i.e. registration), and change in rules about transfer (loan, rental, sale, inheritance, etc.). Dozens of twentieth-century national tenure reforms sought to individualize or collectivize landholding.

Their histories are full of ironies and surprises. Frequently, reforms aimed at improving distribution of holdings have ended up worsening it, whether because of unequal information, implementer bias, deceit, or reneged deals. Moreover, reforms aimed at boosting production have often reduced it instead, for instance because new owners or occupants lacked farming experience or acquired the land only for speculation. Land tenure is so tightly bound up with kinship, religion, and other aspects of culture that a newly imposed tenure regime seldom expunges what was there before. More often, it just crowds new procedures together with old, allowing the wealthy, powerful, astute, or well connected to gain at others’ expense by manipulating confused or conflicting principles.

There are exceptional cases of successful land and tenure reform. One celebrated example is Taiwan’s land redistribution in 1953, swiftly and efficiently implemented after a period of Japanese occupation had weakened local resistance. Attempts to emulate it elsewhere have seldom succeeded.

4.1 Bureaucratic Simplification

Bureaucratic administration, tending to push toward abstraction and universalism in its publicly professed goals, simplifies complex realities of human culture and ecology, sometimes beyond recognition, to make people or spaces manipulable for taxation, military conscription, etc. Empty spaces on maps, or designations like ‘vacant’ or ‘underproductive,’ help justify land grabs, disfavoring swidden farmers, transhumant herders, foragers, and other occasional users. Titles issued to individuals ignore claims of dependents. But subjected people may thwart imposed tenure regimes, for instance by continuing to transfer fields without informing state authorities, as happened in Kenyan and other African cases of titling reforms over the second half of the twentieth century. Real and paper tenure diverge further.

Nowhere do real people live their lives consistently by capitalist or socialist principles, whatever they may think they do. In agropastoral Africa, for instance, land farmed by families or individuals may be expected to be opened for grazing by the animals of some broader public after harvest. Property shifts between public and private, or remains subject to multiple tenure ‘systems’ simultaneously.

4.2 Collectivization And Villagization

Collective ownership and production have been part of utopian visions since Plato’s Republic or before, and many different attempts have been made to bring these into reality in monasteries or other singleor mixedsex religious or secular communes, sometimes modeled upon families. Mexico’s ejidos after the 1910 revolution, and Israel’s kibbutzim more recently, have been closely watched by admirers and critics alike. Marxist-inspired attempts to collectivize landholding under state aegis in the Soviet Union between 1917 and 1931, and in China after 1949, have been emulated in various parts of the world, notably eastern Europe, Vietnam and Cambodia (Kampuchea), Cuba, Tanzania, Ethiopia, and Lusophone African countries including Angola and Mozambique.

While late twentieth-century Chinese history has shown that some forms of state-organized collective farming can raise productivity, improve distribution of food and other vital resources, or both, if starting from a feudal or quasi-feudal baseline, people in few parts of the world have been able to emulate socialist tenure reforms with lasting success. Commonly, workincentive problems get in the way, and local populations chafe under centralized bureaucratic control of their lives.

Notable failures have been attempts to concentrate rural people into villages where the land could not sustain them, as in Tanzania’s compulsory villagization from 1973 to 1976 (an experiment duplicated in Ethiopia a few years later). Similarly, savannah borehole well projects, for instance in Botswana or across the Sahel, have led to overconcentration of animals and overgrazing. Two policy conclusions on herders and farmers are clear enough: (a) people who live spread out, or mobile, usually have good reasons for wanting to stay that way; (b) good intentions, in land tenure reforms, are about as likely to produce harmful as helpful results.

4.3 Titling And Individuation

Another kind of tenure reform is the titling or registration of individual claims for the first time. ‘Private’ property is often used to mean individual property, but the two need not be the same. State and local governments and landholding companies have several ways of registering land titles and transactions. Among the most commonly applied in former British colonies is the Torrens system, devised in Australia and New Zealand in the 1860s, where it allowed grid allotments for new settlers.

Where people already live, titling land in the names of individuals, under state guarantee, does not necessarily increase security of tenure as often assumed. It may decrease it. Instructive was the General Allotment Act (or Dawes Act) of 1887, by which the US government allowed for the awarding of individual land titles to Native Americans (or First Peoples). Between 1887 and 1932, about two-thirds of Native American lands were lost to immigrant settlers and speculators, who were not slow to exclude its former inhabitants and users.

British, French, and Belgian colonial administrations appear to have paid this story little heed in launching land titling programs in their colonies. Early twentieth-century titling initiatives were expanded to nationwide scale in the Kenyan model established under the Swynnerton Plan in 1954 and passed into law in 1957. That model, which still continues, was being emulated elsewhere in Africa at the turn of the millennium.

At least as often as not, land titling in new states and perhaps old seems to speed the concentration of holdings into fewer hands. Individuals newly freed of social constraints on selling, mortgaging, or pledging erstwhile family or clan land do not always make wise decisions. Speculators and accumulators use urban capital and rural off-farm incomes to buy out disadvantaged rural people in periods of drought, plague, or unfavorable prices.

The mortgage, a deadlined pledge linking land/or other property to credit, plays a key part in this process. Borrowers who fail to repay by a specified date forfeit their land to the lender or lender’s agent. The mortgage appears regularly in histories of rural dispossession, not least in England, where law about it has changed many times, and in North America. While seemingly vital to urban and industrial economic life, in rural areas mortgage loans are more treacherous to farming people, particularly where rainfall, infrastructure, and crop markets are unreliable. Although rich like poor may lose lands, mortgage foreclosure contributes heavily to class stratification. Inland tropical settings often lack sufficient industrial or commercial opportunity to absorb newly landless or land-poor people. Even where land titling is accepted, mortgaging is morally debated in many cultural and legal traditions. Shari’a, the sacred law of Islam, forbids mortgaging as sin.

When, and whom, is titling likely to help? Threatened indigenous minorities frequently seek titles to defend their home territories—and by extension, their livelihood and way of life—from more numerous and powerful outsiders who threaten to dispossess or displace them. These may include fortune seekers like ranchers and rubber tappers, as in Amazonia or Malaysia; homesteaders and land speculators, as in the American west; planters, as in the Caribbean; or politicians and their favorites, as in equatorial Africa.

Land titling is never a politically neutral process of recording information. Usually someone gains and someone loses. Gainers are often richer, better-connected, and better-schooled people; erstwhile land borrowers or land clients, who may become owners; and people who emigrate or seek to speculate in land without having to occupy or farm it. Losers include ancillary right holders and dependents, and members of fast-reproducing families. Just as rural people have circumvented or resisted state directives to villagize or collectivize their landholding under socialist policies, as in Tanzania or Ethiopia, they have reasserted the rights of collectivities—clans, lineages, age sets, or voluntary associations—under individualistic capitalist ones, as in late twentieth-century Kenya or Cote d’Ivoire.

4.4 Fragmentation And Consolidation

While economists and agronomists have often favored large consolidated blocks of land for mechanization and economies of scale, anthropologists and ecologists, observing their subjects’ resistance, have found that fragmented holdings may make sound ecological and economic sense in some settings. Unreliable rainfall, acute pest problems, and dicey markets encourage a cultivator to keep a hand in diverse cultivars and microclimates to avoid a total loss. Maintaining multiple holdings also helps conceal wealth from neighbors or tax collectors.

4.5 Irrigated Lands

Nowhere is control over land more hotly political than in irrigated areas, where central authorities may seek to dictate settlement, land and water allocation, inheritance, etc. The centripetal draw of high farm yields in irrigation schemes is sometimes counteracted by the centrifugal push of struggles over control over community and family life, as in the Jahally Pachar rice scheme in the Gambia. Where flood control is a main concern, as in much of irrigated China (or Bangladesh), bureaucratic polities tend to be highly centralized and authoritarian. Where it is not, as in much of Africa, regimes attempting to emulate such models have enjoyed little popular support, often proving fragile and short-lived—particularly where ethnic mixture compounds the adjustment problems of living in close, compulsory synchrony.

All irrigation but the smallest scaled involves inequalities in access to water. The privilege of upstream location in the trench network, implying superior control, often coincides, as cause or effect, with personal or familial wealth or power.

4.6 Displacement And Resettlement

Development programs like irrigation schemes and hydroelectric dams; military travel and war; and environmental hardships like droughts and floods all entail resettlement of large numbers of people. If the land of destination is unoccupied, usually there is something undesirable about it. If it is occupied, then someone has to move over and friction is likely. Late twentieth-century anthropological studies of resettlement, notably by Elizabeth Colson, Thayer Scudder, and collaborators among Gwembe Tonga in Zambia (formerly Northern Rhodesia), showed how resettled people adjust to extreme stress and trauma in patterned and predictable phases. Among their problems are the shaken confidence in whatever leaders are seen to have allowed the misfortune to happen. Helping or allowing communities or neighborhoods to move intact, in so far as their members wish, seems to mitigate the ill effects by keeping at least their social ‘landscape’ familiar. But no kind of human ‘development’ intervention is harder to orchestrate, or more prone to produce catastrophe, than forcing resettlement.

4.7 Agrarian Encroachments

Many contemporary ‘foraging’ peoples reside in difficult environments not of their choosing, for instance in southern and central Africa and northern Canada, where ‘race’ discrimination has been a factor. Attempts to use these peoples as windows into human prehistory—to see how hard people worked, how peacefully they lived, or how well they cooperated—have often led to spurious conclusions.

Foraging, swidden farming, and mobile herding peoples worldwide suffered a varyingly steady diminution of their lands, and sometimes severe dislocation, from before the eighteenth until the late twentieth centuries, often in episodes where racism played a part. The history of Native American foraging and farming peoples after Columbus—a story of military conquest, deceit, misrepresentation of consent, and treaty reneging by Euro-Americans—hit one of its low points in President Andrew Jackson’s Indian Removal Act of 1830, which forced Cherokee, Seminole, and other settled agricultural Native Americans from their southeastern homes to Oklahoma, at the loss of thousands of lives. In another kind of extreme case, Australian law did not recognize the rights of indigenous (or Aboriginal) peoples to land until 1976. In the twentieth century, swidden farmers in tropical and subtropical zones worldwide faced serious threats to their livelihoods under encroachment from sedentary farmers, agribusinesses and other concerns, and under their own population growth. Loss of land for these peoples, as for foragers and pastoralists, has often meant disruption of culture and society in myriad, sometimes indirect ways. The new century and millennium present the challenge, if not of reversing this history, of allowing dignified livelihood to persons constricted or displaced.

4.8 Reserves And Exclusion

Official attempts to fence off wilderness reserves have achieved checkered results, particularly in poorer regions and countries in Africa south of the Sahara and in mainland Southeast Asia. One clear lesson from these attempts is that foragers, herders, or swidden farmers excluded from accustomed lands will tend to subvert the new classification unless somehow included in rewards accruing from tourism, mining, or other commercial exploitation of new parks or reserves.

5. Advocacy And Practice

The activist international defense of land rights of threatened indigenous minorities, particularly in sparsely settled regions pressed for new resource exploitation by outsiders (Amazonia, Alaska, central Africa, northern Australia, Irian Jaya, and elsewhere), crystallized in the Copenhagen-based International Work Group for Indigenous Affairs in 1968, London-based Survival International, in 1969, and Cambridge, Massachusetts-based Cultural Survival, Inc., in 1972, as well as other human rights defense groups. A worldwide movement of indigenous human rights groups, mutually emboldening, has raised public consciousness and achieved changes in national legislation like the Alaska Native Claims Settlement Act in 1971, Australia’s Aboriginal Land Rights (Northern Territories) Act in 1976, and from Canada, the demarcation of Nunavut at the end of the century as a largely autonomous territory for First Peoples. Still, the International Labor Office’s Convention 107, claiming that ‘the right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized,’ and the World Bank’s tribal peoples policy issued in 1982, have mainly been honored in the breach (Bodley 1999). Participating in the active design of constructive tenure processes along lines more faithful to indigenous systems and aspirations, and showing respect to indigenous terminology, remains a challenge.

6. New Frontiers

As social scientists and humanists look beyond simplistic dichotomies like ‘public vs. private’ (or collective vs. individual), or ‘rights and duties,’ they perceive many yet unstudied forms of tenure. These may offer important solutions to work-incentive problems typical of socialism, on the one hand, and maldistribution problems typical of capitalism on the other. Other terms, concepts, and policy frameworks are needed that respect access, stewardship, and sentiments of attachment, and that allow for human population flows between territories.

Shifting attention between micro and macro scale, geographers, archaeologists, and others have sought to connect their work on the ground with findings newly accessible from ‘remote sensing,’ of landforms and land occupation and use, from air and space. Rural land tenure remains better studied than urban and peri-urban, and ground tenure better than water tenure. Border and boundary issues are land tenure issues on a large scale. Problems of land quality and distribution can be addressed not only by altering tenure regimes within nations, but also in allowing people to move between nations or continents more freely. Land tenure is not just about getting in, but also about getting out.

A challenge for social and biological scientists alike is to connect the understandings about territoriality observable from human action on the land, with understandings becoming obtainable through ethology and the electrochemical study of the human brain. Human biology has yet produced few if any conclusive findings about territorial instincts in humans, but enough species exhibit recognizable social and cultural patterning in their territorial relations to make it seem unlikely that human spatial perceptions and attachments result from uniquely human social or cultural processes alone.

Meanwhile, as more languages have become involved in the academic study of land and tenure, the reexamination of the most familiar, but deeply cultural and potentially exotic, concepts and categories—like ‘land,’ ‘property,’ and ‘rights’—has continued.


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