Land titling and poverty reduction in Southeast Asia: realising markets or realising rights?∗

AusAID has supported land titling projects in Southeast Asia with the World Bank for over two decades. These involve the first-time issuance of a land title in cases where the ownership rights of current occupiers are largely assured. Reflecting neoliberal thinking on private property rights and development, the rationale is that titling builds land markets and increases tenure security, investment and access to institutional credit. However, international research indicates that land titling can be neither sufficient or necessary to deliver such benefits and, under some circumstances, can harm poor landholders’ wellbeing. In this respect, attention is paid to political factors in addition to property rights per se which influence their tenure security. It is argued that the value which neoliberalism places on the exclusivity of ownership of land, to enable its efficient use and allocation, can be in conflict with the importance to poor people of secure access and use rights. If AusAID is to fully commit to poverty reduction goals, then there will need to be more attention paid to the social justice dimensions of land distribution in Southeast Asia and elsewhere.     

Chiefdoms and the emergence of private property in land

A prevailing characteristic of complex, stratified societies is unequal access to critical resources, and in most cases land is the most fundamental of those resources. Gaining an understanding how relations to land are transformed is viewed as integral to revealing the origins of social inequality. Recent scholarship has proposed an evolution of property rights in land from open access to private property, the latter condition having been attributed to nation states. However, some scholars have concluded from their examinations of Early Medieval Irish texts that land within Irish chiefdoms was regarded as a commodity. The analysis carried out in this paper reveals that in Early Medieval Ireland some land could be considered to be private property, but the holding and transfer of land was restricted to chieftains and their dependents, the lands of commoners being held communally. The closest counterpart to this mode of land ownership is the form of feudalism proposed for the Classic and Post-Classic Maya.     

Land Reform in the Time of Neoliberalism: A Many‐Splendored Thing

Abstract: Over the past 20 years, land reform – defined here as the redistribution of land from large to small properties – has emerged as an important political issue in the Global South. Actors with widely differing ideological perspectives have claimed land reform as central to their political, social and economic platforms. In this paper, I compare reforms championed under the neoliberal auspices of the World Bank (the so‐called Market Led Agrarian Reforms) with those supported by popular grassroots actors such as the Movement of Landless Workers (the MST) in Brazil. I argue that although these two approaches to land reform are often considered antithetical to one another, they share a common theoretical foundation. Both are rooted in a labor theory of property that attributes the fruits of one's labor to the laborer. Where the two differ is in their interpretation of the “original sin” through which land and labor came to be misaligned: neoliberal actors see the state as the key source of land‐related inefficiency while popular grassroots actors identify the market as the key source. I analyze case material from northeastern Brazil and suggest that the institutionalization of the labor theory of property (across civil society, state and market in the region) has generated insecurities for new land reform beneficiaries who must protect their property rights with visible evidence of their productivity.     

Property,rights ans community in a South African land‐claim case (Respond to this article at http://www.therai.org.uk/at/debate)

In the context of South Africa's land reform programme, the concepts of ‘property’ and ‘rights’ carry a heavy ideological baggage. This is evident in the country's land reform policies, which have sought to reach a compromise between differing and often contradictory histories involving both rights and property. A shift in government policy, from treating land reform as a question of rights to a question of the transfer of land, has been accompanied by a reification of the idea of community. The result is a policy that is seriously out of touch with the complex legacy of dispossession that the land reform programme was meant to address. As shown by the case presented in this article, these problems become exacerbated when the land in question is part of a conservation area.     

Planning Innovations in Land Management and Governance in Fragmented Rural Areas: Two Examples from Galicia (Spain)

Land fragmentation can be an important drawback for the development of rural areas. Due to the small size of the units, land management and planning are difficult from both the private and the public point of view. In some regions of Europe, land fragmentation can lead to the collapse of land-based activities such as agriculture and forestry. This process triggers land abandonment, which causes social, economic and environmental problems. Traditional interventions such as land consolidation have not worked because of the scale of land fragmentation, which leads to huge transaction costs. New planning instruments and governance structures for land management that balance the relations between property rights, management and labour force can be developed, in order to avoid the problems of land fragmentation. In this paper, we present two innovative examples of land management and governance structures for dealing with land fragmentation in rural areas of Galicia northwestern Spain. They were able to combine the use of individual and common property rights to make land use more sustainable, instead of trying to change land ownership. The new governance structures helped to increase efficiency and sustainability of the land use by, for example, increasing labour productivity, clarifying property rights and diminishing land abandonment.     

The Struggle for La Sierra: Sovereignty,property, and rights in the San Luis Valley

In 2002 the Colorado Supreme Court reversed decades of precedent in Lobato v. Taylor by awarding Hispano heirs to the Mexican-era Sangre de Cristo Land Grant renewed access rights to that grant's former communal land for grazing, timber, and firewood. Placing Lobato in historical context, this paper examines the contingent emergence of sovereignty and private property in the San Luis Valley of Southern Colorado through acts of violence, land loss, and dispossession. The paper argues that sovereignty and property, as forms of boundary drawing, are unfinished and contested projects rather than abstract, achieved universals. U.S. sovereignty in the San Luis Valley has emerged contingently through the iteration of private property, as struggles over resource access have produced sovereign effects. Such a perspective makes visible how Lobato has reiterated private property rights and U.S. sovereignty in ways that create new exclusions, even as the case returns access rights to the commons.     

A Property Rights Analysis of Urban Planning in Spain and UK

This study compares urban planning and land management in Spain and the UK. Its purpose is to identify key differences in the legal bases for these activities in the two countries and to comment on the way in which the institutions that deliver them allocate property rights between the state and private organizations and individuals. In particular, we analyse the respective approaches to allocating rights to compensation and betterment value associated with land development, commenting on the efficiency and equity of each system and, in Coasian tradition, the influence the assignment of property rights has on municipal government behaviour.     

PERSPECTIVES ON THE SAGEBRUSH REBELLION

The Sagebrush Rebellion began in the late 1970s with the objective of transferring various categories of federally owned lands to the states. The movement was centered in western “public lands” states, where nearly half the total land area is in federal ownership. Within a relatively short period of time this objective was changed to one of “privatizing” federal lands, of selling these land into private ownership. While the Sagebrush Rebellion has been highly political in its activities, the movement can be viewed in the perspective of historical land disposition policies in the U.S. These policies were changed near the turn of the century from alienating public lands into private ownership to their retention and management by the federal government. Confusion over the economics of building a free enterprise system based on private property rights, and the costs associated with building such as system, appear to have been major factors in changing land policies. Two important aras in which this occurred were the Homestead Act of 1862 and timber. The provisions of the Homestead Act imposed heavy costs on settlers, and these costs caused a reaction against the economic system that was being built.     

1978年以来我国农地产权制度变迁及启示

改革开放以来,我国农地产权制度改革大致上经历了四个阶段。从改革过程看,经过了从强制性变迁到诱致性变迁的过程,遵循了生产关系一定要适应生产力发展的规律,增强了农民对土地的稳定感和权属感,尊重了广大农民的自由选择,进一步协调了效率与公平的关系。展望未来,农地产权制度改革的方向应是完善农地承包权流转制度。     

Place in legal geography: Agency and application in agriculture research

Systemic failure of our land management, legal, and regulatory institutions is revealed by the serious and adverse social and environmental impacts of land use practices in private agriculture, evident in severe land and water degradation, precipitous decline in biodiversity, and reduced resilience to natural hazards and climate change. The efficacy of the standard treatment of environmental law and regulation is often hampered by the cultural and legal priority of property rights. We take a different approach, using legal geography to refocus attention on the salience and agency of place and responses to degradation, such as conservation farming and regenerative agriculture, which are reforming dominant land management cultures and institutions from within. By recognising the role of place in leading geographically responsive land use decision-making and more sustainable, resilient, and productive agricultural practices, an alternative model of private land ownership may be possible, as well as greater environmental sustainability. For researchers, our approaches too must be sensitive and responsive to place agency and our methodologies must evolve to acknowledge the agency of place. Place agency in legal geography has great potential for application in reforming suboptimal industrial agricultural practices and legal models of property ownership, and also for revitalising our scholarship.     

农村土地交易的权利配置及利益分享

农村土地交易的现状是令人担忧的,现行物权法为农村土地交易厘清了所有权及其相关权利的关系。但是。农村土地交易仅仅依靠物权法是无法解决的。农村土地交易权利配置与利益分享机制是解决农村土地问题的关键。构建以农地发展权为基础的农地制度,再进行具体的制度安排,是构建我国土地交易利益分享机制的有效途径。     

Ruling by Record: The Meaning of Rights,Rules and Registration in an Andean Comunidad

This contribution looks at land property relations in a peasant community in the central highlands of Peru. Rather than using a rights‐based approach, the authors propose a ‘practice force field approach’ for their analysis of property relations under communal land tenure regimes. Their study combines qualitative ethnographic case studies with quantitative analysis of data on land distribution. In contrast to rights‐based approaches, this perspective understands the legal discourses that people draw upon to explain property relations as ‘justifying rule talk’ rather than the reflection of a system of property rights. It is shown how property relations are shaped in mediated interactive processes, where official rules, moral principles, shared histories and strategic games come together. The authors use this practice force field approach to study Usibamba, an Andean community that has developed a true disciplinary regime of communal governance based on control over land. The role of ‘rule talk’ and the function of elaborate local systems of land registration are examined in the context of the annual reallocation of communal land. Particular attention is paid to the performance of the president of the comunidad during this delicate process and his reflections on the course of events.     

The Advantages of Ambiguity? Development,Rule Formation and Property Rights During Transition in China

Legally protected individual private property rights and a constrained state are doctrines of neoclassical economics-derived development theory. But what about China? It lacks strong rule of law, property rights can be collective, contested and ambiguous, and the state is relatively unconstrained and maintains a central role in the economy; yet it has seen impressive economic growth to take it to the world’s second largest economy. I argue that in the absence of legal/rational protections of individual property rights, political and social networks can provide alternative methods of property protection, allowing for economic development – with political protection substituting for legal. The novel claim I make is that ambiguity of property rights can provide opportunities and spaces for development and innovation, with the building of meaning and institutions found in a transitional state, where rules are unclear and contested, and where formal rules can “catch up” if apparent success can be demonstrated.     

Modernizing Insecurity: The Land Titling Project in Honduras

The Honduran land titling project (the Proyecto de Titulación de Tierra para los Pequeños Productores), initiated in 1982, was intended to enhance security in land rights, to facilitate credit and to improve agricultural productivity. This study explores how the project has operated in one village, and concludes that it has attained none of its objectives; instead, it has triggered new sources of land conflicts, thus adding to the existing complex of local rules and laws. The authors argue that the failure of the project is not solely a consequence of the organizational incapacity of the bureaucracy, as some evaluations suggest, but that it is rooted in mistaken assumptions about the social organization of property rights and the causes of insecurity. The land titling project is founded on a contradiction: although based on the ideology of the capitalizing family farm in the context of a withdrawing state, its implementation actually requires strong and repressive state intervention. Rather than reducing insecurity in property rights, the project has merely ‘modernized’ the sources which can be used to contest rights in land.     

The Purposes of Land Settlement in the Anglo-Egyptian Sudan, 1898–1914: Drawing Paths through the Weeds

This article examines the programme of land surveying and registration that was undertaken by the British-led administration of the Anglo-Egyptian Sudan in the period 1898–1914. The Legal Secretary, Edgar Bonham Carter, stated that programme was the most important project of his division in this period. Scholars have shown that the programme, known as land ‘settlement’, was used to build alliances with elites and to clarify title for European investors in the new irrigation scheme at Gezira. This article argues that, as such, the ambitions of land settlement were relatively limited. In many other colonies, and in Britain itself, politicians and administrators across the political spectrum saw the reform of private property in land as the key for addressing structural problems in agricultural labour. One might have thought that, the Sudan, land settlement might have provided a means of addressing the dependence on slave labour in agriculture. The article demonstrates that, except for a small number of administrators (including Bonham Carter), this was not the case. The general indifference to slavery itself carried through to an indifference to the transformative potential of land law. The article examines the proposals of this minority of administrators, and contrasts their views with the majority’s focus on land settlement as demonstration and opportunity to enhance state power.     

John Locke on Native Right,Colonial Possession,and the Concept of Vacuum domicilium

The early paragraphs of John Locke’s Second Treatise of Government (1690) describe a poetic idyll of property acquisition widely supposed by contemporary theorists and historians to have cast the template for imperial possessions in the New World. This reading ignores the surprises lurking in Locke’s later chapters on conquest, usurpation, and tyranny, where he affirms that native rights to lands and possessions survive to succeeding generations. Locke warned his readers that this “will seem a strange doctrine, it being quite contrary to the practice of the world.” His doctrine of native right is equally strange to recent scholars who see in Lockean theory the ideological prototype for England’s colonial expropriation in the “vacant lands” of North America. This interpretation, dignified by the elusive principle of vacuum domicilium, is considerably weakened when Locke’s arguments are placed in the historical context of the sixteenth and early seventeenth-century English colonial experience. Locke’s Second Treatise, with its literary flourish of a vast and idyllic state of nature, was written in the full appreciation of Amerindian agriculture, its established populations, the acknowledgement of native property rights, and the policy and practice of purchasing land from the native inhabitants.     

Pastoralism and Land‐Tenure Change in Kenya: The Failure of Customary Institutions

Until recently, the Pokot in the highlands of the Baringo area in Kenya have practised semi‐nomadic pastoralism. Today they are rapidly sedentarizing and in many areas suitable for farming, they are adopting rain‐fed agriculture. As a result of these dynamics, claims to individual property on de facto communal rangelands have arisen, and to such an extent that they seriously threaten the peace of the community. This article explores the conflicts that emerge in the transition from common property to private tenure. Using locally prominent land disputes as exemplary cases, it focuses on the role of traditional gerontocratic authorities in the attempt to resolve a growing number of land disputes; on the emerging power of patrilineal clans and local elites in the enforcement of access to land; and on the incompetence of government agencies to intervene. The failure of customary institutions to ensure land tenure security leads to a situation in which women and marginalized actors in particular are threatened with displacement, and in which most local actors want the state to intervene and establish formal property rights.     

Sub‐surface Property,Free‐entry Mineral Staking and Settler Colonialism in Canada

This article examines mineral rights and claim staking in northern Canada, with a focus on settler colonialism and how liberal understandings of property are embedded in the legal geography of the right to explore for minerals. The history of these legal systems is explained through the “free‐entry” principle understood as the right to stake a mineral claim without consulting with private landholders or Indigenous peoples. Free‐entry debate highlights how ideologies of property are assumed neutral through staking regulations. Based on an analysis of interviews with key informants involved in mining regulation, I analyze the geographic stratification of land into two categories, above and below the surface, as an avenue to understand how dominant ideologies of property reveal a critical site of contestation.     

Intertextual relations: The geopolitics of land rights in Thailand

This paper explores the geopolitics surrounding the “modernization” of the formal property rights regime in land in Thailand (formerly Siam) from the mid 1850s to the late 1930s. The paper argues that this weak, peripheral state, in pursuit of international recognition of territorial and jurisdictional sovereignty, employed a strategy of “counter-spatialization” in order to mitigate or deny claims for control over natural resources and population groups by imperial powers. The intertextual dimensions of this “spatial” mode of resistance are elucidated through a close reading of the ways in which diplomatic negotiations of a series of unequal treaties, beginning with the Anglo-Siamese treaty of 1855, shaped—and were shaped by—the formulation and implementation of regulations governing formal property rights in land in Siam. The political economy of land rights at the large scale (local implementation of land titling) and the medium scale (enactment of national land laws) was nested within a process of geopolitical contestation over land rights at the small scale (international recognition of Siamese territorial sovereignty).     

Impact of property rights and ownership on the development of Warsaw’s contemporary city centre

The paper raises the problem of the impact of unregulated property and ownership rights on the development of the city centre. It applies to Warsaw as a post-socialist city that has recorded fast economic growth since the country’s communist regime collapsed in 1989. We follow the course of changes in the city centre of Warsaw, in particular, those pertaining to land use and high-rise buildings for office use as investments that encounter difficulties under the unregulated status of construction sites and lack of clear regulations for private property restitution that was nationalized under socialism. To describe and explain the difficulties, we provide data showing the location of large companies and office buildings, and examples of conflicts as well. Unregulated ownership issues and property rights weigh on Warsaw’s city centre, now vastly dispersing and gravitating westwards, and prevent the district from rational and effective development.