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.     

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.     

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 Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment

The evolutionary theory of land rights can be considered the dominant framework of analysis used by mainstream economists to assess the land tenure situation in developing countries, and to make predictions about its evolution. A central tenet of this theoryis that under the joint impact of increasing population pressure and market integration, land rights spontaneously evolve towards rising individualization and that this evolutioneventually leads rightsholders to press for the creation of duly formalized private property rights — a demand to which the state will have an incentive to respond. This article looks critically at the relevance of the evolutionary theory of land rights as currently applied to Sub-Saharan Africa. In particular, the question of whether the establishmentof private property rights is an advisable structural reform in the present circumstancesis examined, in the light of evidence accumulated so far. It will be argued that most of the beneficial effects usually ascribed to such a reform are grossly over-estimated and that, given its high cost, it is generally advisable to look for more appropriate solutions that rely on existing informal mechanisms at community level.     

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.     

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.     

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).     

Land as fictitious commodity: the continuing evolution of women's land rights in Uganda

In sub-Saharan Africa, colonial influences have altered traditional practices as a way to manage that which Polanyi labeled as ‘fictitious commodities’ of land, labor, and money. Land has now become a highly marketable commodity and an intrinsic part of the global economy. Over the past century, Uganda's land rights have evolved from communal rights to that of male-dominated, individual ownership practices that have excluded women. Despite constitutional provisions, which confer title of both a deceased husband's property rights and equal rights to property within a marriage to a wife, postcolonial patriarchal tradition prevails. This article examines historical changes in land rights in Uganda and discusses the impact of shifts in land rights from communal ownership to individual tenure, altering power structures and attempting to create marketable land title. The Ugandan women's movement's opposition to policies and implementation of laws that exclude women has been unable to facilitate the required changes in unbiased access to land rights, despite apparent victories in revisions to the letter of the law. Situated within contemporary interpretations of tradition and pressures of market demand, this article shows that women's access to landownership and use are restricted by misinterpretation of traditional law and a lack of enforcement of contemporary legal rights. To illustrate the impact of a lack of access to land, this article examines an empirical case study of widowed subsistence farmers in southern Uganda. Women in Uganda continue to lose ground, quite literally, decreasing the possibility of gender equity in terms of land.     

公地制度中财产权利的公共性

公地制度中,无论土地还是权利,都可以用"common"一词来表示,这说明它们都具有"公共"的性质。公地制度下财产权利的公共性,既表现于公地共同体在对外关系中,集体地拥有和行使财产权利;又表现于共同体成员之间土地财产的混合,以及全体成员行使财产权利方式的集体性。     

Current Literature

A noted specialist on China's urban and economic geography investigates the processes underlying the massive and occasionally wasteful practice of land development that has accompanied China's rapid economic advance. By critically juxtaposing elements of conventional neoliberal economic theory (e.g., the so-called "tragedy of the commons") with the actual exercise of land property rights and the practice of land development in transitional China, he argues that, contrary to Western experience, land property rights have evolved from the bottom up and thus functioned not as a bundle of standardized and uniform legal prerogatives but rather as a diverse set of local practices adaptable to regional conditions. The author illustrates these processes though a thorough review of Chinese laws and regulations as well as a case study of land development in a province (Guangdong) in which land development has been allowed to proceed more rapidly under a special economic regime and exposure to global forces. Journal of Economic Literature, Classification Numbers: P260, Q150, R140, R520. 2 figures, 1 table, 95 references.     

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.     

‘Vague Native Rights to Land’: British Imperial Policy on Native Title and Custom in New Zealand, 1837–53

What is often referred to as a common law doctrine of aboriginal or customary title neither underpinned imperial policies towards Māori property rights in the 1830s and 1840s nor was it viewed as a settled or broadly accepted legal doctrine. Rather, critics of imperial policies applying to New Zealand deployed these legal sources in order to challenge and influence the workings of imperial policy on British settlement within New Zealand. The particular emphasis of such policy was on disciplining the extent of such settlement and providing a land fund from crown grants. Imperial policy-makers did not endorse these legal sources despite their use in the decision of the New Zealand Supreme Court in Regina v Symonds (1847). In this context, there was no consensual legal view or approach as to the nature or content of indigenous property rights. Ultimately, in the face of disagreement, diverse views of the nature and extent of Māori property rights persisted. The perceived non-justiciability of such rights meant that political spaces rather than the courts were of ongoing significance to characterising and debating such rights.     

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.     

Environmental Action,Gender Equity and Women's Participation

For poor households, and especially for the women who own little private land, forests and village commons have always been critical sources of basic necessities in rural India. However, the availability of these resources has been declining rapidly, due both to degradation and to shifts in property rights away from community control and management to State and individual control and management. More recently, though, we are seeing small but notable reversals in these processes toward a re-establishment of greater community control over forests and village commons. Numerous forest management groups have emerged, initiated variously by the State, by village communities, or by non-governmental organizations. However, unlike the old systems of communal property management which recognized the usufruct rights of all villagers, the new ones represent a more formalized system of rights based on membership. In other words, under the new initiatives, membership is replacing citizenship as the defining criterion for establishing rights in the commons. This raises critical questions about participation and equity, especially gender equity. Are the benefits and costs of the emergent institutional arrangements being shared equally by women and men? Or are they creating a system of property rights in communal land which, like existing rights in privatized land, are strongly male centred? What is women's participation in these initiatives? What constrains or facilitates their participation and exercise of agency? This article provides pointers. It also demonstrates the relevance of the feminist environmentalist perspective, as opposed to the ecofeminist perspective, in understanding gendered responses to the environmental crisis. 1 Abbreviations used in this article: FPC=Forest Protection Committee (under JFM); JFM=Joint Forest Management; NGO=Non-Governmental Organization; VCs=Village Commons; VP=Van Panchayat (forest council).
     

Rubber Erasures,Rubber Producing Rights: Making Racialized Territories in West Kalimantan,Indonesia

This article makes connections between often‐disparate literatures on property, violence and identity, using the politics of rubber growing in West Kalimantan, Indonesia, as an example. It shows how rubber production gave rise to territorialities associated with and productive of ethnic identities, depending on both the political economies and cultural politics at play in different moments. What it meant to be Chinese and Dayak in colonial and post‐colonial Indonesia, as well as how categories of subjects and citizens were configured in the two respective periods, differentially affected both the formal property rights and the means of access to rubber and land in different parts of West Kalimantan. However, incremental changes in shifting rubber production practices were not the only means of producing territory and ethnicity. The author argues that violence ultimately played a more significant role in erasing prior identity‐based claims and establishing the controls of new actors over trees and land and their claims to legitimate access or ‘rightfulness’. Changing rubber production practices and reconfigurations of racialized territories and identity‐based property rights are all implicated in hiding the violence.     

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.     

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.     

近代山东村落社区结构的整合与分化

在近代山东农村,村落社区成员对土地、资金、村公产等物质资源和宗教、教育、村庄自卫等人资源的分配,必须通过各种社会组织才能得以进行,其中宗族组织起了统合血缘地缘关系及情感流向的关键作用。在村落社区以宗族组织为中心的社会结构整合过程中,会出现基于地权分配不均衡而产生的社会分化,这必然导致经济社会地位相近的村落成员组成某些特殊的社会组织,从而使村落社区结构在统合性中又产生一定的分异性。