Julia Eckert, Georg Elwert (1996):
Land Tenure in Uzbekistan

1.4 Property rights in the "Adat", the customary law

The Adat knows individual property of land. In pre-soviet Central Asia forms of land tenure varied regionally. Generally they corresponded with the Sharia but included variances according to local law (Adat). The Khan or the Emir was, by his own law, the owner of all land. [FN 16] He directly controlled all unirrigated and uncultivated land like mountains, deserts and steppes. He also took charge over land to which there were no direct heirs. Thirdly he owned land used for his own needs. State owned land was called Ämlak. Uncultivated and unirrigated land under the control of the Emir was used communally. Everybody could become its proprietor when he started to irrigate and cultivate the land continuously. Such privately possessed land was called "mulk".

Three forms of "mulk" dominated in the whole region. There was land free of tax, land on which a tenth of the harvest had to be paid as tax, and land on which a seventh or half of the harvest had to be paid as tax. The tax was paid to the local "bek".

Mulk could be sold and bequeathed although principally it belonged to the Emir. Generally the Emir had to agree to the transaction, but communal land which had been privatised through use could be transferred without the consent of the Emir.

According to some Aksakals land was distributed to all sons. [FN 17] Therefore, plots decreased in size; great landowners were unusual. All those which had extensive property of land had emigrated during the revolution. [FN 18] The Aksakals also reported that the land owned by religious and charitable institutions, the "waqf" had actually been a way to avoid tax payments. Rich landowners donated land to religious institutions or built mosques on it. Thus they were exempt from taxes. They would keep the right to use the land and to bequeath it, though. [FN 19]

Today the concept of the community having rights on land seems to prevail. Certain goods seem to be "property" of the community. [FN 20] Community property means that the community has a right of pre-emption and that strangers/foreigners/outsiders are excluded from access. The family houses as well as the kolkhoz land as a whole have a quality of being, in the end, community property. This does not entail that the whole community has the right to use e.g. the land, but rather that only a member of the community can possess it; only a member of the community can be the owner of the land. The customary law, the "Adat" in this way introduces a right of preemption, which is observed. [FN 21] First the family and relatives of a deceased have the right of preemption, then the Mahalla, and only then "strangers" can bid.

Strangers are expected to integrate so that the land returns to the community. Strangers are integrated if their commitment to the community is unchallenged. For example townspeople moving to the village were welcome if they took up a full farming life. [FN 22] As well, women from other Soviet republics were respected if they "lived like an Uzbek woman." [FN 23] Townspeople, though, who went on living in the city, kept their jobs in the city and only leased land to support their city-income were seen as illegitimate proprietors. [FN 24]

In the case of virgin land or land previously belonging to the kolkhoz or sovkhoz the community which worked the land or which neighbours on to it has the right of preemption. The right of preemption was observed more strictly in areas which had experienced few changes in the structure of their population. Close to towns and cities it gained in significance though, and became a matter of policy for the administration. Kolkhozes sometimes adjusted their rules of eligibility to the Adat and reserved land for kokhoz members, (see below chapter II.) If they did not, it was criticised.

However, demands foregoing the Soviet distribution of land are still existent. Moreover, the legitimacy of Soviet induced land rights are contested. This concerns most areas where people have been settled or where borders have brought about new administrative units and new economic routes as well as areas where Soviet agricultural policy has induced major changes in the social structure. Disputes between communities about the right of ownership have been the cause of the most violent clashes Uzbekistan has witnessed.

This highlights the importance of
a> the current reform finding resonance in the concepts of legitimacy of the population; and
b> of establishing institutions of conflict resolution parallel to the distribution of land.