|
     
   
2.3 Property Regimes in Land –
A Socioeconomic Analysis
2.3.1 Property Regimes: An Overview
A wide variety
of land tenure systems can be found in developing and
transforming countries. Fundamental
elements have continued to develop autochthonous systems on an evolutionary basis; others
were introduced by colonial administrations, and these were often disposed of and replaced
by the independent national states. Others still were cast out by socialist revolutions
and reintroduced in part in recent years after the collapse of socialist systems.
Therefore, parallels and overlapping of the different spheres constitute the existing
systems of land tenure. |
Common
structures in various land tenure systems |
The following
four idealistic property rights systems in land can be distinguished from one another:
A socioeconomic analysis highlighting the strengths and weaknesses of
the various land tenure systems can be found in the following summarization of the key
ideas and their institutional foundations. In addition, the efficiency of the systems
under various conditions and their limitations are presented (Baland & Platteau 1995, Bromley
& Cernea 1989, Hardin 1968, Kirk 1998a, Ostrom 1992). |
Four
idealistic systems of land tenure |
Institutions
"[...] are the humanly devised constraints that structure political, economic, and
social interactions. They consist of both informal constraints (sanctions, taboos,
customs, traditions and codes of conduct) and formal rules (conventions, laws, property
rights)." (North 1991). A strict division
between institutions and organizations is often hardly possible as organizations are
created to operationalize institutions in specific situations, for example, through
businesses, households, land registries or departments for land development. |
Land tenure
institutions |
| Private property |
| Key ideas and
principles |
Benefits and
problems |
Private property in case of clearly defined ownership rights and user
rights guarantees the owner the yield of his investment exclusively,
however, it also assigns him
responsibilities (encumbrances, servitudes), imposes duties and liabilities when the
responsibilities are disregarded (compensation, default).
The Document of Title
gives the owner the right to use the land
within the limits of the law (land use plans, environmental protection restrictions),
to exclude others from resulting
revenues,
to sell, to bequeath, to give away or to
lease,
to pass secondary rights (e.g. hunting or gathering) on to third parties or to
mortgage the land.
Private property
probably does not exist anywhere in its pure form including in northern countries as
ecological restrictions, social responsibility or land taxes must be considered.
Very different agrarian structures have
developed based on private property.
- Family farms exist in egalitarian structures like in areas with market oriented agrarian
reforms (Kenya, Taiwan, and South Korea),
- or in very inegalitarian structures such as in Latin America. haciendas, commercial middle-sized farms and marginal existences coexist
on the basis of private property of land (Wachter 1996).
In addition, individual private property does not necessarily mean self-cultivation as
especially in Asia and Europe the majority of the land is used by tenants. |
- Since the private land owner receives all of the revenues
due from his investment, the saying that he can turn "sand into gold" has a
sound basis. The prerequisites are, however, having a sufficient farm size, having total freedom to make decisions on land use patterns, a
positive attitude towards work, a high regard for savings and investments and external
support (access to new technologies, credit, marketing and supply organizations, etc. The
ability to pass on or sell the land can then be very motivating to maintain the value of
the land by farming sustainably.
- However, private property is not a necessary condition for
an economically successful and sustainable use of land. For example, one of the prototypes
of a productive modern farmer is the German "domain tenant", who leases the land
for 12 to 20 years from the state.
- Private land property loses its productive function if it is
used as an object for speculation when land is not liable for taxation or if it is used
primarily to secure one’s assets.
- Private property requires
differentiated functional markets for goods and land, labor and capital markets in order
to develop. It necessitates a large number of "external" institutions and basic
rights for further support like a highly efficient land
registry, contract law, inheritance law, family law, tax law.
- Owners can be bound to a social and increasingly ecological
sustainable land use by the law.
- The government is free to introduce maximum (ceilings) and minimum sizes (floors)
which regulate transfers of private property in the case of sale or inheritance, for
example. It can also prohibit the sale of land to foreigners, it can prohibit mortgage of
the land, and it can introduce preemption rights.
|
| State property |
| Key ideas and
principles |
Benefits and
problems |
If land becomes state
property, it is usually to enable the government to
implement its ideas on its functions with respect to distributional and social objectives
or allocation efficiency and modernization.
- State property can come about through conquest, formal nationalization of prior crown
lands, purchase, gift, expropriation with or without compensation or by land takeover when
there is no clear title.
- To overcome the colonial inheritance, many states which had become independent
nationalized the land and experimented with direct state influence on the resource
management. Land reforms were attempted especially in the 1960’s and 1970’s.
However, when the socialist economic and social order collapsed, state divestiture was again on the agenda worldwide.
|
- Governments, regional and local authorities or parastatals
claim the ultimate competence for the distribution and use of land resources. Whether the
state actually takes over the management of the land use and its revenues is its own
decision. It often transfers both to individuals or groups and limits itself to the
reservation of title. Governmental land, however, can be leased or used by state-owned
businesses.
- Having total responsibility of resource use has proven to be
very unproductive for most countries since the financial and administrative capacities and
the training requirements of the state are not sufficient. In addition, the states are
hopelessly over-taxed in their attempt to secure appropriate land management. Potentially
discriminated groups could lose the resources required for securing their livelihood by
state mismanagement (e.g. mobile livestock keepers and forest users).
- The direct cultivation of state farms
has rarely been successful due to lack of incentives and capabilities. Paternalistic
governmental restrictions for individually or communally used land often cause damage,
even if they were planned for the modernization of agriculture.
|
| Common (communal)
property |
| Key ideas and
principles |
Benefits and
problems |
Common or communal property
of land provides the following:
- has secured the livelihood of groups of farmers, livestock keepers, hunters and fishers
over centuries;
- allows for the sustainable use of spatially isolated resources and secures the
preservation thereof in the long term through social control and sanctions;
- enforces relatives and residential groups that could not have realized using land
individually as private property to remain together;
- guarantees the old and the sick their entitlement benefits.
Common property is the property of a well-defined and demarcated group that uses the
land communally according to known and mutually accepted rules. Non-members of the group
are often excluded from use or have lesser rights. Therefore, common property should not be confused with open access.
The systems of autochthonous common property must be differentiated from the collective
ownership of land. Autochthonous land ownership
is based on informal institutional arrangements that have evolved up to the time the area
was colonized or it became part of a national state. These systems dominate in Africa, in
indigenous peoples in Latin America and Asia and in nomadic groups of livestock keepers in
northern Africa and the Near East.
The Mexican agrarian reform transferred large landholdings partly into communal land,
called Ejido. Land to be cultivated was granted to the
community members on a heritable basis, while pastures are used
commonly.
The collective ownership of land is the
result of socialistic revolutions and collectivization (previous "peasant
associations" in Ethiopia, Ujamaa villages in Tanzania, etc.). In particular, it is
state ownership with collective land use and division of labor.
In addition, in Israel individual ownership of land
was also eliminated (Kibbutz), however due to other ideological reasons. |
- A socially legitimate authority is given the power within
the group. Its task is to manage the resources as a common trust, to limit their use and
to secure their regeneration for the next generations.
- Conceded individual claims are always only temporary and
cannot be sold outside the group.
- If the endogenous systems of authority and sanctions remain
functional, then the preservation of resources can be secured. The threats to the system
are due to internal and external factors, however (Wachter
1996).
- When the group is opened due to market activities, migration and external land users (city dwellers, new settlers, projects),
then these criteria become diluted stepwise and people become less responsive to
incentives and sanctioning mechanisms.
- The second key problem of the internal organization lies in
the insufficient work and investment incentives for the individual, simply known as a
"free rider situation" or the "prisoners'
dilemma." Finally, the inability to sell the user rights
makes individual access to credit and its business progress more difficult since they
cannot mortgage the land.
- The main problem, however, of communal property lies
undoubtedly in the fact that the control of access for externally interested can only
rarely be held. This is always the case when the independent national state does not
explicitly protect this form of ownership through its legislation and/or becomes involved
in the rules and regulations of the community. Then, the danger that endogenously
sanctioned norms will disintegrate exists, and the transition to unlimited access to
resources is probable by individuals dealing in their own self-interest.
- The adaptation of communal ownership could hardly keep up
with the speed of the processes of change that affected it externally; for example, the
increase in population and the change from subsistence-oriented to market-oriented
production is enforced by economic globalization, by migration and erosion of the
traditional group solidarity.
|
| Systems of open
access |
| Key ideas and
principles |
Benefits and
problems |
| This is not a property
system on its own, but rather is a lack of property. In these cases in which the access to
land is unlimited, land becomes a good which easily can be plundered. Since no one can be
hindered from using the revenues of the resource, hardly any incentives for individual
investments in resource protection exist. |
- Systems having de facto open access to resources and their
disastrous consequences can be found on all continents, including the industrialized
countries if one includes air and water. Surmounting these situations is a particular
challenge for development cooperation.
|
Property
rights systems in land are often based on religion. The spiritually sacred character of
the African communal property was already discussed. The importance of the religiously
founded Islamic land tenure is increasing worldwide. Even if many institutional
regulations can be attributed to the depicted basic property regimes, absolute private property with unlimited tenure rights
is out of range since according to Islamic understanding Allah alone has the right to
absolute ownership of all worldly things and individuals have only limited use of earthly
goods. In practice, a wide variety of graded rights similar to ownership that can also be
bequeathed have evolved. Thus, the Islamic philosophy of property is, for example, more
similar to the African way of thinking than the northern ideal of private property. |
Islamic land
tenure |
| Religious concepts of tenure and
property rights |
As with customary
concepts, Islamic tradition holds that land initially belongs to the person who
"vivifies" it. Also Islamic laws provide for defined rules of inheritance both
for males and females, either as shares or residuaries, as in Pakistan. |
Under Islamic tenure
systems, land is classified into four main categories: mulk (land owned by an
individual with full ownership rights); miri (land owned by the state, which
carries tassruf or use rights which can be sold by the owner or inherited, but over
which the state retains ownership); waqf (land "stopped for God" and
owned by religious foundations); and musha
(land owned collectively, originally under tribal tenure). In urban areas, mulk
land became widespread and facilitated the transfer and sale of land, though in some
cities extensive areas of land remain in waqf ownership, restricting access,
transfer and development. |
| (Payne
1997) |
|
