Imagine a man walking about in the countryside, pointing his finger at random pieces of land, saying: “This is mine”, “These are mine” and “Those are mine, too”. Would you believe him if you knew the true owner of those grounds first-hand? – Of course, you wouldn’t, and that is a good thing! Claims to land must meet certain requirements in order to qualify for recognition. They need to be effective, public and legitimate. Lest you be looking for sincere trouble, you cannot ignore any one of these requisites for your own convenience. In the debate on land grabbing, however, legitimate claims to land are often glossed over for the reasoner’s convenience through a gratuitous reference to formal law. This is due to a narrow and biased conception of property rights in land – and has some severe consequences in the real world.
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Back to the man walking about in the countryside: Such must have been the picture Jean-Jacques Rousseau, the famous eighteenth-century Frenchman, had in mind when he wrote:
- “The first person who, having fenced off a plot of ground, took it into his head to say this is mine and found people simple enough to believe him, was the true founder of civil society.”
Now, whatever Rousseau’s meaning of the term “civil society” – which is not our topic here, though it has some relevance – what we have here is first of all a set of requirements that need to be fulfilled in order for an action to constitute property.
Firstly, there must be an act of seizure. Fencing off a plot of ground is the material precondition for making it one’s own. This is not difficult to understand since it matches our commonsensical notion of property as “all the things I possess”.
Secondly, a signal is needed, or what is sometimes referred to as a “clear act”: You have to say “Something is mine” in order to make it thine. This tells us that the act of seizure should be accomplished publicly in order to qualify for the creation of property.
Publicity is, then, a precondition for the third requirement: the belief on the part of others. In the case above the “believers” are simply the people simple enough to believe. This need not be so. As we will see in a second, today there are very clever people in all kinds of professions who specialize in maintaining, enforcing and reinforcing this belief.
What is important first, however, is that in order for an act to constitute property a certain reaction by others, let’s call them “participants” or “stakeholders”, is necessary. In brief: property is a claim to be recognized, a social relation!
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What we observed in the example above was the claimant’s original appropriation. Today, preconditions have changed. Such a simplistic notion of property cannot capture contemporary real-world dynamics. The act of seizure, nowadays, would probably be an agreement between a land owner and a land purchaser since there is hardly any land left which has not been subjected to original appropriation. But this is not the crucial change, and neither is the next: Because whether we tell our neighbours “This is mine” or whether we have the same claim registered in a public register by a public official – this does not change the essence of the act: its being a public act.
The crucial change, nowadays, is that the mere belief by others does not suffice to constitute property. We want law! Instinctively. We want – as the World Bank puts it – “secure tenure.” Our belief has been formalized, and with it the nature of property. Writes Crawford B. Macpherson, Canadian political scientist:
- “What distinguishes property from mere momentary possession is that property is a claim that will be enforced.”
Who enforces property? It is, says Macpherson, either “society or the state, by custom or convention or law.” Thus, enforcement presupposes a form of domination over the individual, which German sociologist Max Weber defines as “the probability that a command with a given specific content will be obeyed by a given group of persons.” Obedience presupposes that there is “belief in legitimacy.”
This is precisely the belief we encountered in the quote by Rousseau, where it was a naïve belief based perhaps on feelings of reverence. According to Weber, there are three pure types of legitimate domination, the validity of which may be based on (1) rational, (2) traditional or (3) charismatic grounds. When it is rationally convenient for the individual to accept domination, there is belief of the first type. When something is thought to be right because it has always been that way, then we have belief of the second type. And finally, when the qualities of a person are such as to induce belief and trust in others, this is charismatic legitimacy.
The man depicted by Rousseau may have based his claim on traditional or charismatic grounds. Maybe he has always been the one going about saying “This is mine”. Maybe he is so eloquent that no one dares to speak up against him.
Be that as it may, a person registering property in a modern administrative state today bases her claim entirely on rational grounds, i.e. she relies on laws, procedures and on the information contained in the public land register. We have a regime of formalized ownership. In Germany, e.g., according to the European Private Law Forum, more than 95 per cent of all land is registered.
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One consequence of the formalized setting is that claimants who base their claims on other than rational-legal grounds will have a hard time making themselves heard. This feature of the system is best described as its legalistic bias, its being deaf to claims based on custom and tradition, but not formalized. This is problematic when we consider that, according to data from the International Land Coalition (ILC), in sub-Saharan Africa, where a good deal of all land grabbing occurs, no more than 10 per cent of all rural lands are subject to statutory entitlements.
In Weber’s words, the passage from conventionality (see Macpherson’s quote) to lawfulness occurs where there is “a staff with the specialized function of maintaining enforcement of the order, such as judges, prosecuting attorneys, administrative officials, or sheriffs.” These are the professions specializing in the rational-legal belief in legitimacy mentioned above. Given the existence and effectiveness of these classes, we need to add that not only is the formalized regime of property biased towards legal land titles, but what is more: the concept of formalized property in land comes with a whole social order to enforce it.
It is worthy of note, in this respect, that this particular property regime is but a contingent arrangement, which has materialized in a precise geographical, social, cultural and historical setting, and is not an order carved in stone, even though it may appear to be a “casing as hard as steel” sometimes.
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Large-scale land acquisitions that require formalized land contracts in order to suit the accounting and controlling habits of big corporations involve an imposition of both titling schemes, which – as even World Bank experts admit – in many cases are bound to fail, and a social fabric, which might not suit the particular place and setting it is forced upon.
Governments of target countries may be deaf to customary claims to legitimacy, discarding them as “anti-modern”, especially when they are coerced by large-scale land acquirers (often corporations backed by the governments of other, more powerful countries) into compliance with the formalized regime of land tenure. This is relevant when we consider that enforcement either directly involves, or meditates the possibility of, the use of force. Where there is no belief in legitimacy on the part of the individuals involved, i.e., the “stakeholders”, obedience must be established through the use of force. Advocates of formalized land tenure must acknowledge that they tacitly accept such practices when they insist on the establishment of formalized land regimes in places where their own normative convictions concerning the legitimacy of land tenure do not apply.
This being said, I have not even touched upon the broader question of social, ritual, affective and political meanings associated with land, which render even more utopian the idea that the multiple rights claimable under customary law can be brought to the adjudication register. However, I believe that this simple and cursory overview of the complexities of land tenure has provided us with some very cogent reasons why a purely neoclassical analysis of the phenomenon of land grabbing, which posits land rights as socially and culturally neutral, must appear so provocatively inadequate. Property is a relation between people, sociology has things to say about this relation, and land grabbing cannot be fully understood if we fail to see its non-economic implications.
More by the author on: www.ssrn.com/author=2016169
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