Lecture on Property Rights

Property determines exclusive rights to things. The core of property is the right to exclude
(North 1981). As considered by cultural anthropologists property exists in all human societies,
restricting rights of use, allocation, and/or transfer (Herskovits1940; Hoebel 1954; Hunt 1997,
1998), but because economies are instituted differently in each historical case, the only pan-
cultural concept of property might be equivalent to "Keep your cotton pickin' hands off my
[whatever]" (Neale 1998).

A common definition of property is twofold: something possessed, and the exclusive right to
hold, use, and/or dispose of that something.

1. Theories of Property (Earle, 2000)

Evolutionary studies of property can explain variations in how rights to things are patterned.
Classical and neoclassical economic theories, ecological theories, and political economy
theories have been proposed by social scientists who predict specific reasons why property
rules developed and influenced social evolution.

Classical and neoclassical economic theory predicts specific evolutionary changes in

property rights through history (Hunt 1997). From Adam Smith's original formulation, the
gains in the wealth of nations that characterized the emerging economic power of northern
Europe are thought to derive from increasing efficiencies of specialization and exchange. In
the liberal paradigm, the creation and maintenance of private property ( as opposed to public
property) rights was promulgated as necessary. For individuals to invest in land or other
enterprises, rights to future returns had to be guaranteed. Nineteenth-and twentieth-century
economists argue that a lack of private property in traditional societies caused economic
underdevelopment; individuals simply would not work hard unless their added work produced
personal benefits. The certainty of property rights should determine rates of saving and capital
formation (North 1981), such that the Neolithic revolution may reflect an increased labor
productivity in agriculture linked to new rights in property (North & Thomas 1977:232). As

1
population grew and local production levels necessarily expanded, communal property would
have made local investment in agriculture, with delayed returns, attractive in comparison to
exploiting the diminishing returns of wild foods (Earle 1980a).

Ecological anthropology theories develop a similar argument that competition and warfare
require group leaders, tribal sodalities, or chiefdoms to guarantee rights of resource use
(Johnson & Earle 1987, Sahlins 1968). Population growth and increased competition create a
need to regularize access to resources (Feil 1987, Johnson& Earle 1987). Carneiro's (1970)
circumscription theory sees population growth as causing warfare and circumscribing
individual options. Groups were tethered to specific localities, and an expanding state could
thus control them.

Private property may develop with intensification of farming and the stable association of
particular plots with individual families (Collier 1975, Netting 1993). Using Human Relations
Area Files, Adler (1996) shows that cross-culturally multi-household ownership associates
with moderate levels of agricultural intensification. Unstable ecologies, unable to be
intensified, may require territorial" collective" control by groups formed along ethnic
divisions (Stone & Downum 1999). Property can be seen as a cultural manifestation of
territoriality that develops to defend and regularize rights to scarce and valued resources.
Resource distribution (predictable/unpredictable, dense/scarce) and its economic defensibility
(high/low) may explain variation in territorial defense, possible control, and the land-tenure
regimes (Dyson-Hudson & Smith 1978).

Political economy theories focus on the significance of property in the evolution of social
stratification and complex political institutions such as chiefdoms and states. In the political
economy literature, property has central and pivotal roles. The seminal work of Morgan
(1877) and Engels (1972 [1884]) argues that ownership of capital allows the alienation of
products from those who invested labor in their making; conversely, dealienation requires the
establishment of a communist order to establish public ownership by all. Based on historical
and archaeological evidence, complex societies rested on the development of property rights
well before capitalism. Tributary economies of both chiefdoms and precapitalist states require
alienation of value to finance stratification and institutional elaboration (Wolf 1982). The
emergence of the state was an outcome of social stratification in which the ruling institutions
defended differential access to or ownership of strategic resources by military means (Fried
1967). A long-term, worldwide trend toward intensification can be seen as creating a

2
productive base that is more easily controlled by ownership of the most productive land. This
land has been developed with technological facilities that become owned by ruling institutions
(Johnson & Earle 1987).

2. PR and Well Being (Widerquist and McCall, 2017)

Life in most observed stateless societies is extremely difficult. Yet, at least some people today
are worse off because they bear most of the capitalist state’s disadvantages and share few of
its advantages.

Does it matter?

It mattered to Thomas Paine (2000), who wrote “[T]he first principle of civilization ought to
have been, and ought still to be, that the condition of every person born into the world, after a
state of civilization commences, ought not to be worse than if he had been born before that
period.” It also mattered to Robert Nozick, who—building on the work of John Locke
(1960)—coined the phrase, “the Lockean proviso1,” and defined his “weak” version of it
almost identically to Paine’s first principle of civilization. Nozick (1974: 178-179n*) wrote,
“[because] the process of civilization had deprived the members of society of certain liberties
(to gather, pasture, engage in the chase) … compensation would be due those persons, if any,
for whom the process of civilization was a net loss.”

By the process of “civilization,” Paine and Nozick meant primarily the establishment, spread,
and maintenance of these two institutions. Paine used essentially what we define below as a
“contractarian” approach to the justification of the state and Nozick used what we define
below as a “propertarian” approach to the justification of the private property system. These
two approaches are very different, but as David Gauthier (1986: 205, 208) defines it, “the
Lockean proviso” is an essential premise in both. Paine and Nozick disagreed about whether
the proviso was fulfilled, but they agreed that this proviso matters and that, if it is unfulfilled,
the people who benefit from these institutions owe compensation to anyone they harm.

The Lockean proviso is a mutual advantage principle, and it is undeniably important to

contemporary political thought. Rex Martin (1998: 150) writes: [W]e can point to a single,

1
(clause restrictive ou condition); The Lockean proviso is a feature of John Locke's labour theory of property
which states that, whilst individuals have a right to homestead private property from nature by working on it,
they can do so only "...at least where there is enough, and as good, left in common for others".

3
common, underlying idea of economic justice … which can be found in Locke, in Adam
Smith, in Marx and in much recent contractarian theory … the arrangement of economic
institutions requires, if it is to be just, that all contributors benefit or, at least, that none are to
be left worse off. This principle is so important and so widely used that any ambiguity about
what it is or what it implies is inexcusable.

Yet, for centuries, some of the most influential political philosophers and political theorists
have stated or implied that this principle is fulfilled without unequivocally explaining what
that means. It would seem that anyone using a mutual advantage principle to justify any
existing institution has little choice but to assert that mutual advantage is achieved—as a
matter of empirical fact.

This book shows that although the claim that the weak proviso is fulfilled has been a major
feature of contractarian and propertarian literature since Thomas Hobbes (1962 [1651], p.
100) published Leviathan in 1651, it has so far received very little attention or scrutiny. The
few critics, such as Paine, have been easily ignored. It has even escaped receiving a name, and
so we dub it, “the Hobbesian hypothesis.” Most simply, it is the claim that the Lockean
proviso is fulfilled. We define the weak version of the Lockean proviso as: an institution
(such as the state or the property rights system) can justly be imposed on people providing
everyone living under its authority is better off than they could reasonably expect to be in a
society without such authority. The corresponding weak version of the Hobbesian hypothesis
is: everyone is better off or at least as well off under the authority of a sovereign state (and/or
under the authority of the private property system) than they could reasonably expect to be
living in a society outside of any such authority.

The function of the Hobbesian hypothesis is clear and obvious, as Samuel Pufendorf
explained in 1672, “the complaint of the masses about the burdens and drawbacks of civil
states could be met in no better way than by picturing to their eyes the drawbacks of a state of
nature” (Hardin 2003, p. 43). The Hobbesian hypothesis is a reason to silence the complaints
of disadvantaged people, whether those complaints are against the government or powerful
private interests.

This book’s most important points all relate to this claim:

• The Hobbesian hypothesis is an empirical claim.

4
• Despite some ambiguity or equivocation, most contractarian and propertarian theories from
Hobbes and Lock to the present use it as an essential premise.

• It includes claims about the relative welfare of disadvantaged people in state society and of
people in small-scale indigenous stateless societies.

• Contractarians or propertarians have provided little evidence for it.

• It is false.

3. The Emergence and Evolution of PR (from Krier 2009)

“Evolution” is a term with many meanings. It refers, in the most general sense, to a process of
gradual change, and it goes without saying that property rights have, in this sense, evolved.
Primitive rights emerged at some point, and they were followed eventually by developments
that culminated in the full-blown property systems of modern times.

An evolutionary theory of property rights aims to provide a plausible explanation of their

genesis and development, given whatever evidence we might happen to have.

There are at least two very different types of evolutionary accounts that might be used to
explain the emergence of property rights. One type views property as the product of
intentional undertakings: property is “designed.” The other type sees property as an
unintended consequence of individual actions: property arises “spontaneously.”

To account for property in the latter manner is to present an invisible-hand explanation, which
“explains what looks to be the product of someone’s intentional design, as not being brought
about by anyone’s intentions.” This definition does not exclude all intentions but only any
intention to achieve the particular developments in question. Adam Smith long ago
highlighted the distinction in The Wealth of Nations when he spoke of a marketplace where
every individual “intends only his own gain,” yet is “led by an invisible hand to promote an
end which was no part of his intention.”

Lets us explore the distinction between the two types of evolutionary accounts—intentional
design and unintended consequences.

Intentional design.

5
Bits and pieces of Demsetz’s argument can be reasonably taken to suggest that he was
thinking about an evolutionary account based on intentional design. His thesis that property
rights develop in response to changes in costs and benefits seems to refer to a process
whereby some centralized agency sums up social costs and benefits, then chooses the most
efficient property rights arrangement, subject to “a community’s preferences for private
ownership.” The process might be “hit-and-miss” to some degree and involve “legal and
moral experiments,” but “inevitably” there is a purposeful and authoritative designer in the
picture.

Unintended consequences.

Other bits and pieces of Demsetz’s argument point in the direction of an unintended-
consequences (invisible hand) type of account. For example, he thought that changes in
property rights in response to changes in costs and benefits need not be “the result of a
conscious endeavor”; instead, the process could involve “gradual changes in social mores”
that occur without some particular end in mind and entail no central authority. Moreover,
individual practices, rather than collective choices, could be the source of changes in property
rights. Demsetz mentioned an example involving hunters, each of whom marked the territory
he regularly used as his own in order to give notice of his claim—presumably with the
expectation that others would respect it. He discussed another example involving portable
personal items (weapons, pottery, and other utensils) that—because they took time and effort
to produce, were useful, and could be easily protected by keeping them close at hand—were
recognized as private property in primitive societies, simply as a matter of social practice.

Critics: Now we can take a closer look at the two types of evolutionary accounts and see how
they figure in the literature.

Begin with intentional design. As Richard Dawkins has pointed out, a central difficulty with
evolutionary explanations based on design is that they invite “an inevitable regression to the
problem of the origin of the designer.” So how did commoners living in a state of nature with
open access to resources and no government manage, in the first instance, to set up a property
system? This is a crucial question in accounts based on design. Simply asserting that
commoners self-consciously cooperated in the development of property regimes does not
answer it, nor does assuming that central authorities of some sort imposed property regimes.
The first assertion, self-conscious cooperation, begs the question because it is the absence of
cooperation that was the problem to begin with, brought on, as Demsetz demonstrated, by

6
high transaction costs. Taking it as a given that property rights, individual rights in particular,
reduce transaction costs once the rights are in place, the fact remains that the same
bothersome2 transaction costs must be confronted in order to get the rights in place by means
of cooperation. Hence just how cooperation was achieved needs to be explained. But this, of
course, Demsetz did not do. Much the same can be said of the second assertion, centralized
intervention by some sort of governing authority. How did the authority come into being,
absent cooperation and collective action?

Readers who take Demsetz’s account as an evolutionary explanation based on intentional

design criticize it on just the grounds sketched above, and give similar treatment to later
works written in a Demsetzian vein. The charge is that the approach assumes away the crucial
problems of collective action and of accounting for the presence of government.

One proposed methodological solution to this problem, developed over the last several
decades, works up from the idea that small, close-knit groups have advantages in overcoming
obstacles to constructive collective action. Group members are relatively few in number,
known to each other, share common interests, and interact repeatedly. These features facilitate
cooperation, whether in the formation of property norms by group decision or by group
delegation to a central authority itself created by group decision. It is likely by this means that
individuals moved out of the state of nature and into increasingly centralized levels of
organization, eventuating, after many millennia, in modern government—the ultimate
designer.

4. Land Tenure

Land and tensions

Throughout sub-Saharan Africa, land is a fundamental issue for economic development, food
security and poverty reduction. Land is of crucial importance to the economies and societies
of the region, contributing a major share of GDP and employment in most countries, and
constituting the main livelihood basis for a large portion of the population. In many areas,
however, land is becoming increasingly scarce due to a variety of pressures, including
demographic growth. These pressures have resulted in increased competition for land between
different groups, such as multiple land users (farmers, herders, etc.), urban elites and foreign
2
gênant

7
investors. Moreover, socio-economic change has in many places eroded the customary rules
and institutions that have traditionally administered land rights. Tensions in relation to land
are particularly acute in Southern Africa due to the extremely inequitable land distribution
existing in this sub-region. These tensions have major political implications at national and
regional level, as they involve issues like control over scarce valuable resources and the
distribution of wealth and power in society.

To respond to these challenges, a large number of African states have adopted over the last
decade new policies and laws aimed at restructuring land relations. Land has also featured
high in the agendas of donors and development agencies, which have supported to varying
degrees reform programmes across Africa.

4.1. TENURE SECURITY AND LAND REFORM

1.1 The search for tenure security in Africa

Since independence, African governments have adopted policies and programmes aimed at
increasing land tenure security for farmers, so as to foster agricultural investment and
productivity. These policies have often ignored existing customary and local institutions, and
disregarded the distributive issues underlying tenure security (“security for whom?”). The
materialisation of their hoped for benefits has been generally limited, and their
implementation has resulted in loss of secondary rights. Over the last decade, new approaches
to improving tenure security have been devised, usually paying more attention to
local/customary norms and practices and to protecting all rights and interests in land.

1.2 Gaining access to land in a context of legal pluralism

Land tenure in much of Africa is usually portrayed as either customary/traditional, or

state/statutory. Customary land tenure is characterised by its largely unwritten nature, is based
on local practices and norms, and is flexible, negotiable and location specific. Its principles
stem from rights established through first clearance of land, or conquest.

Customary systems are usually managed by a land or village chief, traditional ruler or council
of elders. These systems are not static, but continually evolving as a result of diverse factors
like cultural interactions, socio-economic change and political processes. In this context,

8
“traditions” are continuously reinvented to back conflicting claims of different social groups
(Ranger, 1983; Chanock, 1985).

On the other hand, state systems of land tenure are usually based on written laws and
regulations, on acts of centralised or decentralised government agencies and on judicial
decisions. The principles underlying such systems derive from citizenship, nation-building,
and constitutional rights. Land rights are allocated and confirmed through the issuance of
titles or other forms of registration of ownership.

However, in practice the neat distinction between these two models of land tenure is
considerably blurred. ‘Customary’ systems have been much changed by a century or more of
contact and interference by governments, both colonial and since independence. An extreme
example is South Africa, where what is referred to as customary law is a mixture of
“tradition” and colonial and apartheid legislation, under which tribal authorities were salaried
government officials, subject to the State President. Equally, statutory systems for land
management usually operate with considerable possibilities for negotiation. Therefore,
African farmers gain access to land through a blend of “customary” and “statutory”, “formal”
and “informal”, institutions. A range of customary, statutory and hybrid institutions and
regulations having de jure or de facto authority over land rights co-exist in the same territory,
a phenomenon referred to as “legal pluralism”. A lack of clear hierarchy or other form of co-
ordination amongst the different structures creates confusion and fosters tenure insecurity.
Parties to land disputes invoke different norms to support competing claims, and choose the
institutional channel which they feel is most likely to be favourable to their cause
(“institutional shopping”). Typically, certain actors prefer one or other system. For example,
urban investors prefer to seek formal written backing for their land rights, while local people
may feel their rights are best represented through the customary sphere. Migrants and women
may feel that the formal statutory system provides a better guarantee of their rights over land
than would be possible under customary norms.

1.3 The debate over land titling and registration

For long, the policy response to this situation has been an attempt to eradicate customary
systems and replace them with a “modern” system of land tenure. Indeed, it was argued that
only “secure” private property could provide adequate incentives for investments in land, and
that such tenure security could only be achieved through land titling and registration. Land
registration can take various forms, from a centralised system of land titles, to a village-based

9
register of claims to land. It may merely record all existing rights to land, both statutory and
customary, or convert registered rights into freehold. Most registration systems combine a
plan or survey map of the land with a written document specifying the name of the rights
holder and the nature of the rights held.

The arguments in favour of registering title to land most commonly used are:

i. Land registration stimulates a more efficient use of the land, because it increases tenure
security and removes disincentives to invest in the longer term management and productivity
of the land;

ii. Land registration enables the creation of a land market, allowing land to be transferred
from less to more dynamic farmers and consolidated into larger holdings;

iii. Land registration provides farmers with a title that can be offered as collateral to financial
institutions, thereby improving farmers’ access to credit and allowing them to invest in land
improvements;

iv. Land registration provides governments with information regarding landholders and size
of fields, which can provide the basis for a system of property taxes.

These arguments prompted many post-independence governments in sub-Saharan Africa to

adopt programmes to register land rights and to convert customary rights into private
ownership (e.g. Kenya). However, in most of sub-Saharan Africa very little land has actually
been registered as private property. Moreover, in recent times policy prescriptions concerning
land titling and registration have come under challenge. On the one hand, while many
customary systems have been eroded by social, economic, political and cultural change,
others have proven to be very flexible, dynamic and capable of adapting to suit new
circumstances. On the other hand, research findings suggest that the hoped for benefits of
registration do not accrue automatically and, in some circumstances, the effects of registration
may be the converse of those anticipated. While land registration is often proposed as a means
to reduce disputes, the introduction of central registration systems may, at least in the short
term, exacerbate disputes and enable land grabbing. Thus, for example, elite groups may seek
to assert claims over land which was not theirs under customary law, in the knowledge of
impending registration. The mass of people without access to education, information and
contacts may find the land they thought was theirs has been registered by someone else.
Where there are significant costs to registration, in both cash and time, smallholders are

10
particularly vulnerable to losing their rights over land. Moreover, registration tends to
penalise holders of secondary land rights, such as women and herders, as these rights often do
not appear in the land register and are thus expropriated. Registration may not be enough to
improve farmers’ access to credit where high transaction and other costs hinder credit supply
in rural areas and where an unpredictable and fluctuating environment makes farmers risk-
averse and hence reluctant to apply for loans. Finally, where monetary and other costs for
registering land transactions are high, land transfers tend not to be recorded and the register
becomes rapidly outdated, thus limiting the potentially positive effects of registration
(Shipton, 1988; Atwood, 1990; Migot-Adholla et al., 1994; Lund, 1998 and 2001; Firmin-
Sellers & Firmin, 1999; Platteau, 2000). As for incentives to invest, tenure security is largely
dependent on the right-holder’s own perception. Where farmers consider their rights under
customary law as sufficiently secure, registration may not result in higher investments. On the
other hand, research has shown that farmers’ perceived tenure security might be increased
through means simpler than full-fledged registration procedures.

4.2. Land Tenure: Definition and meanings

3.1 Land tenure is the relationship, whether legally or customarily defined, among people, as
individuals or groups, with respect to land. (For convenience, “land” is used here to include
other natural resources such as water and trees.) Land tenure is an institution, i.e., rules
invented by societies to regulate behaviour. Rules of tenure define how property rights to land
are to be allocated within societies. They define how access is granted to rights to use, control,
and transfer land, as well as associated responsibilities and restraints. In simple terms, land
tenure systems determine who can use what resources for how long, and under what
conditions.

3.2 Land tenure is an important part of social, political and economic structures. It is multi-
dimensional, bringing into play social, technical, economic, institutional, legal and political
aspects that are often ignored but must be taken into account. Land tenure relationships may
be well-defined and enforceable in a formal court of law or through customary structures in a
community. Alternatively, they may be relatively poorly defined with ambiguities open to
exploitation.

3.3 Land tenure thus constitutes a web of intersecting interests. These include:

11
  Overriding interests: when a sovereign power (e.g., a nation or community has the
powers to allocate or reallocate land through expropriation, etc.)

 Overlapping interests: when several parties are allocated different rights to the same
parcel of land (e.g., one party may have lease rights, another may have a right of way,
etc.)

 Complementary interests: when different parties share the same interest in the same
parcel of land (e.g., when members of a community share common rights to grazing
land, etc.)

 Competing interests: when different parties contest the same interests in the same
parcel (e.g., when two parties independently claim rights to exclusive use of a parcel
of agricultural land. Land disputes arise from competing claims.)

3.4 Land tenure is often categorised as:

 Private: the assignment of rights to a private party who may be an individual, a

married couple, a group of people, or a corporate body such as a commercial entity or
non-profit organization. For example, within a community, individual families may
have exclusive rights to residential parcels, agricultural parcels and certain trees. Other
members of the community can be excluded from using these resources without the
consent of those who hold the rights.

 Communal: a right of commons may exist within a community where each member
has a right to use independently the holdings of the community. For example,
members of a community may have the right to graze cattle on a common pasture.

 Open access: specific rights are not assigned to anyone and no-one can be excluded.
This typically includes marine tenure where access to the high seas is generally open
to anyone; it may include rangelands, forests, etc, where there may be free access to
the resources for all. (An important difference between open access and communal
systems is that under a communal system non-members of the community are
excluded from using the common areas.)

 State: property rights are assigned to some authority in the public sector. For example,
in some countries, forest lands may fall under the mandate of the state, whether at a
central or decentralised level of government.

12
3.5 In practice, most forms of holdings may be found within a given society, for example,
common grazing rights, private residential and agricultural holdings, and state ownership of
forests. Customary tenure typically includes communal rights to pastures and exclusive
private rights to agricultural and residential parcels. In some countries, formally recognised
rights to such customary lands are vested in the nation state or the President “in trust” for the
citizens.

3.6 The right that a person has in an object such as land may be considered as property. The
range of property is extensive and includes, for example, intellectual property. In the case of
land tenure, it is sometimes described more precisely as property rights to land. A distinction
is often made between “real property” or “immovable property” on the one hand, and
“personal property” or “movable property” on the other hand. In the first case, property would
include land and fixtures (buildings, trees, etc) that would be regarded as immovable. In the
second case, property would include objects not considered fixed to the land, such as cattle,
etc.

3.7 In practice, multiple rights can be held by several different persons or groups. This has
given rise to the concept of “a bundle of rights”. Different rights to the same parcel of land,
such as the right to sell the land, the right to use the land through a lease, or the right to travel
across the land, may be pictured as “sticks in the bundle”. Each right may be held by a
different party. The bundle of rights, for example, may be shared between the owner and a
tenant to create a leasing or sharecropping arrangement allowing the tenant or sharecropper
the right to use the land on specified terms and conditions. Tenancies may range from formal
leaseholds of 999 years to informal seasonal agreements. If the farm is mortgaged, the
creditor may hold a right from the “bundle” to recover the unpaid loan through a sale of the
mortgaged property in the case of default. A neighbouring farmer may have the right from the
“bundle” to drive cattle across the land to obtain water at the river. Box 1 gives some
examples of rights.

13
BOX 1

EXAMPLES OF RIGHTS

 A right to use the land.

 A right to exclude unauthorized people from using the land.

 A right to control how land will be used.

 A right to derive income from the land.

 A right to protection from illegal expropriation of the land.

 A right to transmit the rights to the land to one’s successors, (i.e., a right held by
descendents to inherit the land).

 A right to alienate all rights to the entire holding (e.g., through sale), or to a portion of
the holding (e.g., by subdividing it).

 A right to alienate only a portion of the rights, e.g., through a lease.

 A residuary right to the land, i.e., when partially alienated rights lapse (such as when a
lease expires), those rights revert to the person who alienated them.

 A right to enjoy the property rights for an indeterminate length of time, i.e., rights
might not terminate at a specific date but can last in perpetuity.

 A duty not to use the land in a way that is harmful to other members of society, (i.e.,
the right is held by those who do not hold the right to use the land).

 A duty to surrender the rights to the land when they are taken away through a lawful
action, (e.g., in a case of insolvency where the right is held by the creditors, or in the
case of default on tax payments where the right is held by the state).

3.8 At times it may be useful to simplify the representation of property rights by identifying:

 use rights: rights to use the land for grazing, growing subsistence crops, gathering
minor forestry products, etc.

14
  control rights: rights to make decisions how the land should be used including
deciding what crops should be planted, and to benefit financially from the sale of
crops, etc.

 transfer rights: right to sell or mortgage the land, to convey the land to others through
intra-community reallocations, to transmit the land to heirs through inheritance, and to
reallocate use and control rights.

Very often, the poor in a community have only use rights. A woman, for example, may have
the right to use some land to grow crops to feed the family, while her husband may collect the
profits from selling any crops at the market. While such simplifications can be useful, it
should be noted that the exact manner in which rights to land are actually distributed and
enjoyed can be very complex.

3.9 In broad terms, land tenure rights are often classified according to whether they are
“formal” or “informal”. There can be perceptual problems with this approach because, for
example, some so-called informal rights may, in practice, be quite formal and secure in their
own context. Despite these perceptual problems, the classification of formal and informal
tenure can sometimes provide the basis for useful analysis.

3.10 Formal property rights may be regarded as those that are explicitly acknowledged by the
state and which may be protected using legal means.

3.11 Informal property rights are those that lack official recognition and protection. In some
cases, informal property rights are illegal, i.e., held in direct violation of the law. An extreme
case is when squatters occupy a site in contravention of an eviction notice. In many countries,
illegal property holdings arise because of inappropriate laws. For example, the minimum size
of a farm may be defined by law whereas in practice farms may be much smaller as a result of
informal subdivisions among heirs. Property rights may also be illegal because of their use,
e.g., the illegal conversion of agricultural land for urban purposes.

3.12 In other cases, property may be “extra-legal”, i.e., not against the law, but not recognised
by the law. In some countries, customary property held in rural indigenous communities falls
into this category. A distinction often made is between statutory rights or “formally
recognized rights” on the one hand and customary rights or “traditional rights” on the other
hand. This distinction is now becoming blurred in a number of countries, particularly in
Africa, which provide formal legal recognition to customary rights.

15
3.13 Formal and informal rights may exist in the same holding. For example, in a country that
forbids leasing or sharecropping, a person who holds legally recognized ownership rights to a
parcel may illegally lease out the land to someone who is landless.

3.14 These various forms of tenure can create a complex pattern of rights and other interests.
A particularly complex situation arises when statutory rights are granted in a way that does
not take into account existing customary rights (e.g., for agriculture and grazing). This clash
of de jure rights (existing because of the formal law) and de facto rights (existing in reality)
often occurs in already stressed marginal rainfed agriculture and pasture lands. Likewise in
conflict and post-conflict areas, encounters between settled and displaced populations lead to
great uncertainties as to who has, or should have, the control over which rights.

3.15 The layers of complexity and potential conflict are likely to be compounded, particularly
where, for example, state ownership is statutorily declared and state grants or leases have
been made without consultation with customary owners (who are not considered illegal), and
where squatters move illegally onto the land, as in figure 2.

FIGURE 2: Complexities and conflicts resulting from different types of tenure

16
4.3. Land administration

3.16 Land administration is the way in which the rules of land tenure are applied and made
operational. Land administration, whether formal or informal, comprises an extensive range
of systems and processes to administer:

 land rights: the allocation of rights in land; the delimitation of boundaries of parcels
for which the rights are allocated; the transfer from one party to another through sale,
lease, loan, gift or inheritance; and the adjudication of doubts and disputes regarding
rights and parcel boundaries.

 land-use regulation: land-use planning and enforcement and the adjudication of land
use conflicts.

 land valuation and taxation: the gathering of revenues through forms of land
valuation and taxation, and the adjudication of land valuation and taxation disputes.

3.17 Information on land, people, and their rights is fundamental to effective land
administration since rights to land do not exist in a physical form and they have to be
represented in some way. In a formal legal setting, information on rights, whether held by
individuals, families, communities, the state, or commercial and other organizations, is often
recorded in some form of land registration and cadastre system. In a customary tenure
environment, information may be held, unwritten, within a community through collective
memory and the use of witnesses. In a number of communities, those holding informal rights
may have “informal proofs” of rights, i.e., documents accepted by the community but not by
the formal state administration.

3.18 An enforcement or protection component is essential to effective land administration

since rights to land are valuable when claims to them can be enforced. Such a component
allows a person’s recognized rights to be protected against the acts of others. This protection
may come from the state or the community through social consensus as described below in
the section on “Tenure Security”. A stable land tenure regime is one in which the results of
protective actions are relatively easy to forecast. In a formal legal setting, rights may be
enforced through the system of courts, tribunals, etc. In a customary tenure environment,
rights may be enforced through customary leaders. In both cases, people may be induced to
recognise the rights of others through informal mechanisms such as community pressures.

17
People who know their rights, and know what to do if those rights are infringed, are more able
to protect their rights than those who are less knowledgeable.

3.19 Land administration is implemented through sets of procedures to manage information

on rights and their protection, such as:

 Procedures for land rights include defining how rights can be transferred from one
party to another through sale, lease, loan, gift and inheritance.

 Procedures for land use regulation include defining the way in which land use controls
are to be planned and enforced.

 Procedures for land valuation and taxation include defining methodologies for valuing
and taxing land.

Efficient procedures allow transactions to be completed quickly, inexpensively, and

transparently. However, in many parts of the world, formal land administration procedures are
time-consuming, bureaucratically cumbersome and expensive, and are frequently non-
transparent, inaccessible to much of the rural population, and are handled in languages and
forms that people do not understand. In such cases, high transaction costs may result in
transfers and other dealings taking place off-the-record or informally.

3.20 Finally, land administration requires actors to implement the procedures. In customary
tenure regimes, the customary leaders may play the principal role in land administration, for
example in allocating rights and resolving disputes. In a more formal setting, land
administration agencies may include land registries, land surveying, urban and rural planning,
and land valuation and taxation, as well as the court systems. Where customary tenure has
been recognised by the State, functional linkages are being developed between government
and customary land administration bodies.

3.21 Formalisation of the administration of land rights has been promoted as a pre-requisite
for economic development. Perceived benefits include increased tenure security and improved
access to credit, thereby providing the incentive and ability for farmers to invest in making
improvements to the land. Formal administration is also proposed as a means to facilitate a
land market, allowing land to move towards its “highest and best use”.

3.22 These claims are disputed by others who argue that too often, the flawed design and
implementation of projects to formalise property rights have resulted in a reduction of security

18
by concentrating rights to a parcel in the hands of an individual, and neglecting the claims of
others, particularly women and other vulnerable groups, who hold partial or common rights.
Similarly, it is argued by some that access to credit may not improve with formalisation since
many banks are unlikely to accept agricultural land as collateral against loans.

3.23 As a result, it has been suggested that formal registration of individual property rights
should be considered only in areas of high population density, where customary tenure
systems and dispute resolution systems are weak or absent, or where there have been other
major disruptions to customary land holdings. However, even where these conditions do not
exist, there is growing interest in several countries to formalise the rights of communities to
protect them against encroachment from outsiders (e.g., commercial farming operations and
even the State). In such cases, the community boundaries are defined, and title to the land is
registered in the name of the community. It is then left to the community to undertake its own
land administration, including the allocation of rights to land within its boundaries.

3.24 In many countries, formal and informal land administration co-exist when legal records
do not replace customary rights, or when newly created informal rights come into existence.
Tensions can exist between de jure and de facto rights to land. Discrepancies between formal
and informal or customary versions of tenure holdings create ambiguities to be exploited. In
some countries where formal land administration systems do not function well, different titles
may be issued by the State for the same parcel of land. This complicates the legal status of the
land since it gives rise to competing claims. The mere act of establishing and documenting
land boundaries and titles is not enough; it has to be done in a way that does not make the
situation worse. The role of local communities in investigating claims is crucial as they have
the knowledge of the local tenure arrangements.

4.4. Access to land

3.25 Access to land for the rural poor is often based on custom. Customary rights to land in
indigenous societies, for example, are usually created following their traditions and through
the ways in which community leaders assign land use rights to the community members.
These rights of access may have their origin in the use of the land over a long period. They
are often rights developed by ancestral occupation and by the use of land by ancestral
societies. In such cases, it is through the act of original clearance of the land and settlement by
ancestors that rights are claimed.

19
3.26 People also use a wide range of strategies to gain access to land. These include:

 Purchase, often using capital accumulated while working as migrants in urban areas.

 Adverse possession or prescription (the acquisition of rights through possession for a

prescribed period of time). In some countries, this may be the only method for small
farmers to gain formal access to vacant or abandoned land and to bring it into
productive use.

 Leasing, or gaining access to land by paying rent to the owner.

 Sharecropping, or gaining access to land in return for paying the owner a percentage
of the production.

 Inheritance, or gaining access to land as an heir.

 Squatting illegally on land.

3.27 In addition to such individual strategies, access to land can be provided systematically
through land reform interventions by national governments, often as a result of policies to
correct historic injustices and to distribute land more equitably. Such land reforms usually
occur in situations where much of the land is owned by a relatively small number of land
owners and the land is idle or under-utilised (although it should be noted that determining
whether land is under-utilised depends on the criteria selected for the assessment). In some
countries, land restitution has been an important type of land reform. Other land reform
interventions include land redistribution programmes which aim at providing the rural poor
with access to land and promoting efficiency and investment in agriculture. These
programmes are often, but not always, accompanied by provision of subsidised agricultural
services such as extension and credit. In some cases, the state has provided access to idle or
under-utilised public land but most often private land holdings have been the source of land
for resettlement purposes.

3.28 In imposed redistributive land reforms, land is taken from large land holders by the State
and transferred to landless and land-poor farmers. Compensation has been paid to the original
owners in some reforms but not in others. In some cases, the reforms have benefitted the
tenants who worked the land. Such reforms change the structure of land ownership by
transforming tenants into owners but do not change the operational holdings. In other cases,

20
the reforms have involved the resettlement of beneficiaries on the expropriated lands and the
creation of new farming operations.

3.29 Some recent land reform initiatives have been designed so that beneficiaries negotiate
with land owners to purchase land using funds provided by the State in the form of grants
and/or loans. Beneficiaries are usually required to form a group which identifies suitable land,
negotiates the purchase from the seller, formulates a project eligible for state grants and/or
credit, and determines how the land will be allocated among the members of the group and
what their corresponding payment obligations will be.

3.30 While there is broad consensus that land reform plays an important role in rural
development where land concentration is high, great controversy surrounds the choice of
mechanisms to transfer land from large land owners to the landless and land poor. However,
this debate is well beyond the scope of this guide to address.

4.5. Tenure security

3.31 Security of tenure is the certainty that a person’s rights to land will be recognized by
others and protected in cases of specific challenges. People with insecure tenure face the risk
that their rights to land will be threatened by competing claims, and even lost as a result of
eviction. Without security of tenure, households are significantly impaired in their ability to
secure sufficient food and to enjoy sustainable rural livelihoods.

3.32 Security of tenure cannot be measured directly and, to a large extent, it is what people
perceive it to be. The attributes of security of tenure may change from context to context. For
example, a person may have a right to use a parcel of land for a 6 month growing season, and
if that person is safe from eviction during the season, the tenure is secure. By extension,
tenure security can relate to the length of tenure, in the context of the time needed to recover
the cost of investment. Thus the person with use rights for 6 months will not plant trees, or
invest in irrigation works or take measures to prevent soil erosion as the time is too short for
that person to benefit from the investment. The tenure is insecure for long-term investments
even if it is secure for short-term ones.

3.33 The importance of long-term security has led some to argue that full security can arise
only when there is full private ownership (e.g., freehold) as, under such tenure, the time for
which the rights can be held is not limited to a fixed period. It is argued that only an owner
enjoys secure rights, and holders of lesser rights, such as tenants, have insecure tenure

21
because they are dependent on the will of the owner. It is then implied that security of tenure
comes only with holding transfer rights such as the rights to sell and mortgage. Equating
security with transfer rights to sell and mortgage is true for some parts of the world but it is
not true in many others. People in parts of the world where there are strong community-based
tenure regimes may enjoy tenure security without wishing to sell their land, or without having
the right to do so, or having strictly limited rights to transfer (e.g., transfers may be limited to
heirs through inheritance, or sales may be restricted to members of the community).

3.34 The sources of security may also vary from context to context:

 An important source is the community and its specific groups such as local farmers’
organizations and water users’ associations. When neighbours recognise and enforce a
person’s rights, that person’s security increases. In many customary tenure
arrangements, people gain property rights through membership of social communities.
Maintaining property rights validates membership in the group just as much as
membership facilitates the acquisition and safeguarding of property rights.

 Governments represent another source of security as they may provide political

recognition of some rights. For example, a government may accept the illegal
encroachment and settlement of a community on state forest lands and undertake not
to evict it. However, in doing so, a government usually recognises the right of the
community to occupy the land, but does not go as far as recognising the rights of
individual people within the community.

 Another source may be the administrative state and the formal legal system. The state
may provide security in general by affirming the rights that people hold as well as
through specific measures such as providing protection against trespass. Security is
often seen to come from protections provided through land registration and cadastral
systems, with adjudication of disputes taking place in the formal court system.

 In some countries, security can also be provided by coercive structures such as

“warlords” that emerge in the absence of an effective state during periods of civil
unrest. Of course, this is not a desirable source of security as these structures may in
turn prevent the development of strong communities and legal systems necessary for
good governance.

22
3.35 The total security enjoyed by a person is the cumulative security provided by all sources.
In many cases, increasing security from one or more sources will result in an increase in total
security. In many development projects, providing or improving legal security is considered
the most important way of increasing security of tenure. Examples of land tenure reforms
include the upgrading of informal rights to legally enforceable rights; the upgrading of state-
issued permits to leases that provide greater protection to the land users; the introduction of
provisions for communities to become the legal owners of their traditional land holdings
instead of the rights being vested in the State; and better definition of property rights through
improvements to formal land administration systems.

3.36 A person’s security of tenure may be threatened in many ways. Ironically, attempts to
increase the legal security of some may result in others losing their rights. For example, titling
and registration projects, if poorly designed, can reduce security of many rural residents by
failing to recognise certain rights, often held by women and the poor, and allowing them to be
merged into simplistically conceived “ownership” rights. The rights to important uses of the
land, for example, to gather minor forest products or to obtain water, may not be recognised
by the legal system and may be effectively destroyed as a result. Of course, other types of
development projects can also result in the loss of rights to land.

3.37 Rights may also be reduced or eliminated if the state starts to enforce existing rules that
prevent access to resources. For example, more rigid enforcement of state policy on forest
conservation may result in villagers being evicted from land which they have been using for
agricultural and grazing purposes.

3.38 Tenure insecurity may be caused by social changes. HIV/AIDS, for example, is
impacting the security of women in parts of Africa. Widows may lose access to land in a legal
sense if they are unable to inherit rights from their husbands, and in a practical sense if they
are forced off the farms by male relatives.

3.39 People may lose rights when others ignore land tenure rules. Exploitation of unequal
power relationships within communities, for example, may result in some members fencing
off portions of communal lands for their own exclusive use, thereby denying access by other
members of the community to shared grazing lands.

3.40 Landlessness may occur, of course, for reasons other than insecure tenure. Some may
sell their land through “distress sales” (forced sales) in order to survive in times of crises such

23
as famine, sickness or other calamities. Other reasons for selling land may include the need to
meet social pressures such as providing a dowry for daughters upon their marriage.

24