Historical Trends Regarding Rights to Use Land

Rights to land take many forms, and unrestricted private ownership is only one of them. Almost all customary systems of land management designate both communal areas where, for example, all families in a village may graze their livestock, and areas in which a 'parcel' is reserved for independent cultivation by each family. In both cases, rights of usufruct are defined but not ownership rights that would permit the owners to transfer the land. The ownership of the land, such as it is, belongs to the collectivity (usually the village).

Pre-Columbian Aztec society again provides a reminder of the antiquity of these practices:

The calpulli [settlement] was the unrestricted owner of its [designated] lands; but the right to use the land belonged to the families who held it in perfectly well delimited plots. ... the usufruct right was transferrable from fathers to sons, without limitation or time limit; but it was subject to two essential conditions; the first was to cultivate the land without interruption; if the family ceased to cultivate it for two consecutive years, the chief of the settlement summoned the family [to discuss it], and if in the following year [the situation] was not remedied, the family lost its usufruct right irredeemably.

The second condition was to remain in the settlement to which the land belonged. . . . [furthermore] only those who were descendants of members of the settlement were entitled to make use of the communal property.

When some land of a calpulli remained unused for whatever reason, the chief. . . with the agreement of the elders, divided it among newly formed families.17

All over the world, the rights to individual parcels have been found to undergo an evolution as population pressure on the land increases (i.e. as the value of land increases relative to the value of labor). When the land is in abundance, the rights are general in that a family does not necessarily have access to the same plot year after year, but rather it is only guaranteed access to land somewhere in the village's domain. In a typical pattern, a family may cultivate a plot for two consecutive years, after which it is left fallow -becoming communal land - and all families may put their animals to graze on it. After the fallow period, the plot may be assigned to another family, and the first family will in turn receive rights to a different plot.

As population pressure increases, land becomes relatively more scarce and families become motivated to hold onto the land they have been working, out of uncertainty about the prospects of obtaining another piece of land which is equivalent in quantity and quality. Hence, over

1?. L. Mendieta y Núñez, 1983, p. 1? [author's translation].

time, rights to use the land tend to become specific to particular plots. Where the legal system of land tenure permits it, there is a corresponding tendency toward claiming private ownership of the land a family has been working.

Accordingly, Daniel Cotlear found the following trends in land tenure in indigenous communities of the highlands of Peru:

The original form of land ownership in the Andean communities was communal; the families of the community members had the right to cultivate and graze their livestock on the community's lands and all other families were excluded from those rights. Each family had a general right to be periodically assigned "fresh" land for cultivation and it retained exclusive rights to specific plots only as long as the cropping cycle lasted; these rights were lost when the land entered into fallow once again. .. .

The basis of the original system was the abundance of land. Increasing pressure on the land was what led to change. When the plots of land began to become scarce, the community members wanted to re-cultivate a given parcel before the normal period of fallow would have ended. . .. Each year the cropped area covered a larger portion of the land in these conditions, it became increasingly difficult to find plots of better land which were not already taken by another family. ... In this way, under the increasing pressure on the land, the fallow period was reduced and the community members became more conscious of the necessity of developing special rights for particular pieces of land. From then on, the development of informal property rights followed rapidly upon increases in the cropping intensity.18

A similar pattern of evolution of customary land rights was observed in Zambia:

Most Zambians conduct their activities in accordance with and subject to customary law. . .. Two contending views are held on customary land tenure in customary law. One view suggests that land and land rights are not individual but commonly shared. The other, increasingly held view recognizes individualism in land relations and tenure. .. . Both views are valid because they arise from the dynamism of customary tenure, which has evolved from commonly shared land rights to individualiza-tion of croplands with continued commonly shared rights to grazing land, forests and fisheries. Individualization of croplands is a result of agricultural intensification, increase in population pressure and commercialization of agriculture.19

Boserup, in her seminal work, saw this trend as a component of an almost universal pattern of evolution of land tenure:

Both the physiocrats and the classical economists in Britain based their ideas of the effects of population growth in agriculture upon the assumption that private property in land emerges when agricultural land becomes scarce under the pressure of growing numbers of people. . . . that a class of private landowners would appear as soon as good agricultural land had become scarce. . .. The gradual disappearance of the general rights to clear new plots and to graze the animals freely in fallow and commons and the replacement of these rights by the permanent right of each cultivator family over particular pieces of land, is only one link in the chain of events which gradually changes the agrarian structure in such a way that private property in land becomes a dominating feature.20

18. Daniel Cotlear, Desarrollo Campesino en los Andes: Cambio Tecnológico y Transformación Social en las Comunidades de la Sierra del Perú, Instituto de Estudios Peruanos, Lima, Peru, 1989, pp. 48-49 [author's translation].

19. Vernon R. N. Chinene, Fabian Maimbo, Diana J. Banda and Stemon C. Msune, 'A comparison of customary and leasehold tenure: agriculture and development in Zambia', Land Reform, Food and Agriculture Organization of the United Nations, Rome, 1998/2, p. 91.

Land rights under Islamic law are similar in some respects, but not in all, to other traditional systems:

As with other indigenous systems, land belonged to the 'person who vivified it'.. . the act of cultivation, or boring and enclosing underlying streams, gave the person doing so a right of ownership. But Islamic law differed from other indigenous rules in two respects: First, once land had been appropriated, nonuse did not mean a loss of ownership; that could happen only through conquest or sale. Second, Islamic law provided for defined rules of inheritance for both men and women. . . . (G. Feder and R. Noronha, 'Land rights systems and agricultural development in sub-Saharan Africa', The World Bank Research Observer, 2(2), July 1987, p. 147.)

While not agreeing that such an evolutionary process must necessarily lead to private property, Platteau observed, 'population growth and commercialization of agriculture have always resulted in a process of individualization of land tenure. This means, broadly speaking, that the rights of individuals or nuclear (as opposed to extended) families have been gradually increased at the expense of the larger group's prerogatives'.21 In his extensive survey of sub-Saharan Africa, he cites studies whose findings support this trend in pre-Independence societies in Ghana, Niger, Nigeria, Rwanda, Burundi, Madagascar, Tanzania and Senegal (although the trend proceeded at different speeds in different parts of Senegal).

Today, in Africa individual rights are more prevalent than communal rights on croplands in most cases. Atwood, citing several studies, comments that 'African farming is most often based on individual household or family units, not on larger communal farm operations. Land-use rights, most often to a specific plot of land, are held by individuals or households'.22

Nevertheless, traditional land rights can display great complexity and imagination in providing resource access to satisfy basic needs. Traditional systems have shown considerable flexibility in defining bundles of land rights, as documented by Tidiane Ngaido and Michael Kirk, drawing upon many observations in African and Asian societies:

. . . our broad definition of rangelands suggests the parallel existence of different property rights regimes. For example, communities may hold common property rights over their local pastures, use-rights over the routes and grazing corridors, access rights that are generally based on reciprocal arrangements with neighboring communities, and private rights on the fields that they cultivate on high potential areas of their pastures. ... Ngaido (1998)23 therefore, proposes the classification of property rights in rangeland as:

• Private property rights, which can be enjoyed by individuals or families, can be either on animals, water resources or high-potential tracts of rangelands (e.g. "wadis" or "bas fonds"). Private property assures full control over the resource including the right to sell or lend.24

• Secured access rights, which are dominant rights over pastoral resources, are use-rights granted to community members by traditional leaders on their common pastures and water resources for their production activities. Under such tenure regimes, individuals have only priority use-rights, which can be maintained for long time periods but do not entitle individuals to private property.

23. Tidiane Ngaido, 'Can pastoral institutions perform without access options?', paper presented at the International Symposium on Property Rights, Risk and Livestock Development, Feldafing, Germany, September 27-30, 1998.

24. Here, Ngaido might have said, 'full control to the extent permitted by law, formal or informal'.

However, the flexibility of this tenure system allows leaders to recapture unused land or redistribute land to needy members.

• Access options are bundles of options available to individuals and communities for securing their livelihood and production systems in response to the constraints they face. These options could be based on formalized or informal institutional arrangements such as reciprocity or on market relations like purchase of feed or rental of harvested fields. In eastern Sudan, written inter-ethnic contracts on reciprocal range utilization in times of crises co-exist with informal oral arrangements since the 19th century. They are increasingly complemented by market transactions on feed resources, such as agricultural by-products and water, as well as by manifold tenancy arrangements for feed resources based on fixed rent or sharecropping.. . .25

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