Transferability of Traditional Land Rights

In the earlier stages of traditional land systems, transfers of land rights sometimes occur but within the community and especially among close kin. Transfers to outsiders are either not permitted or approval by the whole community is required. However, tribal societies often have found ways to circumvent formal bans of land sales.58 Empirical evidence for this has been found. In Niger, for example, sales of land are on the increase in spite of the fact that customary regulations prohibit them.59 In the Volta region of

55. Reprinted from Agricultural Economics, 15(2) F. Byiringiro and T. Reardon, 'Farm productivity in Rwanda: effects of farm size, erosion and soil conservation investments', p. 135, Copyright (1996), with permission from Elsevier [emphasis in original].

56. H. Binswanger et al, 1995, p. 2703 (citing R. A. Berry and W. R. Cline), Agrarian Structure and Productivity in Developing Countries, International Labor Organization of the United Nations, Geneva, Switzeland, 1979.

57. Magdalena Garcia, Roger Norton, Mario Ponce and Roberta van Haeften, Agricultural Development Policies in Honduras: A Consumption Perspective, Office of International Cooperation and Development, US Department of Agriculture, Washington, DC, USA, 1988, p. 33.

58. R. Noronha, 'A review of the literature on land tenure systems in sub-Saharan Africa', Discussion Paper No. 43, Research Unit of the Agricultural and Rural Development Department, The World Bank, Washington, DC, USA, 1985 (cited in H. P. Binswanger et al, 1995, p. 2669).

59. This finding was reported in Amoul Kinni, Etude sur la commercialisation du betail et de al viande dans le departement de Zinder, Niger, University of Arizona, Arid Lands Natural Resources Committee, Tucson, AZ, USA, 1979.

Ghana, Nkunya60 says that outright purchases are becoming more and more frequent.61

The evolution of land rights in response to increasing scarcity of land relative to labor has not been confined to Africa and pre-Colombian America. Gershon Feder and David Feeny summarize the historical process of formalizing land rights in Thailand in the past century:

... in land-abundant, labor-scarce, early-nineteenth-century Thailand, slaves rather than land served as collateral in financial markets. There was a well-developed legal system to govern transactions in labor commitments. In contrast, the system of usufruct land rights was not as extensively developed. ... As land became more valuable and frontier areas were brought under cultivation, land disputes became endemic. The Thai government responded with a series of procedural and administrative changes. A major new law on land rights was enacted in 1892. . .. the lack of adequate surveys and record-keeping continued to inhibit the precise documentation of rights; land disputes continued. In 1896 the government responded by initiating a cadastral survey in an area in which important government officials were also landowners, and in 1901 created a formal system of land titling.62

However, it must be recognized that under most customary systems of land tenure, selling land still is difficult if not impossible. The historical trend toward progressive individualization of land rights not only raises the question of what the nature of land rights should be in a market economy, but to what degree and how they should be regulated. Regulation of land use does exist in traditional societies, particularly with respect to rights of transfer of land and fallow periods and other measures for maintenance of soil fertility; such regulation often is exercised by village councils instead of being promulgated through written laws and the actions of impersonal bureaucracies.

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