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Franz von BENDA-BECKMANN, Keebet von BENDA BECKMANN & Melanie WIBER (eds), Changing Properties of Property

New York & Oxford, Berghahn Books, 2006. vii + 367p.
Els A. Baerends
p. 250-256
Référence(s) :

Changing Properties of Property, New York & Oxford, Berghahn Books, 2006. vii + 367 pages.

Texte intégral

Badly needed deconstruction of assumptions about property

1Some deeply rooted assumptions regarding property relations and regulations in Western thinking have taken the form of ideological legal constructions of almost mythical proportions claiming universal validity. These assumptions have frequently led to misunderstandings of the real nature of property relationships in concrete cases and as a consequence have caused serious problems when applied in actual practice by national states or organisations involved in socio-political reforms and so-called development projects. The widely used, broad categories of property, ‘open access’, state property, private property and communal property’ – labelled by Franz von Benda Beckmann as ‘The Big Four’ – constituted ideal models that hardly ever occur in practice. These categories are empirically incorrect for both Western and non-Western socio-legal contexts. Rethinking of property constructions based in sound empirical investigation is seriously needed to counterbalance these ideological assumptions concerning property, for practical as well as theoretical reasons.

Layout for a new analytical framework

2Here is a book with arguments based on the analysis of empirical data on property regimes from all over the world showing how research and understanding of property regimes could be furthered by an adequate analytical framework.

3In a thought provoking introduction the editors, Franz and Keebet von Benda-Beckmann and Melanie Wiber present a comparative analysis of the many variations occurring in concepts and forms of property in different socio-economic and political settings and the dynamics in property regimes over time. These three legal anthropologists, all well versed in the study of property, propose a framework intended for more accurate description and analysis of the way property is defined, institutionalized and operating in actual situations. Although they do not pretend to come up with a full-grown new theory of property, they do offer a useful blueprint for an analytical framework through which a cross-culturally valid theoretical approach of property can be developed.

4Property concerns the ways in which the relations between people with respect to valuables are given form and significance. Property can be used as a cover term for a wide variety of different arrangements. Broadly defined it refers to the organization and legitimation of rights and obligations with respect to goods that are regarded as valuable. Relative scarcity enhances the value and hence the competition over such goods and thus increases the need to make arrangements for including and excluding individuals and groups with respect to access to and control over these valuables.

5The analytical framework distinguishes three major elements: the property holders (social units as well as individuals), the property objects and the rights and responsibilities of the property holders with respect to the objects of value. The arrangement of these elements vary from one society to another as well as over time. Thus the analysis of any particular property arrangement starts by identifying its three major elements. A classical but still useful way to describe and analyze the fact that different holders, social units as well as individuals, can simultaneously hold different types of rights with respect to the same property object, is the idea of property as a bundle of rights and obligations associated with an object. The totality of property rights and obligations as conceptualized in any society can be bundled or distributed to different holders. A fairly universal and useful distinction is that between rights to regulate, supervise, allocate and represent in external relationships, on the one hand and the rights to use and exploit economically, on the other hand.

6A distinction between the different social phenomena in which property is expressed, according to the degree of abstraction, is analytically useful and the resulting distinct categories are referred to as ‘layers of social organization’. These consist of cultural ideals or ideologies at the highest level of abstraction, of legal institutions at another level and of the actual social relationships and social practices with respect to property at grassroots level. Although the property notion of one level cannot simply be reduced to that in another one, the different layers are interrelated and affect each other.

Variety of case studies presented

7The theoretical outlines presented in the introduction are exemplified in fourteen chapters by sixteen authors from different disciplinary backgrounds in anthropology, sociology, history, political science, law and forestry. Their studies provide detailed information on the complexities of property relations and their dynamics in various socio-legal contexts, concerning basic resources as land and water, fisheries, forest as well as objects valued for their specific meaning with respect to collective and individual identities. They present descriptions and analyses of a wide variety of property arrangements based on empirical investigations in non-western as well as in western contexts and in post-socialist countries in Central and Eastern Europe. Each chapter constitutes a concise treatise on a particular property issue complemented with extensive references to the literature that will satisfy the inquisitive reader. Recurrent themes are the problems caused by the discrepancy between the applied property concepts and the rights and obligations actually held, the consequences of introducing privatisation as a magic vehicle for economic development, the misunderstandings concerning communal property and confusions about who can claim rightful ownership in a particular situation.

8The idea of property as closely connected to the existence of a state is brought down by Charles Geiser, in his contribution ‘Ownership in Stateless Places’, comes up with evidence that property rights existed long before the state model of governance and have in fact survived the collapse of states. It is an illusion to think that states have complete control over property arrangements. This is illustrated quite clearly – though there are many other examples - by the fact that socialist states proved unable to establish complete socialist property and post-socialist states could not effectively introduce private property regimes throughout.

9The deep-seated assumption that private tenure enhances economic production is challenged by Esther Kingston-Mann for the agricultural revolution in eighteenth century England. She argues that one-sided attention for the private property owners and a lack of data on the majority of peasants and factory workers, the users of commons, commune peasants and collective farmers during this period has led to a misrepresentation of the actual situation, picturing privatisation as the only significant factor in economic development and neglecting the productive economic potential of non-private and communal tenure institutions. She then compares these changes in eighteenth century England concerning property holding with those in Russia since the revolution in 1905.

10Striking parallels between the situations in post-colonial countries in Africa and those in post-socialist countries with respect to struggles over land are brought to the fore by Pauline Peters in a comparative analysis. The decollectivisation and institutional dismantling in post-socialist states and the imposition of structural adjustment and market liberalisation policies in postcolonial Africa both have failed to produce the expected growth in economic and civil society. Instead they have caused economic distress and increased social inequality, social conflict and political turmoil, and they have given rise to illicit and informal activities. Peters makes the point that it is necessary to go beyond the ever more detailed documentation of the social embeddedness of property relations as well as to develop theoretical models that specifically reject the asocial reductionism of economics and ‘new’ institutionalism and expose the dominant model of private property as unrealistic and unworkable.

11The fact that land titles carry not only rights but also obligations is stressed by Thomas Sikor in his comparative study of property politics in rural Central and Eastern Europe. He focuses in particular on the obligations concerning environmental protection and investigates the ways in which regulations for environmental protection in agriculture are implemented in two actual situations, in the Czech Republic and in Poland.

12The market oriented land reform and farm privatisation in Russia, starting in the early 1990s, intended to do away with the inefficiency of the Soviet farms and to empower the rural population. Oane Visser shows that these reforms failed to realise both objectives and that actual changes in forms of property holding and management as a consequence of the legal reforms were insignificant. He examines the internal dynamics of collective enterprises focussing on the labour relations and finds that property reformers have overestimated the extent to which reforms in formal property can induce changes in property practices and labour relations at farm level. The farm managers were not able to implement a stricter property and labour regime as this would mean a radical change of the existing socio-economic relations that might easily result in social disorder and undermining of the managers’ position. The focus of the reform was on the rights associated with ownership rather than on the obligations, both social and environmental.

13Lenin’s cooperative plan to facilitate the gradual transition from capitalist to socialist agriculture was founded on the assumption that a system based on public property was superior to one based in private property. The oversimplified notions of both the collective property arrangements that had to be replaced and the private property arrangements supposed to replace them belong to the ideological layer. Eidson analyses the application of Lenin’s cooperative plan in agricultural cooperatives in the German Democratic Republic from three different angles : as a legal or political norm, as a social historical given and as a subjective experience. For this last angle he interviewed farmers and agricultural functionaries on their experiences.

14The complications involved in restitution and redistribution of property rights to basic resources to the original property holders are exemplified by two different studies, one of the restitution of rights to fisheries to the original population of New Zealand, the Maori, the other about the redistribution of land in post-apartheid South Africa. The question of Maori property rights to fishing grounds in the waters of New Zealand is addressed by Toon van Meijl, who shows that the political debate about this issue is dominated by the problem to find a balance between historical justice and social justice. Restitution of property rights that were dispossessed in the 19th century does not automatically provide a solution for the poverty of part of the Maori population.

15Non-western landtenure systems still tend to be characterized by development economists and policy makers as ‘communal’, whatever that may mean. In a shorter version of their article on communal property rights in Minangkabau (2004), Franz and Keebet von Benda-Beckmann analyze the complexities of ‘communal’ ownership, the misunderstandings and the changes over time. In Minangkabau these are partly a consequence of political measures in colonial time that impacted the local socio-political organization considerably. Thorough and long term field research by the authors as well as a wealth of historical data on Minangkabau from research in colonial times allow for considerable detail on changing property relationships in this society. This case study demonstrates the importance of a distinction between communal control by the matrilineage as a whole in external relationships and the internal allocation of rights to different individuals and lineage segments. This distinction is relevant not only for Minangkabau but also for many other situations in which a local group holds basic, almost sovereign rights over land and allocates parts of this land to individual members of the group for long term exploitation. Outsiders who are accepted as co-resident strangers can also receive rights of use, but on different conditions.

16A thoroughly documented case of the embeddeness of property in social relationships in the commons of a Mexican ejido is presented by Monique Nuijten and David Lorenzo. Their study successfully applies the theoretical approach outlined in the introduction to data collected through intensive and long term field research. Nuijten and Lorenzo argue that a better understanding of property relations in their respective social and political settings (for which they use the term ‘force fields’ to stress the dynamics in terms of power in these settings) is crucial for the debates about the management of natural resources.

17It has been argued that state recognition of local, customary rights to productive resources can be an effective way to prevent open access to and overexploitation of such resources. The use and control of forest resources in Madagascar investigated by Frank Muttenzer shows that the situation is far more complicated in actual practice. Not only does it involve a plurality of actors with different interests and a plurality of normative orders that are referred to, but the different conceptualizations of property rights by the actors tend to lead to mutual misunderstandings. Actual practice is characterized by transactions between right holders each of them holding only some of the rights that constitute a complete ‘bundle’. Such insights are highly relevant for policy makers involved in sustainable development projects.

18The study by Edella Schlager of conflicts between holders of rights to water along the South Platte River in Colorado, in a very arid environment, shows clearly that concepts with respect to rights to water, from contexts where there is no real scarcity cannot be applied in an arid situation. A property system more suitable for an arid environment requires joint use of surface and ground water supplies. As groundwater pumping evidently affects the level of the surface water, the most simple and practical solution would be to treat the two as a single source. Historically though a first in right rule (prior appropriation system) was applied to surface water, whereas a beneficial use doctrine governed access to ground water by land owners. Conflicts over water persisted in an institutional setting that favoured senior surface water rights holders who were unwilling to support substantial changes in the legal system.

19The problematic nature of an unusual object of property entitlements, the entitlements to genealogical information on Icelanders, assembled and used in the digital form of the Book of Icelanders is brought to attention by Gisli Palsson. This information is valuable not only for the Icelanders, in tracing their relationships to each other but also as a database for medical research, because a relatively homogenous population with good medical records provides the ideal material for linkage analysis disclosing the genetic basis of some diseases.

20Another type of property concerns rights to age-old objects acquiring presently new values and thus becoming a source of conflict between different types of social units, each with different legitimate claims. In a comparative analysis of the conflicts over the repatriation of objects claimed on the basis of cultural property rights, Melanie Wiber refers to recent reevaluations of the public/private dichotomy in property theory. She analyses two concrete cases of cultural objects seen as very meaningful expressions of collective identity, the Fair Winds Water Drum in Canada and the human remains about 9000 years old found in a burial site in Nevada referred to as the Spirit Cave Ancestor.

21These brief references to the different contributions give some indications as to the richness and variety of the materials presented as well as the overall intention to engage in comparative analyses.

Gender and property

22Although the gender aspect of property comes up occasionally in several chapters, and the index provides some references, there is no contribution dealing specifically with the problems of women concerning access to and control over property. As women’s rights are under most traditional property regimes for a large part embedded in their relationships to men (fathers, husbands and sons) it is, especially under changing circumstances of resettlement, restitution and changes in property regimes, very difficult for them to hold on to their secondary rights or get these formally acknowledged. This results in even stronger dependence on men for access to basic resources increases in most of these cases and threatens their social security as well as that of their children. Privatization of basic resources (land and water) has more often than not excluded women from adequate access. The western model of the household as a western construction of a basic social unit in which women’s rights are comfortably ‘embedded’ and controlled by the husband has had very negative effects on women’s socio-economic autonomy. Although I am generally in favour of gender issues being integrated rather than dealt with separately, I think the position of women with respect to property merits more attention than it is receiving here.

Restriction on the number of animals on common pastureland

23In the introductory chapter it is said that European farmers in the past could place as many animals on their land as they could afford. Probably the authors refer to the farmers’ autonomy in the period before the recent introduction of restrictive measures (quota) on the production of milk and manure with respect to privately owned pastures. However, restrictions on the amount of sheep that farmers were allowed to put out to pasture on the village commons existed in the past, from the seventeenth until the early nineteenth century, in the province of Drenthe in the Netherlands. The number of sheep a farmer was allowed to have was, by local law, precisely defined in relation to the surface of cultivated land. Transfers of land through inheritance or sale included the entitlement to a fixed number of sheep in relation to the size of the plot. This legal arrangement constituted an integral part of an agricultural system in which sheeps’dung was collected in stables overnight and used to fertilize the poor soil of the arable land. Data from the archives on held property, show that the amount of land held and the number of sheep owned in fact strictly conformed to the norms. As the village herd was daily rounded up by a herdsman who was well aware of the individual entitlements of his farmer-clients, this implied an effective control on compliance with the regulations.

Conclusion

24This book can be strongly recommended to academics in search of a new empirically based cross-cultural valid theoretical framework for the analysis of property forms. The blueprint offered can stimulate more sophisticated research that in turn will further contribute to property theory. The framework encourages researchers to contribute from their own experience instead of trying to fit their data into prefabricated categories of western ideological thinking. The ideas presented in the introduction and in the descriptions and analyses of the various cases are also highly relevant for policy makers, should they be willing to take the trouble to look for good information about unfamiliar realities of property arrangements. The information presented here could open the eyes of development economists who still hold on to oversimplified notions of collective property arrangements and broaden their view so as to look beyond the standard categories of property as frozen in the ‘Big Four’. The ideal models of individual and collective property are corrected by convincing demonstrations in many different cases where neither does exist in pure form.

25Whether the insights offered here will eventually overthrow the deeply rooted notions from western legal tradition as frozen in the Big Four remains questionable, considering the general resistance towards the acceptation of useful knowledge and the small impact of useful legal anthropological findings on legal practice and economic policies.

26Although the title of the book stresses the dynamics in property relations, some of the case studies clearly show that there exists a resistance to radical changes in property relations and a tendency to continuity despite changed circumstances. Apparently changes at the ideological level and at the legal institutional level do not necessarily directly affect actual property relations, especially when these are strongly embedded.

27Confronted with a bewildering variety of property relationships in actual practice, with exemplary and rigid legalistic models of mainly western signature considered as optimal instruments and over time both continuity and change in the dynamics of the properties of property, one cannot help wondering whether it is possible to detect underlying universal basics with respect to property and find regularities in the connections between specific characteristics of certain types of property, the way such property is exploited and at least some general rules governing access, use and control.

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Els A. Baerends, « Franz von BENDA-BECKMANN, Keebet von BENDA BECKMANN & Melanie WIBER (eds), Changing Properties of Property », Droit et cultures, 54 | 2007, 250-256.

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Els A. Baerends, « Franz von BENDA-BECKMANN, Keebet von BENDA BECKMANN & Melanie WIBER (eds), Changing Properties of Property », Droit et cultures [En ligne], 54 | 2007-2, mis en ligne le 31 mars 2010, consulté le 22 octobre 2017. URL : http://droitcultures.revues.org/1911

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