Land, because it is always a part of a particular natural and cultural "territory", because it is a support for various natural resources, will always remain to a certain extent a commons. Absolute private property of land is therefore a dangerous myth, to which should be substituted a conception based on bundles of different rights and various forms of collective resource management.
Land, a good unlike others
Land has at least two specificities:
1. Rights to land refer to a space, to a “territory”. A piece of the Earth’s crust cannot be destroyed or moved. Therefore “ownership” of land cannot be assimilated with ownership of just any object. Rights over a territory refer to the relations with other human beings liable to travel over this space or to use the resources it contains.
2. Land has the particularity of containing natural resources that are not the fruit of human labour. Thus, for example, natural fertility is not the same everywhere; “spontaneous” plant cover can also be used; the earth itself can contain water, minerals and so forth. This remains true nonetheless when another part of these resources may also result from the accumulated work of generations of farmers (fertility is not only a “natural” state).
Land rights therefore refer to relations with other humans who might travel over this space or use its resources. Thus the relationship between human beings and land is essentially a social relationship, a relationship between human beings based on land. For this reason, land was a primary focus of early political economists as they elaborated different theories of unearned income coming from land tenure.
However, land rights are now bought and sold in many parts of the world. In this sense, land has become a saleable good, though one that cannot be assimilated with goods that have been manufactured for sale. This is why, as early as 1944, Karl Polanyi spoke of fictional merchandise.
Absolute ownership of the ground, a myth without innocence
In “La Gestation de Propriété” [1] , Joseph Comby explains that land ownership can never be absolute: a simple idea whose implications are extremely important. Even in countries that have invented the right of “absolute” ownership, the latter cannot apply to the ground. (See, for example, the right in France to hunt on private property, and the myriad restrictions imposed on construction by local regulations, etc.).
As far as land is concerned, property is actually a bundle of rights. In other words, land ownership is nothing but the ownership of one or more rights and thus a landowner is merely he or she that has the most rights among all others. This leads to many possibilities; rights can overlap without causing problems, or be in contradiction with one another. This is the case in Africa, in most “indigenous” societies and even in less obvious but nonetheless concrete ways in places where private property predominates such as Europe and Latin America. Although property title deeds are often used to set the boundaries of a plot, it is the tenure rights signified rather than the surface area of the land that endows a possible exchange value.
If absolute ownership does not exist, we must therefore speak of the transformation of some tenure rights into commodities, and not of the land itself as a commodity.
“The satanic mill” [2]
These preliminary observations allow us to better understand why the market and capitalist development cannot “solve” land problems alone in the interest of the greatest number of people. This leads to several consequences that although obvious are nonetheless fundamental.
Like land and the rights associated with it, many other goods, especially those related to living organisms, are not genuine goods according to Polanyi’s definition of the term since the market is unable to regulate the good’s price. Likewise, goods other than land can be the sources of unearned income. Moreover, the prices of goods are not only set by markets, but also are affected by social conflicts. Therefore, prices may reflect the balance of power.
The temptation to consider economic phenomena independently from society, thereby constituting distinct systems to which the latter is subjected, is just an illusion. The dramatic consequences and dangers that this illusion entails were already blatant fifty years ago, but now they appear in new and more worrisome forms in the present era of neo-liberal dogma and globalisation.
According to Polanyi’s analysis, this madness, which he thought had ended, was the cause of the profound economic and social disorder of the first half of the 20th century, including the Great Depression and the rise of fascism. It has now returned to centre stage to cover the entire world, casting a growing shadow over the future of humankind.
The administration of property rights and the arbitration of conflicts
Since the relations binding people to the land are essentially social in nature, it is logical that contradictions and conflicts occur through time between people and social groups. Since no social system is static forever, conflicts are inevitable in a social system, but rather in constant flux. They can even be salutary and necessary, as emphasised by Etienne Le Roy, who insists on the fact that “what is serious in a conflict... is the failure to resolve it, making it worsen into dispute and then drama, with tragic consequences”. [3]
Therefore, in order to go beyond the basics, our reflections must constantly attempt to link together our understanding of “forms of social organisation at the local level” and land matters. Thus, it is impossible to conceive of a land tenure system in abstract form; the decision-making bodies responsible for modifying and updating land rights and those called to settle conflicts must also be taken into consideration.
Diverse land tenure administration systems exist around the world. They are related to specific historic processes. Procedures of inheritance, mechanisms for the periodic redistribution of land and wealth, the existence of bundles of rights, etc. have given rise to centralised land and wealth management systems whose foundations differ across cultures and time periods. Such differences can also be found within developed countries, and therefore do not correspond in any way to a demarcation between developed and underdeveloped societies, or between modernity and archaism. For example, in Europe, different land registers and several different ways to provide public notice of tenure rights coexist without raising irresolvable problems.
Different societies also have very different dispute settlement systems. Contrary to what is all too often accepted, there is no single, standard worldwide solution for information systems on tenure rights, nor is there one for conflict resolution.
A critique of key concepts pertaining to land rights is now necessary
The “Tragedy of the Commons”, an essay published in 1968 by G. Hardin, has often been evoked to justify the need for the privatisation of natural resources. According to this author, all collectively owned limited resources tend to be managed in a non-sustainable way until exhaustion, each person seeking to profit as much as possible before someone else does in their place. However, the problem is not so much the existence of common property as that of the lack of rules and mechanisms to ensure that management is carried out in the interest of most people.
This reflection on the management of common property has to be carried out on different levels: local, regional and national. However, it is now obvious that it must be extended to regions covering several countries and even the entire world. In view of this, the issue of land is a major global problem, since many of the world’s resources are increasingly considered as being the common property and heritage of humanity.
The issue of sustainable management of natural resources goes beyond the scope of land tenure matters, though it is intrinsically related to them. Debates on the common management of resources in developing countries with rural populations (hence unable to limit themselves to conservation policies based on reserves and national parks that exclude human beings), and debates on the multi-purpose role of farming in European countries point to the fact that we are looking for new methods and rules such as the concept of heritage management, among other things.
Better land tenure security requires the creation of new social capacities, better organisation of rural societies and the development of renewed institutions; it cannot be achieved solely by technological improvements in the field of land registers. Given the experiences mentioned above and the changes in progress, we need a fundamental overhaul of the prevailing values and concepts related to property in order to progress and overcome the obstacles formed by their inadequacy vis-à-vis the current situation. As already seen, this involves giving up the illusion of absolute ownership and recognising that in whatever circumstances, land incorporates an element of common property that ought to be managed by the appropriate bodies.
This conceptual evolution is far from over, as shown by the violent debates and struggles around the world between civil society, multinational corporations, governments and international institutions. Major private interests will continue to put up violent resistance for a long time to come and progress cannot be made without powerful, representative and democratic farmers’ organisations. Consequently, the debate on land property rights is an integral part of the quest for genuine world governance.
Set up decision-making bodies for managing common resources at the territorial level
Apart from rights over land in the strict meaning of the term, this entails managing all common property and taking into account bundles of rights over a single area. Just as agrarian reform, the sustainable management of resources (wood, water, biodiversity) cannot be ensured solely in a top-down manner through government institutions.
Setting up these participatory decision-making bodies at the level of different territories should constitute an avenue for our work in the coming years. This concerns all territories and not only so-called indigenous ones.
Today, this challenge cannot be dissociated from the implementation of land policies. In addition, it fits in with the mechanisms mentioned in the prior sections, whose aim is to empower a society to establish and apply policies of common resource management.