Lynn Ellsworth A Place in The World

A Place in the World: A Review
of the Global Debate

on Tenure Security
FORD FOUNDATION By Lynn Ellsworth
FORD FOUNDATION
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Our goals are to: Strengthen democratic values,
Reduce poverty and injustice,
Promote international cooperation, and
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This has been our purpose for more than half a century.
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understanding, enhance excellence, enable people to improve their lives, and reinforce
their commitment to society.
Asset Building and Community Development Program
The Foundations Asset Building and Community Development Program supports
efforts to reduce poverty and injustice by helping to build the financial, natural,
social, and human assets of low-income individuals and communities.
Environment and Development Affinity Group (EDAG)
The Environment and Development Affinity Group is an association of Ford
Foundation program staff whose mission is to promote global learning and mobilize
change in the field of environment and development. It promotes a theory and practice
of development worldwide that is compatible with the sustainable and equitable use
of environmental assets, including the protection, restoration, and enhancement of
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Mission Statement
Property rights have a profound
effect on who benefits from forests.
Copyright 2004
by the Ford Foundation
all rights reserved.
Mission Statement
4 Foreword
5 Definitions
6 Feudal Forests and
Britains New Forest
of William the
Conqueror
7 History of the Concept
of Tenure Security
10 Security of Tenure
and the Property
Rights School
11 Tenure Security
and the Case
of Natural Forests
14 Security of Tenure
in the Agrarian
Structure School
15 Is There Empirical
Evidence for the Theory
of the Property Rights
School?
16 Tenure Security and
Common Property
19 Key Arguments
of the Common
Property Advocates
20 Institutionalists
22 A Summary of the Four
Analytical Traditions
23 Implications and
Conclusions
25 Notes
27 Bibliography
29 Credits
By Lynn Ellsworth
A Place in the World
tions. These assets include (2002, pp. 2-3):
Human assets such as the education and other marketable skills that
allow low-income people to obtain and retain employment that pays a living
wage, as well as comprehensive reproductive health which affects the
capacity of people to work, overcome poverty, and lead satisfying lives;
Financial holdings of low-income people, such as savings, homeowner-
ship, and equity in a business;
Social bonds and community relations that constitute the social capital
and civic culture of a place and that can break down the isolation of the poor,
as well as the webs of interpersonal and intergenerational relationships that
individuals need as a base of security and support; and
Natural resources, such as forests, wildlife, land, and livestock that
can underpin communities and provide sustainable livelihoods, as well as
environmental services such as a forests role in the cleansing, recycling,
and renewal of the air and water that sustain human life.
When this approach is applied to communities that are dependent upon
converting natural resources into sustainable livelihoods, it becomes a
strategy for building the natural assets of these communities. The theoretical
bases for building natural assets have been explored by Boyce (2001),
Boyce and Pastor (2001), and Boyce and Shelley (2003). Boyce and his co-
authors note that the application of asset-building strategies to natural assets
is compelling because strategies for building natural assets in the hands of
low-income individuals and communities can simultaneously advance the
goals of poverty reduction, environmental protection and environmental
justice (2001, p. 268). It countermands the conventional wisdom that the poor
face an inescapable tradeoff between higher incomes and a better environ-
ment. And building natural assets can contribute not only increased income
but also nonincome benefits such as health and environmental quality.
For more than 20 years Ford Foundation programs around the world have
involved support for community-based forestry in its many forms and facets.
What does it mean to have secure tenure for a piece of farm
land, forest land, or pasture land? And how important might secure tenure
be for the creation of sustainable community livelihoods among the hundreds
of millions of the worlds poorest people who are dependent upon land as the
prime natural asset from which they might develop a livelihood? What rela-
tionship does the definition of secure tenure have to the creation, use, and
defense of property rights?
These are some of the critical issues addressed by Lynn Ellsworth in this
informative paper, one of a pair of papers on tenure issues related to forest
lands developed by Forest Trends, Inc. at the invitation of the Ford Foundation.
Drawing on more than 50 years of academic debate and the evolution of four
distinct traditions of land tenure analysis, this paper sets the stage for its close-
ly linked partner, a paper entitled Deeper Roots: Strategies for Strengthening
Community Property Rights over Forests: Lessons and Opportunities for
Practitioners, which is also published in this series.
Why is this work of special importance to the Ford Foundation? Why
undertake this analysis at this point? What importance could it have for
other funders and development organizations? Those questions provide the
focus for this brief foreword.
For the past five years, much of the work of the Ford Foundation linked to
the alleviation of poverty and injustice has been organized conceptually
around an asset-building approach in which work at the level of local commu-
nities is an important facet. The asset-building approach to poverty alleviation
provides a significant departure from other paradigms that focused primarily
upon subsidy and transfer programs that temporarily raise the incomes, or the
consumption levels, of persons deemed to be poor, without affecting signifi-
cantly the determinants of that poverty (cf. Sherraden 1991; Oliver and
Shapiro 1995; and Ford Foundation 2002). The asset-building approach builds
the enduring resources indeed, the assets that individuals, organizations,
or communities can acquire, develop, improve and transfer across genera-
Foreword By Michael Conroy
2 A Place in the World
A Place in the World 3
From significant support for joint forest management in India, where commu-
nities become the guardians of state-owned forests in exchange for limited
sustainable use rights, to programs for improving community management of
the 70% of Mexicos forest lands that they control, and community involvement
in the low-impact restoration of federal forest lands in the United States,
community approaches to forestry have been a hallmark of Ford Foundation
work in many countries.
Ellsworths analysis in this paper illustrates that there is no single form of
tenure, no particular pattern of property rights, that is uniquely associated
with the most effective management of forest lands. In fact, underlying
property ownership regimes have been changing continuously in most
countries over long periods of time. Of particular importance is her assertion
that the increasingly influential neoliberal property rights school of analysis
over-emphasizes the virtues of property rights defined in terms of market
trading. Effective markets for land are often nonexistent or flawed.
Market-based approaches may create new risks to secure tenure, rather
than alleviate them, and may lead to unfair and inefficient allocation of natural
assets. Common property regimes provide some useful protection from those
market forces, and they are valued because they lessen the risk of alienation
of ownership by market forces.
Many of the most important values associated with the ownership and
stewardship of natural resources are nonmarket values, she notes. And
some community-based property regimes are more capable than individualistic
property rights regimes to capture the full set of values embodied in those
resources. The values associated with tenure security and its importance to
the alleviation of poverty in resource-dependent communities cannot be
resolved, it would seem, by expert analysis, but perhaps as Ellsworth writes,
only by each society through [its] own political means.
Michael E. Conroy
former Senior Program Officer
FORD FOUNDATION NEW YORK: JUNE 2003
References:
Boyce, James K. (2001). FromNatural
Resources to Natural Assets, NewSolutions,
Vol.11 (3), 266-278.
Boyce, James K., and Manuel Pastor (2001).
Building Natural Assets: NewStrategies for
Poverty Reduction and Environmental
Protection, Political Economy Research Institute
and the Center for Popular Economics, University
of Massachusetts Amherst. Available at
www.umass.edu/peri/.
Boyce, James K., and Barry G. Shelley (2003).
Natural Assets: Democratizing Environmental
Ownership, Washington: Island Press.
Ford Foundation (2002). Sustainable Solutions:
Building Assets for Empowerment and
Sustainable Development. NewYork. Available at
www.fordfound.org.
Oliver, Melvin L. (1995). Black Wealth / White
Wealth: A NewPerspective on Racial Inequality.
NewYork, NY: Routledge.
Sherraden, Michael (1991). Assets and the Poor.
Armonk, NY: M.E. Sharpe, Inc.
Market-based approaches may create new risks
to tenure security, rather than alleviate them,
and may lead to unfair and inefficient allocation
of natural assets.
A Place in the World
By Lynn Ellsworth
The nature of tenure security and what should be done about it
have long been debated in the overlapping worlds of academia and
international development. The arguments, concepts, and assump-
tions in these debates have influenced land policy around the world.
They continue to do so and are now being freshly applied to the case of
forests, where underlying ownership is often hotly disputed. This paper
provides an overview and analysis of the literature on tenure security,
paying special attention to arguments over what tenure security is and
how it is related to the goal of helping communities build assets and
improve their livelihoods especially communities living in and
around natural forests.
This literature review is a companion piece to Deeper Roots:
Strengthening Community Tenure Security and Community
Livelihoods, a paper based on case studies from India, Indonesia, Nepal,
Philippines, South Africa, Tanzania, Bolivia, Brazil, and Colombia.
1
In this paper we first lay out the history of western notions of
property rights giving special attention to natural forests. This history
is important because there we find the original core concepts and
arguments that still dominate theory and practice about tenure security.
We briefly describe and compare four academic traditions, each of
which has something to say about tenure security and livelihoods.
These traditions or schools are: Property Rights, Agrarian
Structure, Common Property, and Institutionalist. Each of these
schools of thought focuses on a different facet of tenure security and
in doing so has contributed to how property rights including those
related to forests are seen in the real world.
The Property Rights school underscores the value to an economy of
having tradable property titles. Its analytical attention is focused on
examining this value. The Agrarian Structure school draws our
attention to troubling equity outcomes of an unrestricted trade in
property titles. Someone of this tradition would urge us to consider
the values that a middle class of asset owners, protected from tenure
insecurity, bring to a democratic society. And in another analytical
tradition, those in the Common Property school argue for the
recognition and support of traditional, community-based property
systems, many of which still operate in the worlds remaining natural
forests. In that tradition, the commons is seen as a source of nontradable
livelihoods for the poor. Moreover, the commons is seen as a thing
that grants many people a place in the world. Finally, the
Institutionalist school would urge us to pay attention to how the
larger political economy is constantly reshaping property regimes
and then providing tenure security or not to those people who claim
a particular property right.
None of these traditions is in fundamental disagreement with the
others over the idea that various kinds of property or tenure rights
ought to be secure, although they do often disagree profoundly on other
points. What is important for this review is how they understand the
very idea of security as well as how each tradition finds a different
facet of security of tenure worthy of policy attention.
Acknowledgements This paper was produced by Forest Trends
at the invitation of the Ford Foundation. The author is grateful
for substantial contributions from Andy White. Helpful commentary
on earlier drafts was also received from Owen Lynch, Daniel Bromley,
John Bruce, and Augusta Molnar. Danile Perrot-Matre and Chetan
Agarwal also provided support for the case studies.
Definitions
Property: the Oxford English
Dictionary (OED) says property is a
condition of being owned by or belong-
ing to some person or persons, hence
the fact of owning a thing. Or, it can be
the right especially the exclusive
right to the possession, use or dispos-
al of anything. James Madison (cited
in Ketcham, 1990) in a key argument
added to this concept when he wrote:
property embraces everything to
which a man may attach a value and
have a right, and which leaves to
everyone else the like advantage
hence a man may be said to have
property in his rights. Madison was
arguing that one of the duties of
government is to protect not just the
movable property of its citizens
(as Locke had argued), but also their
other nonmarket values such as a
right to justice. This issue comes up
again in this paper in the
latter sections.
Property regime: Institutionalist
thinkers define a property regime
as a social relationship among three
parties. The three parties are the
person with a right of any kind,
the person who forbears from violating
that right, and a third party (usually
government or a court) who guaran-
tees the right and obligation to
forbear.
Commons, Right of
Common, Access rights:
The commons is the undivided land
belonging to the members of a local
community as a wholeland held in
joint occupation, not in the lords
domain which later came to be waste-
lands not already in the lords domain.
(OED). The OED also notes that there is
a use of the term specific to the legal
profession, being the right of common,
which refers to a use or access right
to another mans land, examples being
pasturing, collecting turf, fish or wood
for fire or repairs.
Common property: A scholarly
distinction that refers to those
commons that have managerial rules
that regulate use of the commons
(Bruce, 1998).
Tenure: The word has its origins in
the Latin word tenere meaning to hold
or grasp. The OED says tenure is the
action or fact of holding anything
material or nonmaterial. The OED also
allows for tenure to mean terms of
holding or title. The former is typically
employed in the academic literature.
In a recent review paper, Devlin (2001)
makes a useful distinction between
tenure and property rights. She notes
that when academic writers talk about
property rights they tend to mean
what William Blackstone did when he
said property rights refer to full and
despotic dominion over something,
including the right to trade, buy, sell,
mortgage, and use at will (Blackstone,
cited in Thompson, 1991). However,
when contemporary writers talk about
tenure rights, Devlin points out that
they are usually implicitly
referring to a subset of that despotic
dominion, which in most cases
means limited use or access rights
to a resource such as a forest, as well
as the duration of those rights over
time and across generations. This
paper follows Devlins lead on this.
Title: a legal right to the possession
of land or property; the evidence of
such right (OED).
Open-access resource:
a resource, the use of which is
unregulated and unmanaged such
that anyone may freely use it without
distinction or hindrance.
Public or State property:
property owned by any level
of government and distinct
from a commons.
Definitions of terms related to tenure have changed over time and continue to change. And usage varies widely among academic disciplines. Moreover,
legal usage is frequently at variance with dictionary definitions and popular use. This situation makes picking out a definition for some terms a diplomatic task.
Prior to and with the rise of the seigniorial systemin the
feudal era, much of Europe had vast tracts of dense forests inhabited by all
manner of bark-strippers, hunters, collectors of forest products, charcoal-burners,
blacksmiths, wood-ash dealers, bandits and religious hermits all living at the
margins of the communitys and lords powers. Forest use was intense and
unregulated (Bloch, p. 8), very much like an open-access resource. In fact, the
great forests of the early middle ages were not clearly under the reign of the
manorial system, being isolated from communal life (Bloch, p. 8). Both lord
and peasant also hunted and grazed cattle, pigs, and horses in the forests, so
much so that a common unit of measurement of a forest was how many pigs it
might sustain (Bloch, p. 7). From 1050 onwards, and intensifying in the late 12th
to the end of the 13th century, enterprising lords throughout Europe initiated a
period of large-scale forest clearances (assarts). New manors and villages were
established relentlessly in what had once been forest and marsh. Forests soon
came to be islands in a sea of agrarian land use. Many villages opposed forest
clearances accustomed as they were to benefit from the grazing or the free
enjoyment of the forests wealth. So it was often necessary to sue them [the
peasants], or buy them off, especially where they had the support of some local
lord who shared their interest in forest privileges. The archives are full of records
relating to litigation of this kind. (Bloch, p. 18). Some of those disputes were
solved with violence against the peasantry. Villages opposing a forest clearance
could be and were razed.
In the specific case of England, there is some evidence that prior to the
Norman conquest in 1066, local lords tried to claim hunting rights in some
forests. There was even an office of forest warden. But as a conqueror, William
took these minor Anglo-Saxon traditions to an entirely new level of property
rights for the crown. By right of conquest, he declared about a third of England
as royal forest for his use. It was called New Forest. His seizure meant that he
alone could have the income from all forest products in New Forest. It is useful
to recall that the English forests were inhabited with villages as well as the usual
forest inhabitants noted above. In fact, only about a third of the land in question
was actually forested in the popular sense of the term. Many areas of it might be
better described as thinly forested grazing lands and heath. Williams act created
a howl of popular outrage and generated legends such as Robin Hood and The
Tale of Gamelyn. The seizure was thought unjust: rich men bemoaned it and
poor men shuddered at it (Anglo-Saxon Chronicles cited in Rampey, 2001).
Moreover, William created an entirely new Forest Law outside the common
law that prohibited the locals from cultivating land or using the forests products.
The Forest Law was administered by a frequently corrupt army of forest
officials answerable only to the king (Rampey, 2001). Their role was to extract
fines and collect taxes, providing a perpetual source of revenue for the Crown.
Over time, commoners wrested back from their kings various rights of common
to use New Forest products such as the common of mast, marl, pasture, and
turbary. Custom, as opposed to right of common also allowed commoners
to cut fern and gorse and raise bees in New Forest. But to this day, New Forest
remains Crown property (Rampey, 2001; Cooper, 2001).
Feudal Forests and Britains New Forest of William the Conqueror
Custom, as opposed to right
of common, also allowed
commoners to cut fern and gorse
and raise bees in New Forest.
Custom, as opposed to right
of common, also allowed
commoners to cut fern and gorse
and raise bees in New Forest.
History of the Concept of Tenure Security
Security of tenure is an idea that is embedded in grand philosophical,
political and economic theories and beliefs about how our contemporary
society came to be. Because these theories and beliefs concern the
nature of government, justice, and economic systems, they are
inherently controversial. So a bit of history is necessary to help us gain
a perspective above the fray of argument. In this section, we see that
most of the western concepts related to tenure security originated in
an historical discussion about how Britain, Europe, and Russia were
transformed away from feudalism. Property rights and tenure security
played a role in that transformation, although the nature of their
role remains contested.
Much of feudal Europe was characterized by variations on the
manor or seigniorial system of organizing agrarian life. It featured a set
of mutual obligations and duties between lord and the various classes
of nonlord.
1
Although enlightenment philosophers liked to attack
feudalism from a political rights point of view, not all the mutual duties
and obligations were exploitative.
The manorial system arose after the fall of the Roman Empire in a
lengthy melding of local and Roman custom with Germanic tribal
traditions at a time when people felt a great need for physical security.
2
The manorial system solved both a security and an economic problem
of organization so well, it spread with the Frankish conquests into
northern Italy, Spain, and later into the Slavic territories. The
Normans took it into England in 1066. And from England, feudalism
spread to Scotland and to Ireland [CDE/EB].
In the manor, land was not traded to outsiders, but held by the lord
of the manor, who might be a king, an ecclesiastic, a baron, or more
often, a much lesser noble. The peasants resident in a manor cultivated
land in one of many local variations of the open-field system. Land was
divided into strips and planted under collective management rules.
Each peasant might have three strips: one for winter crops, one for
summer crops, and a third for fallow. Land was sometimes traded
among members of a manor, and in some places [as in parts of Russia],
land was redistributed every few years using demographic criteria
[White 1996, Bloch 1966].
The manors territory had several parts, each under different man-
agement and ruled by different ideas about property. For example,
the demesne was the land of the lord for his own immediate use. The
arable bits of it were often mixed in pell-mell (with shifting boundaries)
with the arable land reserved for the peasantry. There was also
meadowland (typically also held in common for additional pasturing
of animals) woodland, and waste. The local woodlands and fishponds
usually belonged to the lord, although there was again significant
variation on this. Wastes were typically unused bits of land such as
swamps, gullies, and distant forest. If fought over, they were property of
the lord by virtue of his power, but this was not everywhere the case.
Wastes were usually managed as an open-access resource and to some
observers they got lumped in conceptually with the commons. Last,
fallow land used for pasture could also be referred to as the common
[Bloch, 1966].
The peasant typically owed labor service, a share of the crop, and
military service to his lord. In turn, the lord owed the peasant military
and legal protection. Most important for this paper, the lord could not
take away the land the principal means of livelihood from the peasant.
Moreover, in times of poor harvest important lords were to use their
coin and credit to prevent starvation (CDE/EB). In addition, there
was often a very large set of locally varied and sometimes codified use
rights to the different parts of a manors territory that meant peasants
could and did supplement their livelihoods by collecting timber and
other resources form the lords forests, the commons, and the wastes.
In some places, villages were even incorporated and had by laws
under which the reciprocal rights and duties of lord and peasant were
laid out. Land transactions, for example, might take place in a court of
tradition rather than in the lords courts as long as outsiders to the
manor were not involved. It is also important that unfree peasants
could convert their in-kind service obligations to the lord for fixed
rents. Eventually, they could buy their freedom as well. The manor also
regulated exchange with markets, each manor acting (in a very rough
analogy) like a shareholding corporation, producing various products,
some of which were consumed locally, some of which were exchanged.
This deal between lord and peasant gave each person a geographic
place in the world that could not easily be denied. It was a place that
could be passed on to children, although the land itself was not very
tradable. This deal granted a secure place in the world. It marked the
early meaning of security of tenure. For a feudal peasant, it meant
that the means of life a livelihood in a specific place in the world
would be granted him in exchange for predictable service to a specific
person. Not all peasants were unhappy with that particular feudal
arrangement (e.g., in Vende in France prior to the French Revolution).
After the 12th century the feudal system and the deal for a place
in the world slowly began to fall apart. In Britain, for example, the
manorial and open-field systems were incrementally undermined by
both political and market forces from the tenth century onward. Then,
in the late 18th century in the name of productive efficiency, those
forces culminated in violent physical and legal attacks by that countrys
powerful class upon the weak in the remnant commonages and open
fields. That period featured the enclosing of unfenced open fields and
commons. This created immense levels of injustice and suffering. A
powerless, unenfranchised peasantry lost its last bit of commonages and
many of its economic rights of common as England entered the late
mercantile and capitalist eras (CDE/EB, 2001]. The peasants lost their
place in the world. And they wandered. Many ended up working in
cities or emigrating. Debate among historians on the causes and benefits
of these enclosures is by no means resolved.
The nature of the falling apart of the feudal system and the exact
how of it are still debated by historians, especially when it comes to
figuring out the balance of market and nonmarket forces that were
brought to bear to untie people from their feudal rights and place in
the world. Many scholars now focus on how tenure rights to land
moved from being secure and uncontested to insecure and contested.
3
The idea was that things that were once nonmarket and not tradable
(your right to be in a geographic place) became tradable in marketplaces,
In feudal Europe peasants could
supplement their livelihoods by collecting
timber from the lords forests.
creating new winners and losers in the larger society. Some scholars
study how things that could not be transformed into marketable
commodities were simply discarded by society, often after lengthy
political battles and economic processes. Some scholars even say that
the creation of tradable property rights in fenced plots of land (which
may or may not include forested land) was representative of a critical
sea change that took place in the industrializing worlds notion of
property rights. And a few people even argue that tradable title in land
was the single most important change that allowed capitalism to
flourish as it did [North and Thomas, 1977]. That is a bit extreme,
and it is important to note that this argument has usually been made
without reference to accepted historical fact. But since the argument
gets a lot of popular press, it is important to note that many historians
and sociologists say that granting property rights such an elevated
status in history grossly oversimplifies the record and neglects the
role of a dozen other important factors from technology to the use
of force to the very deliberate efforts of those in power to create,
structure, and nurture into existence the market economy we know
today [Polanyi, 1944].
The rise of the environmental movement in Europe and the
United States has added a new dimension to this debate that is espe-
cially relevant in this paper. While some of natures values can be
partly commodified and traded using Western-style individual property
rights regimes such as carbon or watershed services many values
such as a place in the world or landscape beauty cannot be so
traded. Nor can religious or cultural values associated with a particular
place. This raises a question: can people have rights in values that
arent traded or cant be completely traded? James Madison (see defi-
nitions of property on page 5) said we do have rights to such values
justice for example. And environmentalists have inspired themselves
from him. They argue that nonmarketable and intergenerational values
originating in nature are real and need to be protected. They say that
conventional market-based solutions to preserving these values
while sometimes useful will not preserve enough of them. They
believe that in order to protect more of those values, ownership of some
of natures nonmarketable values must accrue to government or to
local communities, to be held in trust for the future.
These debates are relevant outside the world of historians of Europe
and that of the environmental community. In many developing
countries and in the formerly communist countries, all kinds of widely
varying community property rights systems can still be found. Many
survived colonial and communist attempts to remove them as well as
the steady pressure of market and demographic pressures.
4
Some
scholars insist that these community-based property regimes are an
obstacle to market development and productive efficiency. For them,
the job of developers in those countries is to create a full Western-style
set of property rights in all things, complete with land administration
systems, titles, and deed registries. While nobody disputes the power of
tradable title property regimes to unleash entrepreneurial energy, we
As England entered the late mercantile and
capitalist eras, a powerless, unenfranchised
peasantry lost its last bit of commonages and
many of its economic rights of common.
The peasants lost their place in the world.
shall see in this paper that there are good arguments for developing
new forms of modern property rights that are gentler to and more
inclusive of the worlds remaining community-based property rights
systems, systems which after all provide many nonmarket advantages
to those who are using them [Polanyi, 1944; Moore, 1944].
At the heart of all of these historical views and debates about
property rights is a near-universal notion that a good property rights
regime ought to grant people something called security of tenure.
We have already seen that a feudal notion of what that phrase means is
a place in the world. But today, it turns out that there is considerable
variation among contemporary scholars about what security of
tenure really means in the nonfeudal world. There is argument
about who should benefit from tenure security, what its virtues are to
a society, how to achieve it in the policy arena, and the role it plays
in relating communities to markets and livelihoods. The next section
reviews those debates, roughly classifying the great many academic
ideas on the subject into four traditions or schools of thought based
on the aspect of security of tenure that is thought to be important for
policy making.
Security of Tenure and the Property Rights School
CONCEPTS AND ARGUMENTS
The Property Rights School is an old one in academia.
5
When
members of this school talk about property rights they mean individual,
private, tradable titles in whatever resource is at hand. They believe
that such titles are an indispensable precondition to economic growth
and development and the cause of the prosperity of western countries.
Moreover, property systems anchored in individual, tradable titles are
(in their view) the best option around for managing property of all
kinds because they encourage efficiency in producing things.
6
We will
see later that the idea of efficiency itself is contested by many scholars
with a different analytical vision of how the world works.
Members of the Property Rights school are often evolutionists who
think that as soon as a population grows, a resource will get scarce and
then everyone will spontaneously agree to create a private property
system that honors individualized tradable title.
7
At the same time,
and in a bit of contradiction to the evolutionary character of much of
their thinking, members of this school also say that governments in
developing countries should do everything possible to hasten, assist,
and nurture the creation of tradable private property rights in
resources.
8
Moreover, whatever cant be individualized in their view
should become property of the State.
Property Rights people cite a famous story of psychological and
philosophical virtue to recruit people into their school, a story based in
the political economy of Jeremy Bentham and David Ricardo.
9
To make
a complex story short, it goes as follows: if everything is marked up with
an individual title, the rare combination of a marketplace in proximity
to security of tenure over things will spontaneously unleash pent-up
entrepreneurial energy (or greed to use Benthams word). Moreover, if
everyone freely trades things based on individual comparative
advantage, all will end up better off than they were before trading. And
last but not least, the system of trading has the desirable and unex-
pected result that everyone will find a place in the world that leads to
his or her own most productive, efficient use to society at large.
Property Rights scholars of this school go even further to say that
even if two people make a trade and one loses out on the deal, the
world is still a better place provided the winner has the potential
to compensate the loser. This notion is called Pareto Optimality. It
should also be noted that winners in this analytical framework are
In most countries with an endowment of the worlds remaining
natural forests, the government claims most or all the forests as publicly
owned. In many cases they are ignoring local claims to the forest. Forests in
fact are subject to multiple, overlapping claims to their resources. Some of the
people making ownership claims are not even local residents. This complex
situation means that communities living in and around natural forests often
have no security of tenure over the asset they may even think of as their own.
This creates social justice problems in many parts of the world, not just for
indigenous and traditional forest peoples, but also for many rural communities
who are outraged to realize that their forest commons has been claimed by
the government.
Why is state ownership so common? The first explanation is simply the
bald fact that state property in many countries is a relic of monarchic, colonial,
or communist times. And, forest management was often the last thing to get
localized during the democratic revolutions of Europe. Hence it got exported
during the colonial period. In developing countries the era of nationalism and the
move to independence often did not change this colonial heritage in forest
property rights.
A second reason often cited for state ownership of forests is that of market
failure. This merits some explanation. Many economists adhere to the notion
that when goods are not completely privatized and put into individual tradable
title, the market can underproduce the good. Forests, for example, filter water,
prevent erosion, provide landscape beauty, and conserve biodiversity. Unless
these things or functions can be commoditized, priced, and actively traded,
underproduction will result, and government ought to step in.
Supporters of this theory are also convinced that government is the sole
entity capable of providing these environmental services. The implication is
that the rights of communities living in and around forests can be disregarded
in the broader public interest. Some people of this view also argue that com-
munities cannot themselves produce public good values so government must
be the forest manager.
There are practical problems with these market failure arguments for state
ownership of forests. The first problem is that in the real world (as opposed to
the world of scholarly theorizing), government ownership doesnt really solve
the problem of underproduction of nontimber forest values such as biodiversity
or carbon. In fact, the track record of governments in managing natural forests
for values other than timber is lamentable. Those not familiar with forestry
should understand that governments everywhere typically contract out
forests to timber companies in a system of notoriously ill-managed
concession contracts. These contracts focus almost entirely on timber
extraction. Many people would argue that government ownership of forests
in such cases is really about who gets to profit from the timber, and not about
addressing market failure or providing more environmental services for the
broad public interest.
The second practical problem with the market failure justification for state
ownership is that it ignores the social justice claims of forest-dependent
communities. This used to be acceptable. But in a democratizing world,
community claims to forest ownership are increasingly seen as legitimate
however troubling they may be because of the ethnic character of the claim or
the lack of interest communities sometimes show in environmental stewardship.
Important events are happening around the world with the rise of property
rights claims over their forests by communities: their rights are in fact being
recognized, although with significant limits.
Tenure Security and the Case of Natural Forests
thought to be more energetic and efficient than losers, because the
trading game is supposed to reward them. In a famous variation on this
story, some Property Rights people argue that when we dont attach
tradable title to something, we will all race each other to grab it before
the other one gets it [Hardin, 1968]. They say that in the ensuing
free-for-all we will totally destroy the actual resource. Property Rights
theorists think the only way we can save ourselves from such tragedy
is to set up private property and individualized tradable title. This was
once called (but is no longer) the tragedy of the commons hypothesis.
In sum, the Property Rights story has many philosophical and political
assumptions that are important to recognize.
10
These are:
Trading is always voluntary and never happens at sword point
(as opposed to the case of the New Forest in the box on page 6).
The ultimate goal of society and the property rights system
is to produce ever more commodities.
Uneven distribution of commodities among people doesnt
matter, as long as those who win through the trading game have
the potential to compensate the losers, although they dont
actually have to do so for the trading game to be the best one
for a society.
Banks already exist and have a rule that they will use the title
11
to the land only as collateral for credit. No other system
of collateral or credit is possible or even imagined in this story.
Trading costs are the same for everyone. Everyone also has
perfect information about everything, and no deals are made
through lying, cheating, violence, or fraud.
Laziness and inefficiency should be punished by the tradable
title system and efficiency rewarded by it.
EVIDENCE
The Property Rights story may appear logical enough in the U.S. and
in Europe, where it took 1,000 years of history to embed individualized
tradable title of property into our legal system. But outside those
countries, the belief that it has produced optimal outcomes appears
wrong. This is because there are so many community-based property
regimes with some vitality left in them and plenty of people who still
want them to exist. For this reason, critics of the Property Rights
school ask if the theory has any empirical basis. In trying to respond
to this challenge, Property Rights theorists have had to vastly over-
simplify matters in order to measure particular aspects of their theory.
Hypotheses they try to measure are usually statements like:
tradable titles in land create more output.
tenure security means more labor and loan activity
There are still many community-
based property regimes with
some vitality left in them.
(and hence by proxy more output).
tradable titles mean everyone is better off.
All of these equations are hard to support in a definitive, once-and-
for-all way using real-world data, so theorists tend to rely on vague
correlations that are not inconsistent with their original story.
In one influential review paper of the evidence for the Property
Rights story, the author [Deininger, 1999] cites a wide range of data from
different countries in the world (see the box on page 15) to conclude:
there is broad agreement that secure individual land rights will increase
incentives to undertake productivity-enhancing land-related invest-
ments and that establishment of such rights would constitute a
clear Pareto improvement [Deininger, 1999, p. 35].
The claim to broad agreement on this point may be overreaching.
For some, the empirical work to date has simply been difficult, flawed,
or inconclusive (see Place and Otsuka, forthcoming). Others interpret
the data differently. For example, one review of the empirical evidence
on tenure at the FAO (by someone who is not a member of the
Property Rights school) summarized the problems with the data on
tenure security by concluding: the putative relationship between
security provided by a modern land title and capital investment in
land has simply not been established with sufficient precision to allow
any explanatory value confronted with conflicting evidence
[Riddell, 2000 p. 6].
And another survey of the South Asian evidence about property
rights concluded that: strong evidence linking [tradable property]
rights to production and investment is scarce for South Asia despite
significant regional variation within the subcontinent [Faruqee and
Carey, 1997 p. 1].
A related problem in the empirical literature is the tendency to
confuse correlations with causality and statistical significance with
real-world significance.
12
And as Platteau [2000] points out, no matter
what the shaky data actually says about the individualized private
title is best thesis, it can almost never support conclusive policy
pathways, given the institutional complexities of so many countries
whose property regimes outsiders so want to change.
13
The fact is that the empirical evidence for the virtues and
mechanics of the founding story of the Property Rights school is
mixed for most parts of the world that dont share the legal history of
Europe and the United States. Some data support the story. Some dont.
And contradictory data can be found in the same place in different
times. For example, in Kenya a tradable title system looked positive
when it was first instituted, but in the long run, it didnt [see Bruce
et al. 1994]. Some empirical studies also refer to data that can support
multiple stories and theories [e.g., the case of Gavian and Fafchamps,
1996 or Besley, 1995].
On the tragedy of the commons hypothesis, the empirical work is
more straightforward. There, scholars have been obliged to make a
distinction between managed commons and open-access resources. It
turns out that the prediction of tragedy may be reasonably accurate only
for open-access resources, not for managed commons. The discussion of
Evidence
Some Property Rights people argue that when
we dont attach tradable title to a resource,
we will all race each other to grab it before
the other one gets it.
the work of the Common Property school elsewhere in this paper
elaborates on this point.
POLICY VIEWS
It is important to see that tenure security is desirable to members of
the Property Rights school because it is a means to the larger goal of
reallocating assets so as to reward the efficient and penalize the inefficient.
From a policy point of view, the Property Rights school reduces security
of tenure to the idea of a paper title that can be traded or mortgaged
in densely operating land markets. And the policy implication is that
wed all do best by setting up privatized, individualized titling systems
for whatever resource is at hand. Bringing that argument to forests,
Property Rights theorists think that forests and land are meant to be
traded into their most efficient use rather than serve as places where
nonmarket values are produced. In fact, nonmarket values of land and
forests have no place in this worldview: they are invisible or relegated
to the nebulous class of things called externalities, all of which can
be sacrificed for the greater good of productive efficiency. Thus, forests
are assets as long as their underlying values can be traded. Nontraded
values of forests are not an asset class to members of this school.
Security of Tenure in the Agrarian Structure School
The Agrarian Structure school is a useful way to categorize an eclectic
group of economic theorists, development policy analysts, and social
justice activists who agree with most of the story that the Property
Rights people tell, but who part ways on the idea that tradable title
leads to a universal or optimal result, either from the point of view of
productivity or of social values.
14
Researchers and activists working
within this tradition see benefits for society at large in the existence of
a middle class of small farmers, artisans, or business people, especially
when the majority of its citizens are rural and engaged in farm work.
Followers of this school look at property rights and ask: what kind of
agrarian structure do we want to see and what kind of tenure security
can we arrange to favor that structure? Note that Agrarian Structure
here refers to the distribution of farm size (or other resource-based
assets like forests or commons) among farmers.
15
In this view, tradable title can in some circumstances protect
striving small farmers from predatory governments and corporations.
This is because title can be fought for with a piece of paper in courts
of law. Nonetheless, those of this tradition argue that tradable title is
not automatically the small guys best friend: it can provide as much
The Property Rights school tends
to overlook the nontradable
values of forests.
insecurity of tenure as security. This is because tradable title easily
exposes the small guy to market forces without subsidy, aid, or legal
protection from natural disaster. For example, distress or forced sales
of farms in times of family crisis or bad weather can send such otherwise
efficient farmers out into the streets without a home. Agrarian
Structure analysts say that such sales have nothing to do with effi-
ciency, and that when it comes to land (or forests), this kind of trading
in general will not necessarily lead to the most efficient people winning,
especially since luck and deviousness often play a big role in cementing
land sales.
Members of this school also point to the many places in the world
where tradable title led to perverse accumulation of land by the wealthy
few: a corporation, a hacienda owner, or an absentee landlord. This
is called costly inequality [Carter, 2000]. It is so named because if
you accept a highly unequal agrarian order, you lose out on all the
efficiency that a middle class of farmers generates.
This group of scholars sees security of tenure as something
beyond title. It is more the political will to put into place the means
to assure the striving poor and middle class community members
some degree of organized protection from unfettered market forces.
To shore up their argument, they point to data that show that
wealthy landowners tend to be less efficient per hectare or per person
than small farmers.
A good number of scholars with a Jeffersonian frame of mind also
fit within this Agrarian Structure tradition. To them, the costs of
inequality are not just about losses in efficiency. They subscribe to a
philosophical view that ownership of resources for communities has
plenty of noneconomic virtues that we need as a society. These people
cite studies that show how United States homeowners tend to be more
civically involved, and that their children are less likely to drop out of
Is There Empirical Evidence
for the Theory of the Property Rights School?
The Property Rights school does have some data in developing
countries to back up its views, but they are hardly definitive. Much of these
data were recently reviewed by a supporter of that school (Deininger 1999) and
merit some attention. The author of the review cites as evidence for the virtues
of tradable title the massive productivity leaps in China that took place recently
after reforms allowed for individual production on collective land. That link
between an individualized title system and economic virtue is not universally
held. For example, one scholar of China points out that equally impressive gains
in productivity occurred when China first went communist and collectivized
its assets, a fact suggesting that it might be the size and locally perceived
desirability of the institutional change rather than the type of institutional
change that influences such productivity leaps (Sicular, 2000).
The same review also cites a study from a region in Ghana where faint
evidence exists for part of the Property Rights story. That study featured three
sites, but only one clearly supported the notion that secure tenure increases
labor investments in agriculture, while many African studies not referenced
support an opposite viewpoint. Other cases cited to support elements
of the Property Rights theory can be found in the Amazon, Niger, Paraguay,
and in Thailand. Yet, a closer look at these data shows that the Property
Rights people may not be on solid ground, except perhaps for their research
in Thailand. For example, in the Niger study, it turns out that the data there
merely suggested that tenure security did somehow matter to farmers, a point
nobody would contest (Gavian and Fafchamps, 1996). They do not, however,
prove the underlying story of the Property Rights school. And in Paraguay, all
the researcher found was that some farmers got more credit if they had title,
but then again, credit access was unevenly distributed (Carter and Olinto,
1996), which was the main point of that bit of research.
school or be arrested [Rossi and Weber, 1995]. This strand of thinking
about asset ownership as the basis of democracy goes back to Thomas
Jefferson and to an earlier British political philosophy that owning
land gave you a stake in the country or a place in the world that
the landless could not understand.
Some legal scholars of this school would go further to suggest that
widely diffused individual property rights insulate political minorities
from oppression by the rich and powerful and from the whims of leg-
islatures and government agencies that too often serve only the
needs of the powerful [McEvoy, 1998 in Jacobs, 1998, and citing
Reich, 1964 and Michelman 1981].
16
POLICY VIEWS
In the international arena, advocates of the Agrarian Structure view
criticize World Bank-promoted market-assisted land reforms, saying
such reforms are too slow and fail at social justice goals. People working
in the Agrarian Structure school advocate quicker and more compre-
hensive reforms [de Janvry et al., 2001]. Yet, given the great many
implementation failures of otherwise well-intentioned land reforms in
Latin America and in parts of Asia, this group now debates how to do
reform right in places like Zimbabwe, South Africa and Brazil where
equalizing land reform remains a major social and political problem.
Scholars here admit to a good body of problematic evidence that says
that land reforms are often hard to gain political support for and end
up with unpredictable, perverse outcomes that nobody wanted. This
is because reforms are time consuming, difficult to do fairly, and easily
undermined by incompetence, inefficiency, corruption, political
conservativism, not to mention the many legal ways that the powerful
have to halt the erosion of their power.
17
Nonetheless, in the policy arena members of the Agrarian
Structure school continue to advocate land reform.
18
They also support
limits on the tradability of titles or on the actual nature of property
rights (as in Nepals land reforms of the early 1960s). These limits are
so that costly inequality doesnt recreate itself over time as the wrong
people buy and sell title. Note that these trading limits can be about
use, stewardship of the underlying resource, or size of holdings.
Agrarian Structure people also suggest that governments should provide
an appropriate mix of subsidies and credit systems to support or favor
the emergence of the middle resource owner.
19
In this analytical vision, markets are recognized as valuable things
which add value but also things that punish and reward unfairly. Markets
are sources of tenure insecurity. The market makes for no guarantee that
people can hang on to their assets and livelihood and at the same time
supply the world with something other than their own free wage
labor (which it may not even want). Hence, this analytical tradition
advocates control and regulation of markets to benefit asset ownership
among a specific class of people. Regulation is needed to provide tenure
security, not just paper titles.
Tenure Security and Common Property
A third academic and activist school has taken up the cause of a differ-
ent type of property relationship, that of the commons. We can call this
the Common Property school and by it mean that group of scholars
influenced by the research emerging from members of the International
Association for the Study of Common Property.
Members of this school do not argue with the Property Rights
theorists on the notion that tradable title can catalyze entrepreneurial
energy or with Jeffersonian scholars on the dangers to a democracy of
over-concentrated property ownership. Rather, Common Property
advocates object to the crude and simplistic portrayal of nonindi-
vidualized common resources as things that are inevitably destroyed
unless they are controlled by a system of individualized, tradable
property titles.
20
They say it is essential to make a distinction between
unmanaged, open-access resources and managed common property.
This group of scholars points out that the common resources of the
world provide emergency and back-up livelihoods for the poor and
hence need not all be privatized, lest like in England, the poor who
depend on them end up without a place in the world, strangers in
their own land [Thompson, 1991, p. 184]. And we are warned not
to demonize the poor who depend on commons, as happened in
England. Remember that there, the poor who survived in the world
by virtue of their access to the commons had to be deemed vile and
lazy by the powerful, so they could be uprooted and turned into
rolling stones, with no direction home. And the poor had no say
in the matter, since they could not vote and were not the policymakers
and legislators of the day. As one famous ideologue of enclosing the
commons (Vancouver) said: The appropriation of forests would
be the means of producing a number of useful hands for agricultural
employment by gradually cutting up and annihilating that nest and
conservatory of sloth, idleness, and misery, which is uniformly to be
witnessed in the vicinity of all commons, wastelands, and forest.
[Vancouver, cited in Thompson [1991].
And indeed, Vancouver got his way without much trouble. The
ancient common lands of England, Scotland and Wales vanished, and
in the case of Scotland, the forests vanished with them.
Proponents of the commons have used both rational choice logic
models and empirical studies to make their case.
21
Their key arguments
are listed in the box on page 19. Common Property scholars see
virtues in common property that the Property Rights theorists dont.
22
These are:
The commons supports a physical and cultural space that
strengthens social linkages among people across time
something that marketplace transactions alone cannot do.
A commons can be the more efficient way to manage a
resource, given physical attributes that can inhibit the use
of full tradable title.
A commons may be the only fair, practical or humane way
to manage some resources, in the sense that leaving a common
property regime unchanged often comes with fewer political
and economic negatives than does changing it to a system
of tradable individual titles.
A commons often provides access to survival resources
(mushrooms, dead wood, drought-tolerant plants, game, etc)
for otherwise unpropertied people in search of a livelihood
when other means have failed.
The commons gives people a place in the world they might
not otherwise have and thus gives them some small measure
Tenure Security and Common Property
The poor who survived in the world by virtue
of their access to the commons had to be deemed
vile and lazy by the powerful, so they could
be uprooted and turned into rolling stones,
with no direction home.
of personal choice and flexibility in fixing their fate and in
launching themselves into the wider world. The people affected
are very often the poor and the marginalized, the very people
whom organizations of economic development aim to help.
Common property regimes tend to allocate many resources
among many stakeholders under local concepts of fairness,
using a combination of power, history, custom, and other
non-market mechanisms [Swallow, 1997 and 2000]. For example,
a forest even though it is worth a lot in timber may be
allocated to the production of fallow, mushrooms, and
spring water because the rights and needs of nontimber users
are considered as important as those who would cut the timber
and sell it. A local society that does this is weighing the
value of the things inside the commons differently from
the output-oriented and profit-maximizing society of the
Property Rights world.
Common property advocates agree with Property Rights people
that security of tenure is important. But they argue fiercely that tradable,
individualized title is hardly needed to get most of the benefits
attributed to tradable title systems. Under this view, membership in a
group that has a secure claim is an equally viable way of obtaining
tenure security. They also point out that title to land is not the only
thing that works as collateral, as informal lending markets worldwide
show and as successes like Bangladeshs Grameen Bank illustrate. The
fact is that in many common property regimes in the world individuals
have invested in improvements even though they didnt have tradable
title to their resource.
EVIDENCE AND POLICY VIEWS
Critics of the commons ask: how resilient are common property sys-
tems in the face of market forces and population growth? And how
easy is it to come up with robust management rules for the underlying
natural resource? If such regimes are not resilient, then Common
Property advocates might well be accused of being just as utopian as
the Property Rights school. Unfortunately the data on the robustness
of the common property regimes in the world can be used to support
many sides of the question. In some areas, the commons has been
under political attack and demographic pressure, but the commons
survives. In others, a commons didnt survive at all, or it changed over
time to adapt to new circumstances. In yet other places, entirely new
common property rules have been built.
23
For example, in Quintana
Roo, Mexico, [Bray, 2000] a commons is being rebuilt successfully,
The Agrarian Structure school
generally supports land
reform, but admits it can lead
to perverse outcomes.
while in the case of the rubber tappers groups in Rondnia, Brazil,
success of a new commons is not so clear [Rosendo, 2000].
Perplexed by the range of outcomes in managing any given com-
mons, one group sympathetic to the commons has tried to find ways
to predict what kind of property regime is best for what resource and
when. Scholars interested in making such determinations try to create
predictor variables, also referred to as design principles,
24
with the
intention of giving people prescriptive policy advice on how to create
a commons. These variables characterize the resource and the group
trying to manage it. For example, divisibility is supposed important for
the resource while group size and heterogeneity are supposed to be
crucial design variables for the managing group.
This particular academic project has so far met with mixed results.
On the one hand it allows better and more precise description of
specific commons situations. On the other, it appears that there are
plenty of commons that have turned out all right in defiance of the
design principles and predictor variables. This has led some to suggest
that the design principles are not very useful [Stein, 2001].
A compromise view is that the design principles are just ways to
reckon the forces for and against you when your agenda is either to
create or revive a specific common property regime. If you have a
lot of the principles on your side, your chances of winning the battle
and setting up something sustainable are good. But if you dont, it
still doesnt mean you cant win. Its just that the battle may be
tough and long.
Common Property advocates point out that imposing individualized
tradable title systems can make matters worse in terms of efficiency and
equity, especially where there is communal management of a resource
already in place. They urge government to find ways to support these
property systems. For example, some are actively seeking legislation to
Key Arguments
of the Common Property Advocates
a) There are more property rights choices in the world than those described by
the Property Rights school, from both a theoretical and an empirical point of
view. In fact the real world harbors things that might loosely be classified as
private property, state property, common property, or open-access resources,
as well as property that combines characteristics of these types of property.
b) A resource that has no owners and no rules about its management should
be considered an open-access resource. Society can decide to leave some
resources as open-access if it wants.
c) A commons is often held under customary rights with historical claims,
but a commons can also be created from scratch. Many can be found in
urban areas. They are by no means archaic.
d) Common property has a history, logic, and utility that makes it valuable
today, even to urban societies.
e) The physical characteristics of some resources (lakes, watersheds, oceans,
rivers, etc.) can lend themselves to a common property ownership,
although this turns out to be highly variable in the real world. What is a
commons in one place can be private elsewhere, and what is state-owned
in one place can be open-access elsewhere, and so on.
f) Some commons are managed such that the underlying physical resource
is sustained across generations, although not invariably so.
g) Individual and state title to a resource has very often led to degradation
of the resource or to hoarding of the resource. Efficient outcomes are
not guaranteed by individual or state title. This means that such types
of property regimes are not inherently superior to a commons in terms
of the underlying sustainability of the resource.
support common property regimes and to recognize the rights of
communities rather than individuals to own the forest they use and
manage.
25
Common Property advocates also criticize the Property Rights
theorists for attempts to dismember commons around the world, and
they question the lack of the same supporting infrastructure (policies,
courts, laws, credit, technical assistance) that is usually granted to
defending individually held private property [Bromley, 1989 and
2000]. And instead of dismembering a commons, some members of
this group urge that property that is now in public or government
hands be passed back to communities where it can be managed as
newly created local commons.
26
In sum, the Common Property framework emphasizes that the
commons provides poorer members of a community with last-resort
livelihoods as well as security of tenure in the form of a place in the
world. The unique contribution of this school to the security of
tenure discussion is that security is not necessarily achieved only
through formal titling systems, but can be amply granted within the
many community-based property regimes that still exist throughout
the world.
Institutionalists
The Institutionalist school features a multidisciplinary method of
analysis that looks under the hood of assumptions and definitions
other schools take for granted. In assessing resources and property
regimes, one author explains the Institutionalist approach as follows:
An alternative perspective starts from the politics of resource
access and control among diverse social actors, and regards processes
of environmental change as the outcome of negotiation or contesta-
tion between social actors who may have very different priorities in
natural resource use and management. [Mearns, 2001, p.1]
Common Property advocates may share that view, and
Institutionalists often sympathize with Common Property ideas. What
separates the Institutionalists from the other schools is a research
agenda that pays more attention to how society decides that something
is either commons, state property, private property, open-access
resource or some combination of the four property types.
In another key difference, Institutionalists point out (persuasively)
that no one type of property is either ideal, inevitable, best, most effi-
cient, or intrinsically linked to the physical nature of the group, culture,
or resource. They also argue that political power and the distribution of
resource endowments at any point in time is more important than prop-
erty type in determining who gets security of tenure and who doesnt.
27
To Institutionalists, property regimes are constantly evolving to
reflect the endless negotiations and adjustments of a society whose
values change over time, as does the relative power of different
groups in society.
28
Of course the state of markets matters too, and
Institutionalists delight in seeing how changing economic situations
affect machinations over property rights. They observe that previ-
ously uninteresting resources can suddenly become valuable due to
changing technologies and market conditions, thus leading to all
kinds of claim-making over who owns it. As to predicting outcomes
of all that contestation, Institutionalists say that an algebraic theory
cant predict it: human creativity as well as luck, the weather, and
warfare will all matter.
29
Institutionalists also see property rights as a social relationship
among three parties (see definitions on page 5). In their view, many
variables affect property regimes: historical power, demographics,
culture, the organization of society, the associated value system, relative
prices, and the legal regime. All of these interact to explain how the
underlying resource (forests, land, commodities) gets managed at any
particular time.
One of the members of the school gave the following summary as
an Institutionalist take on property and tenure:
Property regimes after all are human artifacts reflecting instru-
mental origins they take on their special character by virtue of col-
lective perceptions regarding what is scarce (and hence possibly worth
protecting with rights) and what is valuable (and hence certainly worth
protecting with rights). Property is a social instrument and particular
property regimes are chosen for particular purposes New institu-
tional arrangements are continually established to define the property
regimes over land and related natural resources whether the regime be
one we would call state property, private individual property, or one of
common property. These institutional arrangements locate one indi-
vidual vis--vis others both within a group (if there is one) and with
individuals outside of the group [Bromley, 2000].
The notion that property regimes locate individuals toward
others is especially important. This is in fact a key strand of legal
theory dating back to feudal times, when specific kinds of property
were thought to give people (various classes of peasant, cottager,
knight, and lord) a specific place in an ordered society [Rose, 1994].
This idea is at the heart of the place in the world promoted by the
Common Property people.
Institutionalists say that tradable title is only part of tenure security.
The larger issue they ask is: how defensible is any kind of property
claim (tradable or not) in the face of the predations of more powerful
people? History and current politics in any country provide us with
abundant cases of how easy it is for the state to overturn claims that
were once recognized as secure if someone wants to grab a resource
that might be securely owned by someone else. For example, a gov-
ernment can systematically undermine a commons regime to favor
logging companies or discriminate against an uneducated, unorganized
peasantry or indigenous tribe with customary claims over an historical
commons.
30
For this reason, Institutionalists argue that security of
tenure comes from the ability to mobilize coercive power to enforce
claims. In their view, this coercive ability matters as much if not more
than the fact that you hold a piece of paper granting you title.
POLICY VIEWS
In the policy arena, this school is sympathetic to Common Property
and Agrarian Structure ideas, but recognizes that policies emanate
from a political economy and hence create specific winners and losers.
Institutionalists favor a kind of policy analysis that looks at who might
stand to gain or lose from any particular change in a property regime.
31
They avoid pronouncing on what is Pareto Optimal or efficient, since
such terms are seen as value-laden, biased, and utopian. In their view,
good policy making involves deciding what kind of society we want to
have in terms of our culturally specific notion of fairness.
Institutionalists ask us to think about the distribution of assets and
income as well as to give some thought to what kind of world we want
our grandchildren to inherit. Do we want to value only what we can
Policy Views
Property is a social instrument and
particular property regimes are chosen
for particular purposes
sell? Do we only want more things forever? We can choose,
Institutionalists say, and in saying this they ask us to examine how we
make such choices and how we set up rules and systems to do so. And
the we is important. Institutionalists want to know who is doing
the deciding and how that groups power is influencing the decision.
As for policy recommendations relating to property rights,
Institutionalists support the idea of an inclusive property regime that
respects many forms of propertynot just individualized tradable
titles. Moreover, they argue that to defend property rights of any
kind we need three things: government that works; the absence of
predation by either government or private parties; and the absence
of special interest lobbying that captures government and prevents it
from deciding things fairly in the broad public interest. If all of those
pieces of the puzzle are put together, then it is possible in the
Institutionalist world that we could make our way to a widely shared
prosperity. And to the Institutionalist, prosperity does not mean well
get to Pareto Optimal heaven.
These latter policy arguments come from Mancur Olsen, who
wrote with pragmatism that these three conditions do not guarantee
perfect markets, the maximum socially useful innovation, or an ideal
allocation of resources. Nor do they assure that there is an income
distribution with broad appeal. Olsen also suggested that these
hard-to-obtain conditions are most likely to be found in rights-respect-
ing democracies where the institutions are structured in ways that
give authoritative decision making as much as possible to encompassing
interests. And by encompassing, he meant the broad public interest
as opposed to special interest lobbies.
In sum, the Institutionalist contribution to the security of tenure
discussion is to point out that whatever security of tenure people
have does not depend on title per se or on the bit of commons that
the poor may now have access to, but instead rests on a battery of
legal and governance systems that reflect the values of the society, of
which title and the existence of common property are just a reflection
and outcome. Livelihoods of course depend on many of the underlying
resources inside the property regime, a fact that just adds to the
ferocity of the claims for the resource. Your ability to contest and
defend claims to resources will then weigh heavily on your ability to earn
a livelihood. Hence, for Institutionalists, the question in developing
countries is not just about getting property rights clear and demarcated.
Its about how to build the rules of a political and legal system so that
the government can effectively serve as the advocate of the broadest
public interest in the midst of all that claim-making and contestation,
while at the same time honoring all kinds of property. [Olsen, 2001].
A Summary of the Four Analytical Traditions
We have attempted to synthesize four of the most important scholarly
traditions that address tenure security and how it affects community
livelihoods. Each of the four traditions has contributed a valuable
analysis of a facet of the concept called security of tenure. All have
influenced tenure policy and land reforms in developing countries.
And in reviewing the many ideas about security of tenure, this paper
has noted that scholars differ in their conception of what security of
tenure is, who should get it, its virtues for society, and how it is
obtained.
Property Rights theorists reduce security of tenure to a legal claim
to a tradable title in a piece of property. In their view, the virtue to
society of this way of defining tenure security is that it kick starts a
land market that rewards efficient producers of marketed values.
Their policy prescription is to set up individualized tradable titles in
all things.
Scholars from the Agrarian Structure tradition find that the mar-
ket itself creates risks to tenure security that result in an unfair and
inefficient allocation of assets. They urge regulatory constraints on
land and asset markets to manage this risk. The virtue of doing so,
they say, is to stabilize an agrarian middle class, a class that is vital to
maintaining a meaningful democracy and civic life.
Researchers interested in Common Property enrich the idea of
tenure security by noting the useful role that common property has
in allowing the poor a place in the world that is less at risk from
alienation by market forces. Common Property is also thought to be
a fair way to manage many natural resources with physical charac-
teristics that do not easily lend themselves to commoditization and
individual tradable title. On the policy front, common property
advocates make a case for more inclusive national legal systems that
honor existing community-based property regimes and any remaining
commons. The primary beneficiaries of doing so are poor rural commu-
nities whose livelihoods often depend on natural resources.
Institutionalist scholars contribute to the discussion by urging us
to look under the hood of the concepts and to examine the institu-
tional and political underpinnings of tenure security. Security of
tenure, in their view, is the assurance that your property claims will
be respected by other members of society. A third party with the ability
to defend you effectively is necessary, especially if your property
claims are challenged. This implies a social relationship among three
parties in which property and kinds of property are built in a process
of constant negotiation. For Institutionalists, security of tenure is a
notion that is less about title and registration systems and more
about emphasizing the need for functioning and transparent legal
systems that benefit from a government that adjudicates fairly in the
broad public interest. This is necessary so that those who think their
Implications and Conclusions
place in the world is under threat can get a fair hearing of their case.
Implications and Conclusions
A number of conclusions and implications can be drawn from this
review including:
There is no convincing empirical evidence from any of the
analytical approaches that one type of property or property
right is inherently more efficient, optimal, or ideal, as the
notions of what constitutes efficiency, idea, and optimal
are themselves constantly changing in a given society.
An extension of the above point follows. The empirical
evidence shows that there is no single property regime that
will lead to attaining any of the main goals of foreign aid:
social justice, livelihood generation, sound forest management,
biodiversity conservation, or economic prosperity. Such
outcomes are situation- and site-specific, hard to predict, and
in any case not necessarily enduring through time. This is
because the powers of the various players contesting for security
and various property rights are constantly changing, so the
underlying property regime is changing all the time as well.
The Property Rights school overemphasizes the virtues of
Institutionalist scholars contribute to the discussion
by urging us to look under the hood of concepts
and to examine the institutional and political
underpinnings of tenure security.
market trading when it comes to natural resources like land
and forests. There are often no markets to begin with, or
flawed markets in those countries. And where markets are
active and perfect, the Property Rights analysis ignores many
facets of tenure security that are of great importance: how
property rights get created in the first place; the importance
of nonmarket values like tenure security or a place in the
world; the distribution of assets in a society; the relevance
of the commons as a valid type of property in the modern
world; and the importance of understanding the broader
political economy that defines power, justice, and the very
notion of property among people in a given society.
Natural resources especially land and including forests
create many nonmarket values. These values accrue
to individuals, communities, and the wider society. Many
of these are not easily commoditized or traded in property
regimes that emphasize individualized tradable title. Even
when these rights can be defined and traded, it is not clear
they ought to be, or if trading will result in the optimal
production of the desired values. (A well-known example
of these values in the world of forestry includes the
environmental services that forests provide.) Other nonmarket
values like a place in the world and tenure security can be
added to that list of nontraded values. One of the problems
we face is that while the importance of a place in the world
value has declined in western society, it has not declined
in developing countries.
Many community-based property regimes continue to
emphasize the nonmarket value of tenure security and a place
in the world for their members. Do these nonmarket values
constitute a form of property? And if so, do people have a right
to them and does government have a duty to protect that
right? These are critical questions this review has raised.
The Institutionalist approach would suggest that these questions
can not be answered by expert analysis, but only by each
society through its own political means.
A last conclusion is an observation. A degree of convergence may
be emerging within the scholarly world among the different theories
and approaches regarding tenure security and property rights. The
Property Rights group is beginning to consider equity arguments and
the legitimacy of community-based property regimes, and many
practitioners now adopt Institutionalist approaches to designing land
policy to reflect the political economy. This convergence may facilitate
The Common Property school
makes an important distinction
between open-access resources
and a managed commons.
The Common Property school
makes an important distinction
between open-access resources
and a managed commons.
more concerted and more effective action to address property rights
in those parts of the world where tenure insecurity undermines local
livelihoods.
Lynn Ellsworth is a partner at Creative Strategy Group, a strategy
and research consulting firm in New York City. She has 17 years
of experience in international development, getting her start as a program
officer in the social sciences division of the International Development
Research Center in West Africa. She has been a key strategist behind
the creation of a number of trusts and foundations in developing countries.
She has a Ph.D. in agricultural economics from the University of
Wisconsin-Madison.
1
The peasantry was also divided into classes
that included slaves, free and unfree peasants,
depending on the nature of their relationship to
the lord of the manor. The cottager was also an
important class, often a household servant or a
descendant of one. A cottager had a customary
grant of a house and smaller plot of land for sub-
sistence gardening. It is significant froma securi-
ty of tenure point of viewthat in England there
were frequent legal attempts to regulate the deal
that cottagers got and to assure that each cottage
came with at least four acres to provide the cot-
tager with a minimal livelihood.
2
For example, in the late Roman period, both
slaves and free cultivators worked the large agri-
cultural villa estates. This class division was
then overlain with class concepts brought by the
invading Germans, specifically, two newcate-
gories of people. First were the tribal people or
the karl who were free tribal members cultivat-
ing their own land and who had to participate in
civic functions such as policing and juries.
Second were freedmen whose origins are more
speculative possibly freed slaves or remnants
of a partly assimilated conquered people. Since
they were not of the tribe they did not participate
in civic functions like courts.
3
Not all feudal property regimes were horrible to
peasants. In the Vende in France, the local prop-
erty regime had evolved in such a way that it
accorded great stability to peasants, so much so
that during the French Revolution the Vende
peasantry launched a counter-revolution to pro-
tect their feudal place in the world. Even the
young Napoleon sawthe virtue of their cause and
refused to fight themdown, choosing instead to
lead the charge into Italy.
4
Africa is a place where this is well documented,
fromthe Swynerton Plan in Kenya to various
attempts throughout southern Africa to enclose
the African commons (Duggan, 1988).
5
North and Thomas (1977) gave a powerful impe-
tus to this school by applying property rights as a
theory of change in studying economic history.
Norths latter work however is more complex and,
in this readers view, appears to defy categoriza-
tion as a Property Rights advocate.
6
The classic statement of this is in Demsetz
(1968). For the case of forests, this kind of argu-
ment is made by Mendolsohn (1994).
7
It is worth noting that nobody offers serious
empirical evidence for this kind of historical
argument. They just make an isnt it just logical?
argument rather than one anchored in an accu-
rate accounting of history. See for example North
and Thomas, (1977) or Hardin (1968). Also,
see Field (1989) for a thorough debunking
of the North and Thomas argument about the
evolutionary character of property rights.
8
Some scholars raise ethical questions about
why outside developers need to give in to an urge
to fix something as complicated and con-
tentious as property rights in someone elses
country, especially when it is not clear that the
existing property systemis broken. This has
been most remarked upon in Africa, but is the
case for other places as well. Some say when it
comes to tenure and titles, we might be better off
abandoning a social engineering philosophy of
development and letting property regimes in
developing countries evolve in their own time
without interference (Platteau, 2001).
9
See Rose (1994) for a critical version of this
kind of storytelling.
10
Many staff at the World Bank tend to argue
these points froma property rights perspective
and make use of these philosophical ideas. See
the papers in the bibliography by Deininger (1999,
2000, and 2001) as well as Deininger and Feder
(no date) on the World Banks Land Policy Network
website or the paper by Feder and Feeny (1993).
11
In the United States a movement of Property
Rights activists has emerged. They subscribe to a
particular legal school of thinking that says prop-
erty means sole and despotic dominion over the
asset. (Blackstone, cited in Thompson, 1991).
No unbundling of those rights or governmental
restriction on property rights is possible. In their
view, a person with title should have the right to do
anything at all with his or her property, which can
include destroying old growth forests, shooting
endangered wolves, polluting the air, or blasting jet
engine noise at the surrounding community (see
essays in Bromley, 2000 for an elaboration, the
papers in Jacobs, 1999 or those in Geisler and
Daneker, 2000). In this American movement, any
society-imposed constraint on sole and despotic
dominion constitutes a taking of the value of
their property. Partisans of this idea want govern-
ment to pay compensation for such takings. This
is the reverse of a common environmentalist posi-
tion that the polluter should pay.
Notes
Notes
12
See McCloskey (2001) for an elaboration on
these habits within economics.
13
The China case is fascinating. Those who think
tradable individual title matters a lot tend to cite
the case of Chinas reforms that gave individuals
residual rights to production. For example, one
study of a county in China showed that those
affected by the property reforms cleared more
land and produced more things, although the
extent to which land clearing is socially desirable
was not mentioned (Lin, 1992; McMillan et al.
1989; and Jacoby et al. 1998]. Sometimes this
school cites Carter and Yao (1998), who found
that Chinese farmers who had the right to transfer
land tended to use more green manure, and Yao,
(1998) who said that when farmers had transfer
rights they tended to send family members off to
work somewhere off-farm. This latter point is
proof to theorists of this ilk that tradable title
allows everyone to find his or her output-enhanc-
ing place in the world. On the notion that more
titles allowpeople greater access to credit, they
cite Feder et al.s (1988) study of Thailand and
Carters (1997) study of Paraguay. The latter
found that some farmers got more credit after
titling (see also Carter and Olinto, 1996). They
also cite their own collection of anecdotes that
supports their case (Binswanger et al. 1995).
Inconclusive studies also exist. Also, see Deacon
(1994) who brings up a larger issue that stable
political regimes are needed to get property
regimes going in the first place. Those who think
tradable title in land is not so important in creat-
ing incentives to work hard and invest and get
credit and thus generate efficiency-enhancing
outcomes tend to cite a great many studies,
especially in Africa where nontradable title is a
common situation. See for example Atwood
(1990); Carter and Weiber (1995); Migot-Adholla
et al. (1994). Others just find the real-life situa-
tions are more complex than the theoretical posi-
tion of title = security. For example, Place and
Migot-Adholla (1998) find that in a couple of dis-
tricts of Kenya, farmers are motivated to get title
not to increase investment but just to have a
more secure place in the world. Platteau (2000)
and (2001) provides masterful and exhaustive
surveys of the African evidence on this point,
undermining much of the Property Rights story.
On the notion that trading in land does NOT lead to
efficient outcomes, people cite reviews at FAO by
Molina (1997) and Trivelli, (1997) and Riddell
(1998). For a U.S. case see Gatzlaff et al. (1998).
For a summary of the contradictory studies show-
ing a relationship between forest clearance and
tenure security, see Godoy et al. (1998).
14
Many of this school in academia might also ally
themselves with the Institutionalists on many
issues (see elsewhere in this paper), but because
of the distinct emphasis in their work on problems
related to the distribution of land, I put theminto a
separate category. See the works in the bibliogra-
phy by Michael Carter for an example of the kind of
thinking of a development economist of this
school. For a fascinating historical overviewof two
different reformists of this school in the United
States NewDeal era, see Gilbert and OConnors
(1998) chapter in the Jacobs book Who Owns
America? The chapter in the same book by John
Gaventa presents this kind of viewfor Appalachia.
The Land Tenure Center and the associated faculty
at the UW-Madison represent a good number of
the members of this school, although again, it
should be repeated that some would not necessar-
ily claimmembership in this school and in other
contexts would find more comfort in the
Institutionalist title.
15
It turns out that there is reasonable empirical
evidence to showthat middle farmers or small
farmers do tend to make more efficient use of their
land. Why this is so is still a research question.
Some believe it is because of Chayanovs observa-
tion that small farmers are willing to work harder
to keep their place in the world, since they value
the independence more than just throwing in the
plough and going off to a factory where they
become part of a pool of free and unlimited sup-
plies of labor. Although there is some evidence for
this point, it is not always consistent nor does it
provide unshakable proof.
16
See Bromley (1989, 1992a, 1992b) for variants
of the basic argument of this school. An historical
viewfor howthese kinds of arguments emerged in
the U.K. can be found in Eversley (1910), Grove
(2000), Ravenshen and Thompson (1991). Other
overviews and summaries and key articles of this
school can be found in McKean (2000), Ostrom
(1994 and 1999), and Oakerson (1989). A
nonacademic viewfromwithin this school can be
seen at Open Spaces Society (2000), a group that
also maintains a delightful website.
17
These analysts might be called the social jus-
tice members of the Agrarian Structure tradition.
The activists among thempoint to the successful
outcome of many of the NewDeal land reforms in
the United States that effectively gave land title to
tenants and sharecroppers in the rural South. One
evaluation of those programs found that a genera-
tion after implementation, such reforms had sig-
nificant long-run effects, transforming a group of
landless black tenants into a permanent landed
middle class that ultimately emerged in the 1960s
as the backbone of the civil rights movement in
the South (Salamon, 1979, cited in Gilbert and
OConnor, 1998).
17
See Thiesenheusen, 1997 for a reviewof the
Latin American experiences or Martin (2000) for
Southern Africa. Also look at Deiningers (1999)
articles on the World Banks market-assisted land
reformwebsite for a reviewof policies that are
supposed to be justified by such difficulties.
18
Some Property Rights people do so as well, for
different reasons. They ignore the social justice
issues, and argue that land reformis good for
growth (Deininger and Van den Brink, 2000).
19
It is also important to say that people of this
school would not argue that a rural middle class
need be maintained forever. They would recognize
that technology change in agriculture and a deeply
globalized rural economy may one day obviate the
efficiencies that a middle class represents.
20
See Bromley (1989, 1992a, 1992b) for variants
of the basic argument of this school. An historical
viewfor howthis kind of argument emerged in the
U.K. can be found in Eversley (1910), Grove
(2000). Other overviews and summaries and key
articles of this school can be found in McKean
(2000), Ostrom(1994 and 1999), and Oakerson
(1989). A nonacademic viewfromwithin this
school can be seen at Open Spaces Society
(2000).
21
Thompson s (1991) book has a chapter on the
commons that eloquently summarizes and adds
to this historical literature.
22
See also Berkes (1989), Murphree, (1997),
Thompson (1971), McKean (2000), and Platteau
(2001) for various statements on the virtues of
common property.
23
Readers can browse the archives of the annual
meetings of the International Association for the
Study of Common Property for many examples of
all these various outcomes. Recently, Riseth
(2000) reports mixed results as does Walters
(2000). Senecal-Altrecht (2000) and Silva-
Forsberg (2000) describe some successes. Wily
(2000) and Palmer (2001) describe in great detail
many recent legal changes in Africa that are start-
ing to recognize the many viable commons
regimes in Africa.
24
See Ostroms (1990 and 1994) work on these.
Schlager (1998) and McKay (2000) are examples
of scholars trying to elaborate on the design prin-
ciples.
25
Lynch (1995) has the clearest statement of this
advocacy position, used to good effect in
Philippines and being seeded elsewhere in Asia
and Africa.
26
A good survey of the common property world as
it relates to forests can be found in Arnold (1998).
Note as well that some members of this school also
object to the termCommons (see definitions in
the introduction) and prefer the phrase communi-
ty-based property rights systems or talk about
common pool resources (Ostrom, 1990).
27
Useful thinking fromthis school might be found
in Bromley (1989 and 2000), especially the arti-
cles and essays in his book Sustaining
Development. Also look at Bromleys (1994)
articles, Olsen (2001) and of course Thompsons
(1991) fascinating analysis of the rise and fall
of the commons in U.K. Jacobs (1999) book is
also a good place to get up to date. Douglass
Norths recent book (1999) cited in the bibliogra-
phy also seems to this writer to belong in
the Institutionalist school, despite Norths
long-standing affiliations with the transactions
cost people within the Property Rights school.
As for on-the-ground studies, a good example of a
recent Institutionalist approach might be
Southgate (2000), who looks at the jockeying that
can go on to manipulate property rights in
Ecuador. Singer (200) also presents a big picture
Institutionalist viewof tenure change. Sen (2000)
might also be classed with this school, at least as
a major influence. For an Institute of Development
Studies UK variant of institutionalismusing the
vocabulary of entitlements and rights borrowed
fromSen, see Mearns (2000) and Bebbington,
(1999).
28
Even a feeble workers union can suddenly
become powerful when a load of strawberries
arrives for shipment on a hot day. Such a day
provided the impetus to the career of one of the
U.S.s most powerful labor leaders, Jimmy Hoffa
(story described in Olsen, 2001, p. 97).
29
Institutionalists would appreciate the observa-
tion that Napoleon (as emperor) lost property
rights over a whole world after Waterloo, and it is
worth noting that he claims to have lost the battle
because of unexpected rain that prevented him
frommoving his cannons close to the British, thus
allowing time for the Prussians to arrive (who
were working with the British in that battle); hence
he could not fight each army sequentially as he
had hoped (Herold, 1955). A more typical
Institutionalist story is paraphrased from
Bromleys 1989 book:
A rancher in a remote corner of Montana got up
one morning and rode out across his vast
estate. In one corner he found a City Man
building a house.
Rancher: Hey, you cant build here. This is
my land.
City Man: Says who?
Rancher: I do. I inherited this land from
my father.
City Man: Howd he get it?
Rancher: He inherited it fromhis father.
City Man: Howd he get it?
Rancher: He fought the Indians for it.
City Man: Fine. Then you can fight me for it.
30
There, a coalition of indigenous people won
secure legal claimto a mahogany-rich forest, but
within five years the policies and legal systemand
dubious behavior of logging firms quickly led to an
outcome where the logging companies and gov-
ernment managed to log out the actual resource
with just a fewpayoffs to indigenous leaders. See
Roper (2000) for the full story.
31
Boscolo (2000), with no particular affiliation
with this school, gives an example of an analysis
of this type related to forest concession contracts.
Ainslee, Andrew. (2000) Wading In: The Realities
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