Land tenure Institutions

Posted June 2000

Emerging trends in land tenure reform: Progress towards a unified theory1

by
James C. Riddell2
Chief, FAO Land Tenure Service

Abstract

Land tenure regularisation is often thought of in terms of support to capital formation. It is commonly held that the security of tenure provided by land registration and cadastre is almost a precondition these days to attract financial capital to rural areas (natural capital). By the same token, the clarity of tenure relations and conflict resolution procedures provided by regularising institutions contributes to physical capital development. Valuation and taxation make possible community investments in infrastructure, education, health and social services. These latter are investments in a society's human capital. The present paper focuses on FAO Member Nation experience in the formation of another type of capital, social capital. In the analysis, the author presents a case for a positive relationship between land tenure regularisation and social capital formation in those cases involving shared and common rural resource tenure systems.


Good land tenure systems are a necessary foundation for sustainable agricultural practices. The on-going liberalisation of the world's political economy has brought to the fore the need for open and transparent land markets and market transactions. Thus FAO member nations are creating or extensively re-examining their legal systems, conveyancing institutions, mortgages, surveying, registry/cadastre, land information records and conflict resolution. Former socialist economies are changing from social property models to those based on individual and private rights. Thus they are creating for the first time, or recreating long abandoned property markets in land and other natural resources. Another sizeable group of member nations are searching for ways to integrate communal/traditional and tenure systems into national economies in ways that are compatible with structural adjustment and economic reform. In addition, most member states with active land markets are undertaking major rebuilding programmes to convert manual land registries and cadastres to take advantage of advances in digital technologies.

This paper identifies a synergy between research and theory-building that has emerged on four different fronts affecting land tenure in recent years. First there is the stimulating work on property rights reform. Second, the influence of much recent writing on the role of social capital has made this concept one of the cornerstones of most current development theory. The third maturing literature is the understanding we have developed over the recent past on how common property and pooled resource management (CPRM) systems operate. The fourth major intellectual development discussed in this paper covers the advances in land information systems (LIS)3 and cadastre reform. We will attempt to demonstrate that under the right circumstances the recognition of indigenous property rights, combined with well designed LIS can create much needed social capital for sustainable natural resource use.

Property rights formation

The sudden collapse of socialism and its concepts of social property has produced the most remarkable case of intellectual amnesia on the one hand and an almost equally intense focus on the market in private interests, on the other. We seem to have forgotten for the moment that Socialism was a response, the wrong one perhaps, to the fact that the early market economies were not sufficiently open to the poor and disadvantaged and had resulted in great imbalances in the distribution of wealth and property. Unfortunately, it was not some great scientific or intellectual discovery that caused the paradigm shift on a world-wide scale. Rather it was the suddenness of the total financial collapse into economic bankruptcy of all socialist economies that made all of us such experts on "the market".

With all this rush to elucidate the natural benefits and invisible hand of the market, there has been a growing appreciation and re-appraisal of a well developed literature that is far more sophisticated and probably of longer lasting value. This is the exploration of how property rights are established, how they are given social, legal and economic capacity and how they are transacted (Demsetz, 1967; De Soto, 1993; Schmid, 1992). The basic lesson is that a liberal economy depends just as much on good property institutions as it does on good macro-economic policy. Basic institutions have to be in place before the benefits of changes in property rights are felt by those members of society who need them the most. Thus, it may be hard to draft a good property law, but this has proven easier than creating local land registries, local cadastre offices, and local court systems that serve all the citizens (Simpson, 1976). To this we need to add the difficulty of finding the needed human resource expertise to provide the professional skills needed for mortgaging, conveyancing, surveying, property valuation and other institutional services at the local community level. Property transactions require that professional ethics are established and maintained by the surveyors, mortgage bankers, land registration clerks, etc. (v. for example FIG Commission One, Draft Statement on Professional Ethics, 1997). All these factors have to be in place before a land market can be expected to play a significant role.

Social capital

A promising line of thought has been introduced through an examination of the ways in which people in different societies create their "social capital". Social scientists have analysed social relationships through a variety of lenses. However, long before anyone described anything as a social science it was recognised that who you know can be just as important as what you know. Lately, however, there has been a renewed interest in what Anthropologists and others have described as a society's social structure in terms that differentiates those social relations that are relevant for economic development from those which are not. Those types of social relationships that a person has that are reciprocal and supportive of other capital formations have been designated lately in the literature as social capital.

Some examples of what the literature describes as social capital will help understand this important concept. For instance, Putnam and his research associates (v. Putman, 1990) closely examined the development of modern Italy. Italy presents something of an anomaly to the research community. It is currently the fifth wealthiest nation in the world, but is structurally bifurcated between a prosperous north and a relatively poorer south. What they found was that in the Northern part of the country there was a long tradition of a social structure of social relations that emphasized a companionship [com + panis = sharing bread] of declared equals. Examples of this were the many confraternities, the guilds, the political societies, and in later years, co-operatives and trade unions.

What is important is that the members of these voluntary associates had a cultural tradition of not only eating together but also entering into contractual bonds with each other for mutual support. This created a series of horizontal social relationships that on the one hand blurred the inherent social inequality between members but also served to enhance the type of transactions that lead to economic growth and capital accumulation, on the other. This is contrasted with a less economically developed Southern Italy that is characterised in the literature by hierarchical relationships, the classical client - patron (Carmagni, et al., in press).

This promising lead has been further developed in its relevance to a general development perspective (Coleman, 1994; Sergheldin, 1995; Novellino, 1997). Luckily there has been a fortuitous synergism with recent developments in institutional economics (Williamson, 1985; Nabli and Nugent, 1989; Eggertsson, 1990). The recognition that institutional capacity (that is, that an institution can accomplish something) is related to the kinds of social capital that goes into its make-up provides theoreticians with a powerful analytical tool for re-analysing the development process at the local level.4

The land tenure of Common Property Resource Management (CPRM)

Nowhere is the need for understanding of the nature of how social capital can be created greater than for the many rural populations that are managing common [communal] and pooled resources. Fortunately there has been a growing sophistication in the understanding of how common and pooled property resources can be managed. In this paper we discuss two types of common property. The first type is a resource base, commonly grasslands, fisheries or forest, that is used by all recognised members of the group. The second type is where most of the land is held in long term, secure usufruct (fields, orchards, etc.) by individual housholds, but where it is viewed to be part of a larger property held "in common" by the entire group. Both of these types of common property management systems are usually organised under indigenous land tenure regimes.

Much conventional wisdom in development theory has held that traditional/indigenous land tenure systems are a constraint to modernisation. While anthropological research and the literature on traditional legal systems clearly exposed the sophistication and rationale of such systems, it was not until the environmental movement brought the issue to the fore that such analysis came to the attention of a wider audience. A "take-off" point can be traced to the reaction to the famous paper by Hardin, The Tragedy of the Commons, which appeared in 1968. While the paper said little that had not been thoroughly discussed in the land tenure literature before, it appeared at an opportune time. It was, in a certain sense, a way of blaming the victims for the deteriorating ecological base on which many of the world's disadvantaged indigenous/traditional rural populations lived. It was "their" overgrazing that was responsible for desertification of the grasslands, it was the lack of individual rights of exclusion that permitted growing populations of tribesmen to cut down the world's forests. This argument led to the obvious conclusion that privatisation of resource rights was ultimately a necessary component to sound ecological management.

This conclusion, while convenient, simply did not square with the vast body of data, anthropological and archaeological, that demonstrated that CPRM systems had managed these same environmental spaces in a sustainable fashion since the Neolithic. This has resulted in a new theoretical position on common and pooled resource management (e.g. Orstom, 1990; Bromley, 1992; Platteau, 1992). Indeed, the studies have demonstrated that in fragile environments, it is often the case that it is the common and pooled resource management systems that are the most sustainable. Where they do not work, it is more likely that the external institutional structures are at fault than the land tenure system (Dasgupta, 1993).

In the case of arid grassland, etc. it is simply unrealistic to imagine (technologically as well as economically) moving from common resource management to individual and private ownership that is formalised and specified ("cadastre rights") due to the nature and constraints of seasonal resource dependency. One must keep in mind the large distance that must be covered in search of pasture, forage, salt licks and so forth (Sidahmed, 1993; Whytock, 1992). Livesock management does not permit individualisation of ownership beyond certain population densities in arid areas. The communal systems support human-land densities higher by many factors than those found even in intensive cattle feeding systems. Under such conditions, individualisation of resource rights is not only non-sustainable, but also irresponsible.

For all of our current faith in the market, we need much more empirical data on the mechanism before we can claim to understand what is going on. For example, much of our recent work at FAO on rural land markets has demonstrated how inefficient and often ineffective they are at distributing landed resources to the most efficient and effective users. For instance, the markets far more often than not become segmented. The poor and the small holders participate in one market, while the elites in another. Even in situations where we have willing sellers of large estates and willing buyers among the small holders, the property transaction institutions are incapable of rising to the challenge (Herrera, 1996; Trivelli, 1997; Molina, 1997). Procedures are costly, slow, arcane, and designed to serve a very limited number of participants, normally the landed gentry.5 Are we to trade one ideology for another?

Cadastre reform and Land Information Systems (LIS)

This is where we feel that the recent advances in theory and technology associated with the space sciences, geomatics, and, of course, the whole information technology revolution, have the possibility of being a major help. The original cadastres were not created so much for the benefit of rural populations as they were for government financing. Early cadastres were basically tools for assisting the allocation and collection of taxes. The evolution of the institution of the "cadastre" comes to us from the capitastrum which was a register of land values for the capitatio terreno, the ancient Roman property tax. In the Byzantine empire this land tax became known as the katastikon. The Venetian Republic used the Byzantine model for their taxation system and re-Italianised the name as the catastico (Riddell, 1993). Thus the cadastre as a record of property rights pre-dates any of our other land registration procedures.

The importance of the land tax in pre-industrialised economies meant that great effort was expended on these fiscal cadastres (v. Keith, 1993). The more accurate the data, the greater the revenue. No better example of accuracy over utility can be found than the beautiful cadastre maps created by the Kingdom of Naples between 1741 and 1750 (il Catasto Onciario) that tried to detail each taxable tree, etc. Napoleon ordered the first modern, national cadastre in 1806 to finance his grand plans. Cadastre experts continued to stress accuracy over utility until very recently.

It became apparent to an increasing proportion of the profession that considerable national expenditure was being consumed to maintain land data that is potentially very valuable for planning and societal development purposes. This realisation led to a call for making the cadastre multi-purpose, that is to include more than valuation and land registration related data (Grant and Kelly, 1995, for a discussion of this evolution in one jurisdiction). Currently available technology opens up the possibility of being able to integrate vast amounts of geographically referenced data (Dale and McLaughlin, 1988). The modern cadastre, then, is viewed as an information base for better land administration that also serves land registration and related purposes (Nichols, 1993). What characterises the modern LIS based cadastre is that it is parcel based. That is, the focus is on the land users.

This is important. A GIS (Geographical Information System) data system focuses on things: a soil type, land use, energy network, and so forth. The LIS focuses on people and their rights. Thus, from its very foundation it is based on the cultural definition of what are the land units for that society.6 In other words, as opposed to our traditional exportation of a land registration system from one part of the world to another, the modern LIS is adaptable to almost any cultural definition (FIG Statement on the Cadastre, 1997). Modern LIS technology and thinking has made great strides in changing from one where, to use a line from Cherrett, et al. (1995:32), "… the professionals are on top, not on tap; they have a solution in search of a problem." It is now possible to have the LIS professional "on tap" to respond cost-effectively to the changing needs of persons entering the international market with common and pooled property resources, as well as other types of tenure arrangements (Rakai, 1995; Egbzibalike, 1997; Williamson, 1997).

Another benefit to using a [more or less] culturally free technology to clarify the actual existing land tenure relationships of a society, it that it also forces the questions of reform where these systems are incompatible with the implementation of liberal policy and institution building. For example, recent work in using LIS as a tool in understanding land tenure resource use in certain areas subject to environmental stress (projets de gestion foncière) has revealed in a number of member countries rural areas with deeply rooted systems that can only be described as something akin to slavery and serfdom. LIS techniques helped policy makers realise the relationship between an extremely inequitable land tenure system and the resource base, the size of the problem and its costs to the larger society.

There are other well documented problems that arise in contemporary common property situations. One of them is that in many collective property systems persons having traditional rights to land cannot abandon their allocated parcels without jeopardising their tenures. The authorities are free to give these lands to someone else. This commonly creates a situation where farm families will maintain some fiction of keeping the land in production, to keep their rights alive, often by having an elder relative or spouse reside there, or make minimal investments.7 This prohibits other families from using the land in a more productive fashion (Lindsay and Trenchard, 1997). When rights become regularised and supported by an adequate LIS, we often find that families are willing to enter into leasing arrangements with their neighbours while they seek employment elsewhere (Gordillo, de Janvry and Sadoulet, 1997).

Discussion

The problem remains, how do we move from a set of promising theoretical insights to action that actually enhances the probability of indigenous populations participating in and benefiting from a liberalised, more market oriented political economy? Just how are non-defeasible property rights to be created and recognised in a world that is just coming to grips with its cultural diversity with the rapid growth of WTO and globalisation? How is the right kind of social capital to be created for indigenous communities to enter into "arms-length" negotiations over the use of the resources in their historical possession? We feel that a first step is in creating the conditions for fair transactions (Dia, 1996).

But how? That is the question. There is growing evidence that privatising common property and communally held land and resource rights does not automatically lead to sustainable investment or development (Barrows and Roth, 1990; Migot-Adholla, et al., 1991; Bruce, 1993; Sjaastad and Bromley, 1997). This is somewhat surprising. The conventional wisdom had been that privatisation with good land registration systems would make land a creditable good [i.e. financial capital]. This would allow agricultural producers to get the credit they needed to buy into the improved technologies available. In addition the increased security of tenure provided under individual, registered land titles would provide the protection needed for long term investment strategies (v. McLaughlin and Palmer, 1996, for a review). Indeed, the initial response of farm families in Kenya following the implementation of the Swinnerton Plan in 1957 and later the same very real "take off" of farm production following titling of agricultural properties in Thailand seemed to confirm this proposition (Coldham, 1978, for a discussion of how litigation increased; Feder and Ochan, 1987).

The Kenya data gives us a longer time perspective than those from Thailand. As the land registration programme spread, researchers began finding less and less association between on-farm investment and titling (v. Bruce and Migot-Adholla, 1994, for a good collection of papers summarising the data). Yet land registration is used by small holders in innovative ways (Haugerud, 1983). For instance it is used by women to invest earnings made in the urban economy to purchase a shaba [rural home site] in areas where they would have no traditional rights. At the same time we find impressively dense investment of financial and human capital [labour] in areas where the land was registered at one time, but has largely reverted to traditional land tenure patterns (Hunt, 1982 and 1984). It should be no surprise that individualization of rights in land and resources is of interest only if it includes real economic value and if individual management has a good chance of a higher profit. Privatization of resource rights of individuals is usually expressed in terms of exclusion. The truth is that these systems are based on a more sustainable criteria of "inclusion" that is often lacking from modern market centered theory on resource sustainability. 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 when confronted with conflicting evidence.

In a situation where there are good empirical data that support both sides of a theoretical proposition, we may be looking in the wrong place. In regard to security of traditional land tenure systems, the problem has been where do people feel insecure. Tenure security within the land owning group does not emerge as a problem in the vast majority of studies (Riddell, 1988; Bruce and Migot-Adholla, 1994). On the contrary, our work keeps indicating that the greatest source of land tenure insecurity is vis-à-vis the usurpation of land by government agencies for "development" initiatives (FAO studies). In this case, the regularisation of land tenure rights through a land registration programme provides much needed protection against "development agents", an observation that should give the audience for this paper a pause for thought!

In all agrarian societies land tenure rights are negotiated and transacted. Even in societies where sale, transfer, lease and so forth of land is said to be forbidden, people are observed to transact these rights for consideration. One need only witness the rich literature on prestation, pawning, absorption of outside populations, transfers at time of marriage, devisement and so forth found in traditional societies (e.g. Riddell, 1988; Riddell and Campbell, 1989). These transactions involved in exchanging primary and secondary land tenure rights are an essential part of the local group's use of social capital.

What is lacking is the means for outside parties to enter into these transactions. Internally all these transactions are negotiated according to established institutions, with the outside world they are usually situational (Aidoo, 1996). We can take a fairly common experience to illustrate what we mean. Government wants to grant a forest concession to company to put forest resources to productive use.8 However, in a majority of cases, governments do not have LIS data on which local populations have which kind of traditional rights to the resources involved. In such a situation, it becomes time consuming and expensive to determine and establish these rights, and then start fair negotiations on what would constitute an equitable and sustainable use of the resources. Far too often there is neither participation or negotiation with the indigenous population and government simply uses police power to enforce ultimate sovereignty over its territory (Paniagua, 1992). This leaves all parties with an unsustainable relationship with the landed resources involved (Cox, 1997).

This common scenario arises where the local land tenure group lacks clarity of its territorial claims and weak social relationships [the horizontal social capital discussed above] in the larger social universe which are necessary for the needed negotiations to take place (Clark, 1991). The relations usually remain strictly vertical. Indigenous communities must appeal to those above them (administrators, NGOs, etc.) to advocate on their behalf. These advocacy groups in turn must use their own social capital to find a level at which negotiation can take place. This is often accomplished by generating enough international concern that leaders in the international NGOs' home countries are pressured into opening up negotiations with their counterparts in the concession granting government. Where such advocacy does not capture sufficient attention, unsustainable hierarchically organised resource use abounds, as we all know.

True participatory development in a liberal economy and political system will require first of all that the new awareness of the importance of property rights and relations are recognised for all players - especially those in common and pooled property regimes. Modern LIS provides just such a tool for starting this process because it is a way of recording the empirical data of who has which rights to which parcels containing resources (soil, mineral, water, business sites, etc.), for how long and for which purposes. It is a set of tools that allows us to clarify the already existing philosophy of property. Thus, we are able to describe in clear graphical terms the existing property relation of any social group - in terms sui generis.9 This is especially needed where local property laws have not been codified or otherwise formally written and organised (Payne, 1997).

Thus, if the FAO land tenure experience is generalisable, land tenure regularisation is needed to accomplish two major goals. The first is to ensure that existing land tenure rights are respected and secondly, to provide the clarity on just what these rights are. In the case of the former, we find that rural populations all over the world are responding to economic and political liberalisation in a very positive way. What is important to note is that they are doing so with a wide variety of land tenure systems. Regularisation, however, must avoid "freezing" what is a constantly evolving response to reality (v. Ciparisse, 1997, for a discussion of peri-urban areas). No land tenure system, common property or other is ever fixed. Empirically we observe that rights in the world's traditional common property regimes are becoming increasingly individualised. At the same time, property relations in the most advanced market economies are incorporating more and more communal aspects. One only has to witness the growing popularity of condominium law and time-sharing schemes.

Why, we ask, should the relationship between a forest harvesting company and land owning clan in Papua New Guinea be so different from owners of sustainable forests in Oregon, Sweden or France. We would argue it is because there is no basis for forming a horizontal social relationship through the means of an "arms length" negotiated contract. The contract is an instrument for forming social capital with persons outside an immediate group, and is one of the primary ways available to individuals in developed economies to create horizontal social relationships in regard to resource use, exchange and most other daily transactions. What modern contract law does in social capital terms, is to create a negotiated horizontal relationship between individuals who may in fact be very unequal. It works because it bypasses all the inefficiencies and uncertainties of patron-client dealings. It is, nevertheless, important to distinguish that we are speaking of "arms-length" negotiations where the parties are independent in the sense used in Coase (1937) and O. Williamson (1985).10

If the above line of reasoning has validity, then we see that the very institutional relationships between indigenous populations and their resource created through land tenure regularisation using LIS and property formation can be used as the basis for social capital formation with individuals and groups outside the local community (UniQuest, 1997). Clans, lineages, etc. would have an institutional means of negotiating their own arrangements for use by outside enterprises of their resources. These negotiations can include all types of resources. Water rights, mineral rights and so forth are amenable to the same types of negotiated access (Rosengrant and Binswanger, 1994). For example, recent work showed that clans in Fiji are entering into a number of leasing arrangements with resort chains, plantation companies and individual entrepreneurs (Rakai, Egbzibalike and Williamson, 1997).

This calls for the development of effective and simple institutional foundations for market transactions in support of property rights. Where contracts are governed by a corrupt or backlogged system that is difficult for the average person to understand, the most effective and efficient resource allocation mechanisms will revert to those of client-patron relationships.

This works because the LIS has provided the necessary clarity to the legal capacity that is created by property legislation. Outside firms are able to enter into transactions where the bargaining parties have been clearly identified and the property parcels, communal or individual, have been unambiguously defined. That is, it makes formerly implicit relationships explicit. This should be attractive, as the transaction costs involved in displacing populations to take over valuable resources has got to be much greater in the long run. One need only witness the ultimate costs involved in Bougainville mining operations.

Of course, all of the above is based on the assumption that the LIS-based system is also "owned" by the indigenous groups. To be accurate they can only be developed in a participatory manner. To be used, they have to be available locally. In the Fiji example, both negotiating parties have access to the same data, and the clan leadership jealously guards its prerogative of conferring and confirming any changes.

Conclusion

The above has set forth some of the thinking in which we are currently engaged in our search for a way between the Scylla of naïve faith in the market and Charybdis of trying preserve a way of life that the actors themselves are trying to change. It has been our experience that the majority of the members of communities having common property resource management systems are very willing to enter into market relationships with the rest of the world. What they are not willing to do is loose their resources in order to do so. To play their fair role they need to have their property rights recognised, both legally and operationally. With the recent development in LIS techniques I personally feel that we now have a suitable set of tools to provide clarity to legal capacity.

This is not enough, however. Population possessed of property, no matter how clearly defined, will soon loose it if they do not have the equally important capacity to defend their rights. This requires social capital-lots of it. We have proposed that proper land regularisation can serve as an aid to creating this needed social capital by allowing a new set of horizontal relationships to emerge through the use of lease, contract, partial and temporal interests in their resources that do not jeopardise either the long term interests of all parties, or the sustainability of the resources involved. The sooner we have these populations on a "level playing field" the sooner we will be able to really address the issues of a truly global market economy.

The forgoing has tried to set forth some of the synergy we might expect if we combine the analytic and technological tools that have emerged in fields that have been evolving largely independent of each other. These gains, however, are dependent on success in another area that has been of long concern - that is on good governance (Hydan and Bratton, 1991; Diamond, 1994). It does little good to create property rights and a well functioning LIS in the hope of creating sufficient social capital and institutional growth in poor rural communities if in the end the government is incapable or unwilling to ensure that the weak can enforce their contracts or that the new property rights of the poor are protected. In this day of decentralisation there is still the fundamental role of government to use its ultimate police power to referee the system (J.R. Commons, 1957; A. Schmid, 1992). Without the acceptance of this responsibility by government institutions, rural development based on economic and political liberal ideas is impossible.

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1 Paper published as Réformes des régimes foncièrs: les nouvelles tendences -- Progrès vers une théorie unifiée in: Politique des structures et action foncière: au service du développement agricole et rural. 1998. Paris. CNESEA. [Results of a Colloque (St. Denis, Novembre 1997) of the same title.]

2 Chief, FAO Land Tenure Service. The Author would like to especially thank Gerard Ciparisse, Jon Lindsay, Ali Mekouar and George Benwell for their inputs and thoughts on earlier drafts. The opinions expressed are those of the author and do not represent any official position.

3 When we speak of LIS we are referring to parcel based data to distinguish these systems from GIS (Geographical Information Systems). The relationship and distinctions between the two will be elaborated in our ensuing discussion.

4 What is very fruitful is to see how the various types of social capital articulate with available land tenure and institutions to define the poverty threshold in a local group or community (v. Groppo 1992-3)

5 Indeed, the fact that land is finite and usually associated with strong cultural values, its market is often much more akin to an art market than to a normal commodity market. Normally, like the art market, you can only attempt to buy those parcels of land that are offered for sale. They may not be the ones you want most, nor in the most desirable location and the willingness to buy or sell can be greatly influenced by history, aesthetics, and so forth.

6 This does not mean that there is not a very detailed literature devoted to what constitutes a parcel in general and in each jurisdiction. As an introduction to this literature we suggest Moyer and Fisher 1973; Nichols 1993, esp., Chapter 3; or D.B. Grant 1995 for database considerations)

7 It is well documented that for many people to have a land right in their natal area is part of their definition of self - the land does not belong to them, but they belong to the land (Benwell 1997). The need for an "ownership" right that is secure in an ethnic homeland is something we see emerging, or resurfacing in many parts of the former Soviet Union (Riddell 1996).

8 From the point of view of the traditional societies they predate the national government and therefore usually do not recognise the rights of modern central governments to political and economic power over resources. Also, land tenure research with traditional societies has clearly indicated that there is no such thing as vacant or unowned land. This is a myth of earlier legal and political convention (v. Bennett 1978; Berman 1978).

9 Dealing with "customary law" is often viewed as unnecessarily complex by those who have a desire to put landed resources to a new use. This is a mistaken assumption. As Bascom put it many years ago (1951), all effective law is customary law. What he meant by this is that a population feels something is just, right and proper in a legal sense because it is what is customarily accepted as just, right and proper in their society.

10 We recognise, of course, that many land tenure related contracts are prejudicial to one of the parties and are hierarchical. This is especially common where land lords have a monopsodic bargaining position vis-à-vis tenants and farm labourers.

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