by Nicole Cochran
February 11, 2016
Land tenure is the set of institutions that define the relationship of people to the land, consisting of institutions, or rules, that govern that relationship. Though less than half of the world’s population now lives in rural areas, the vast majority of people who live in rural areas depend on agriculture as their primary source of livelihoods. Thus, land is a critical resource for many, and the rules that govern it matter a great deal.
Economists have had much to say about property rights. In the 1960s the theory of the “tragedy of the commons” posited that communal property rights are inefficient. The basis of this proposition is that, in the face of scarcity, communal resource systems lead to overexploitation of resources. Additionally, title to private property has been espoused as a source of capital by which the world’s poor can move out of poverty. However, others have begun to consider informal institutions and the importance of culture to property rights systems. In 2005, Elinor Ostrom found that communal property rights can lead to the efficient use of resources under certain conditions.
The notion of inefficient communal land rights greatly impacted colonial land policies in Kenya, and these in turn have influenced Kenya’s current land tenure system. Prior to the influence of colonialism, land tenure was largely based on communal rights to land access and use. Today, coexisting in Kenya with the customary system of land rights is a system of private land tenure. This system arose out of colonialism and western influence with the objective of promoting economic development, resulting in the establishment of private property rights institutions post-independence. Political corruption and civil war then undermined these institutions over the course of twenty years. Such corruption included the subjugation of communal land tenure among chthonic groups. These factors appear to have influenced recent Constitutional and property rights reform that, at least facially, reinforces private and customary land tenure. However, pastoralists’ universal access rights are at odds with the exclusionary rights of private property. Thus, the effect of economics-based policies, such as the Swynnerton Plan, has been a permanent impact on land tenure in Kenya.
In China, land is also communally held, and land tenure has a complex history. There is an extensive history of land tenure insecurity extending across centuries and dynasties. As can be seen in more recent history, socialist values also influence land tenure in China. In 1949, the People’s Republic of China assumed power, and subsequently established communal ownership over all rural land. However, China’s land policy has shifted substantially in recent decades. So as to promote economic development, notions of private property and private land use have been increasingly incorporated into the Chinese legal system. As a result of these developments, private property rights are constitutionally guaranteed and rights to use government or communally owned land are protected by law against infringement. However, expropriations of land and property abound, and have resulted in deaths and social unrest.
Regardless of whether the effect has been positive or negative, economic theory clearly has influenced land policies throughout the world.
Agriculture & Development, World Bank (last accessed December 2, 2015), http://data.worldbank.org/topic/agriculture-and-rural-development.
Annie Deng, Dousing the Flames: The Tan Fu Zhen Self-Immolation Incident and Urban Land Takings Reform in the People’s Republic of China, 20 S. Cal. Interdisc. L.J. 585 (2010).
Shu-Ching Lee, Agrarianism and Social Upheaval in China, 56 Am. J. Soc. 511, 512 (1951).
See Yuli Liu, The Self and Li in Confucianism, 31 J. Chinese Phil. 363, 363 (2004).
Eva Pils, Land Disputes, Rights Assertion, and Social Unrest in China: A Case from Sichuan, 19 Colum. J. Asian L. 235 (2005).
See Qianfan Zhang, How Land Grabs Are Made ‘Constitutional in China, in Land Grabs in Asia: What Role for the Law? 41 (Connie Carter and Andrew Harding eds., 2015).
Tom Ojienda, Conveyancing: Principles & Practice, 10 (2008).
See Carolyn K. Lesorogol, Privatizing Pastoral Lands: Economic and Normative Outcomes in Kenya, 33 World Dev. 1959 (2005).
Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1243 (1968).
Armen A. Alchian and Harold Demsetz, The Property Rights Paradigm, 33 J. Econ. Hist. 16 (1973).
See generally Hernando De Soto, The Mystery of Capital (2000).
See generally Douglass C. North, Institutions Institutional Change and Economic Performance (1990).
See Ato Kwamen Onoma, The Politics of Property Rights Institutions in Africa 145-75 (2010).
See Evelyne Asaala and Nicole Dicker, Transitional Justice in Kenya and the UN Special Rapporteur on Truth and Justice: Where to From Here?, 13 Afr. Hum. Rts. L.J. 324 (2013).
See Albert Kwokwo Barume, Land Rights of Indigenous Peoples in Africa 105 (2010).