Changing Properties of Property

Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Melanie Wiber, Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Melanie Wiber

• Publisher: Berghahn Books
• Year: 2006
• ISBN:
  9780857455284
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto sulla proprietà

As an important contribution to debates on property theory and the role of law in creating, disputing, defining and refining property rights, this volume provides new theoretical material on property systems, as well as new empirically grounded case studies of the dynamics of property transformations. The property claimants discussed in these papers represent a diverse range of actors, including post-socialist states and their citizens, those receiving restitution for past property losses in Africa, Southeast Asia and in eastern Europe, collectives, corporate and individual actors. The volume thus provides a comprehensive anthropological analysis not only of property structures and ideologies, but also of property (and its politics) in action.

Chapter 1

The Properties of Property*

Franz von Benda-Beckmann

Keebet von Benda-Beckmann

Melanie G. Wiber

The most serious single source of misunderstanding of the concepts of alien cultures is inadequate mastery of the concepts of one’s own culture

(Finnegan and Horton, quoted in Hirschon 1984: 2).

Introduction

Property is in. The media follows debates about patenting food crops and the human genome, while protesters around the world reject neoliberal privatisation. Academics and policy theorists tout various property forms, while the market turns ever more things into commodities. Throughout history, property has been at the centre of such intellectual, economic and political struggles. A number of recent developments force us to take a renewed look at property. One is the rapid increase in new types of properties, including social security rights, tradable environmental allowances, bioinformatics, cultural property and even such ephemeral things as air. Another development is the changing constellations of property relationships that form network-like structures sometimes reaching around the globe. These developments touch on fundamental issues of identity, social organisation and governance that have wide implications. They have also put classical property categories under increasing strain.

But to focus on property immediately entangles one in a long history of deeply intertwined conceptual discussions, social philosophies and ideological justifications of past, present and future property regimes. This is not surprising as property concerns the organisation and legitimation of rights and obligations with respect to goods that are regarded as valuable. Property is thus the legitimate cloth of wealth as property systems structure the ways in which wealth can be acquired, used and transferred. Property is of central importance in all economies, but it cannot be reduced to ‘the economic’. Property is always multifunctional (F. and K. von Benda-Beckmann 1999). It is a major factor in constituting the identity of individuals and groups. Through inheritance, it also structures the continuity of such groups. It can have important religious connotations. And it is a vital element in the political organisation of society, the legitimate command over wealth being an important source of political power over people and their labour, no matter whether we think of domestic or kinship modes of production, capitalism or communism. Property regimes, in short, cannot easily be captured in one-dimensional political, economic or legal models.

Property is the focus of struggles at all levels of social organisation, within and between families, communities, classes and states. The distribution of property objects has been contested throughout history, as have the legal property regimes themselves. Ruling elites have put much energy into regulating and changing property regimes in support of such variable objectives as accumulation of wealth for their own benefit, a public good such as equity, the efficient use of scarce resources, or the protection of the environment. And ordinary people have always had their own objectives, and their own corresponding views on how property should be organised.

As a result, property regimes and property rights have been a central theme historically in law and philosophy. More recently, they have also become central to many other disciplines including sociology, anthropology, political science, economics, geography and human ecology. Property figures as a prime mover in such diverse topics as social evolution, modernisation, globalisation, human rights, civil society, and sustainable resource management. Given this instrumental importance, many theories focus less on accurate descriptions and explanations of existing property regimes and more on desired (just, efficient) states of ideal property relationships, more on how property regimes should be instead of how they are (Reeve 1991: 111). One result is that property models that purport to be universal are in fact largely based on Western legal categories, the most important of these being the notion of private individual ownership, often regarded as the apex of legal and economic evolution as well as a precondition for efficient market economies. This has led to a misunderstanding of property both in Third World societies and in Western industrialised states, encouraging property policies that have unintended and deleterious consequences.

As a result, property as a concept has become loaded down with a heavy freight of political and ideological baggage. In this introduction, we refer to the individual contributions in the volume to unpack much of this freight. The volume as a whole also explores how the analysis of property regimes has been hampered by the lack of any sufficiently rigorous analytical framework. This lack can be redressed by returning to earlier foundations, such as the metaphor of ‘property as a bundle of rights’, which while useful, has rarely been used consistently. We demonstrate how to take the ‘bundle of rights’ seriously in order to capture the different roles that property may play, as well as the complexities and manifold variations of property in different societies and in different periods of history. We also incorporate the several distinct analytical layers at which property manifests itself, in ideologies, in legal systems, in actual social relationships, in social practices, and pay attention to the interrelations between these phenomena. What property is at these different layers may vary significantly and this variability cannot be reduced by collapsing one layer into another. Finally, we think it vital to address the fact that many contemporary states have a plurality of property ideologies and legal institutions, often rooted in different sources of legitimacy, including local or traditional law, the official legal system of the state, international and transnational law, and religious legal orders.

In what follows, we illustrate the importance of such an analytical framework for more accurate descriptions of the way property operates in the real world. These empirical descriptions in turn are a precondition for theorising about the place of property under conditions of social, economic and ecological change. While policy advice is not among the objectives pursued in this volume, many of the contributors do illustrate how past policies centred on the desirability of highly theoretical property regimes have failed. And given the recent developments alluded to earlier, we see the need for an analytically rigorous framework if such costly failures are not to be repeated. With technological and biophysical innovations, and with increasing government involvement in managing productive resources, new valuables have been created that were unthinkable until recently. These new properties raise new political, legal and ethical questions, and generate new conflicts. More importantly, they stretch the bounds of property categories, allowing us to study property concepts as they transform. This is particularly useful to order to counter the widespread tendency to think of property in terms of universal types (private, state, communal, open access) that are supposedly found widely distributed across space and time. We had these developments in mind when, together with Chris Hann, we chose the title of ‘changing properties of property’ for our conference. As we will show, one of the strengths of our analytical framework is in investigating to what extent these new properties are indeed new and whether they force us to rework our property categories.

In the following section of this paper we turn to the property freight we wish to unpack, including the ways that different disciplines have theorised property, and the interactions between disciplines that have continued to add to the theoretical baggage. Some of this baggage is well worth retaining, while much should be jettisoned. We then go on in subsequent sections to outline and illustrate the elements of our analytical framework before returning at last to the issue of new (and old) forms of property.

Unpacking the Freight

We cannot examine in detail the conceptual baggage built up over several hundred years of academic theorising and carried over into any new analysis of property. But it is useful to highlight some important developments in particular disciplines, and the subsequent interactions between disciplinary approaches, in order to better understand some of the misunderstandings that have taken root. Such a survey also suggests several ways in which property analysis needs strengthening.

Viewing Property from Different Disciplinary Perspectives

Contemporary property theory implicitly or explicitly relies on political economists such as Locke, Rousseau, Engels, Marx, Adam Smith and others, who taken together unfortunately generate many complex and contradictory views of property. Political scientists mine these particular theoretical lodes to address a spectrum of issues, including: the sources of legitimate property rights; the role of the state in protecting and distributing property rights; the role of property in delineating sovereignty, social justice and equity, and in shaping the relationship between the individual and the state. A significant contribution here has been the focus on the relationship between power and property, but unfortunately the tendency has been to resolve this important issue through the simple expedient of viewing the state as the sole legitimate font of property rights. This argument came to underpin much economic thinking (Demsetz 1967; North 1981). In this volume, Geisler revisits this state-centric viewpoint by pointing to the way that property rights are created, defined and protected by organisations other than the nation-state, both within the spatial boundaries of states and beyond.

The balance between the rights and freedoms for individual persons and the needs of the collective of which they are a part has proven another enduring question in political science. Over time, different societies have arrived at quite different solutions for this balance, and every legal system (including their property aspects) is a reflection of the political arrangements under which this ongoing balance is negotiated. The many quite different histories of property relations in various places around the world fall into broad patterns that have been labelled feudalism, capitalism or socialism. But they all illustrate quite different ruptures and continuities, particularly in the distinction between what is public and what is private, but also regarding the question of how (private) individuals may influence political decisions that affect entire groups (the public). Concepts of property as the foundation for civic responsibility, derived from Greek and Roman law for example, evolved and changed in the struggle for democracy and universal suffrage in Western Europe and in the Americas, and are changing again in the privatisation frenzy that has followed the end of socialist regimes. This is in part because political models for transforming former socialist countries have privileged private property rights as a mechanism to address the poor performance of socialist institutions in their public tasks. This poor performance was explained through the erroneous reasoning that all property was owned by the state and thus the state was overburdened and unable to satisfy basic needs. Where former autocratic regimes in the Third World have been dismantled, meanwhile, a somewhat contradictory approach advocates decentralisation and the devolving of responsibility to smaller geopolitical units, often by promoting community-based management. James (this volume) addresses both privatisation and decentralisation in her evaluation of the post-reform situation in South African black communities. Where appropriated land was restored but did not yield the expected benefits, James found part of the problem to be the under-funded restitution process, such that groups of people were forced to pool their restitution money to buy land. Unfortunately, the subsequent neoliberal devolution of state welfare responsibilities to these newly constituted communities caused significant problems, as the communities lacked the required resources.

Meanwhile, the concept of ethnicity as integral to natural political boundaries has resurfaced in current debates about aboriginal self-governance, often with collective property rights replacing territory as the foundation for group identities. Van Meijl (this volume) explores the challenges created by this approach in New Zealand, where the privatisation of fishing rights in the commercial fishery has resulted in conflict between Maori communities with claims to those rights. He notes how a misunderstanding of Maori social organisation that has been reified by state courts has privileged rural Maori over the larger urban Maori population, and has pitted North Island Maori against those of the South Island.

Such political debates tend to create a public/private dichotomy, despite the fact that both have multiple and overlapping meanings (Weintraub 1997; Geisler 2000).¹ Wiber (this volume), explores the way these several meanings are selectively applied in debates surrounding cultural property claims and illustrates the way that the, apparently, simple dichotomy depoliticises highly unequal power struggles in two cases from North America, one involving a religious artefact and another involving ancient human remains. She shows how repoliticising the public/private divide allows us to track the many political processes that make one set of claimants more persuasive than another. Recognising these different distinctions of public and private and their defining criteria (Weintraub 1997: 27, 37) allows us to expose the many and contradictory ways that these terms are used in political and legal thought.

Legal science, sharing many interests with political philosophy, has also viewed property as central to the sovereign state, law and governance, thus arriving at a similar distinction between public and private. In European and American legal systems, this distinction is largely derived from viewing the ‘public’ as closely linked with governance, and with relations of legitimate control and coercion by political representatives of the collectivity (public). On the other side lie the voluntary, equal, uncoerced, contractual relationships (private) as epitomised by ‘the market’. The ‘public’ or ‘private’ character of rights has thus largely been determined by the difference...