Research on land tenure in the South, initially in Africa, only began to make real progress in the late 1970s once the idea was accepted that the explanatory material available in scientific literature was affected by an ideological bias that only gradually entered the collective consciousness, given the difficulty for a single individual of bringing the very foundations of knowledge into question.
It was not until the early 1980s that a new approach to land tenure and land tenure policies began to develop in a less ethnocentric and more scientifically relevant way.
With the publication of Enjeux fonciers en Afrique noire (Paris, Karthala, 1983, p. 23-26) a new paradigm was put forward to explain how the ideology of modernity had transformed and caricatured analyses of African land tenure practices, thereby preventing any real understanding of expectations and potential and contributing to policies built on unreliable foundations. In 1996, the creation of the Technical Committee on “Land Tenure and Development” brought operators and researchers together within a common framework capable of building on their complementary areas of competence. Research in this field has continued now for thirty years and has obviously produced many results despite obstacles and disappointments along the way.
The advances made have focused on two questions in particular: the redefinition of property rights and the redeployment of land tenure policies. In both cases, research has come up against the legacy of modern thinking referred to as “monologism”: this is the reduction of multiple information and practice to a single vision imposed by a concept, authority or policy, which, by reducing the multiple to the single (monos, in Greek), is supposed to produce all of the effects sought. Reducing the multiple to the single is supposed to ensure command over a reality that would otherwise be too complicated to change.
Where land issues are concerned, monologism arises essentially from the legal definition of property in terms of “the absolute right to enjoy and dispose of”, to which Art. 544 in the Civil Code adds the proviso that this must be in compliance with the laws and regulations in force.
Bringing the idea of private property into general use as one of the primary goals of colonial policy
It was therefore the main concern in all the reforms that, in the colonies, introduced modern institutions in the name of civilisation – ours, that is, and not African or any other indigenous civilisations. African civilisations could not accept the idea of private land ownership, as this would have overturned the community-based foundations of their societies and modes of reproduction. These two totally conflicting approaches to the relationship between people and land therefore collided head-on, and Africans had to adapt to an unequal balance of power by bypassing or deflecting colonial and post-colonial land tenure policies that conflicted entirely with the values of their civilisation. These opposing values account largely – but not entirely – for the multiple instances of stalled economic and social development encountered in the last fifty years. For want of appropriate land tenure institutions, African investments in work came to a dead end, thus allowing neo-colonial forms of exploitation to endure. Nevertheless, African societies are beginning to regain the initiative in a historic, although still rather underground trend. A form of African neo-modernity is emerging, founded on a community-based spirit but adapting it to the challenges of contemporary capitalism.
It is this African neo-modernity that now needs to be “set to music” in the light of two “advances” in recent land tenure research, which are summarised in our work entitled La terre de l’autre, une anthropologie des régimes d’appropriation foncière (Droit et société collection, Paris, LGDJ, 2011) [The lands of others: an anthropology of land appropriation]. The need now is to opt for a pluralist reading of land tenure laws and, in parallel, to bring in private land ownership only where necessary, as a law of the capitalist market.
The multiplicity of accumulated land tenure rights
The idea that land tenure relationships can be broken down and fragmented into simpler groupings and then into rights governing habitual practice (or habitus) is a familiar one in common law but foreign to the civil law systems inherited from Roman law, in which property rights only provide for a few land severance possibilities based on the classic 18th century distinctions, not recognised in Roman law, between usus, fructus and abusus (use, usufruct and title to property).
What I firmly believe and have been arguing since the early 1990s is that the land tenure laws we are familiar with are the result of a gradual transformation of social and legal relationships as they have adapted to the increasing complexity of economic, legal and political reality by accumulation rather than by substitution: this is the theory of land-use control. We can use a formula to represent this succession, which bears out the complexity of land tenure relationships: private property = right of disposal (alienation), which assumes a right of exclusion, itself based on a right of management, in turn stemming from a right to extract which is initially founded on a right of access.
However, more meaningfully, private property is the result of a process in which competence, control and opportunities have become increasingly complex:
Access + extraction + management + exclusion + alienation = private property
Private land ownership is therefore merely a specific case that can only arise under certain circumstances, i.e. market conditions, and it is always possible to go only some of the way and even to go backwards!
Land ownership can only exist if the above formula is satisfied in full, and in particular if the principle of free and totally discretionary alienability is recognised and practised by the majority at least. This has to be the rule of the game where land tenure is concerned. The absence of these conditions does not prevent recognition of a land tenure relationship but does require a new terminology to describe different situations that do not involve property ownership in the strict sense and are associated with more or less complex relationships. In effect, the only true indicator of existing and effective land ownership is the existence of a market for land with direct links to the overall, global, capitalist market.
As property is the law of the market, as long as a self-regulated and transparent land market does not exist, then recognition of registered titles to property is not only meaningless but also expensive and counter-productive. And yet, this has been the practice since the beginning of the colonial era and it is what accounts for the failure of the property-based policies conducted for over a century in Africa and elsewhere – because these policies consistently put the cart before the horse.
It is this process of transforming use rights into property rights which is beginning to crystallise in Africa, moving from urban administrative centres in their well-regulated neighbourhoods into informal neighbourhoods and finally into the countryside, and sometimes involving land grabs as reported in the national and international press.
But to avoid value judgements and an inadequate grasp of the true nature of the rights affected, it is advisable to talk generically about rights of appropriation rather than property rights, as appropriation is a term that can refer at once to the recognition of a right to a particular use and to the fact that it may be more or less exclusively and absolutely reserved to a particular user.
Consequently, and by way of a conclusion
With the theory of land use control and the paradigm of heritage management as an institutional framework for sound sustainable development described in La terre de l’autre, we now have the theoretical basis to put forward a way of achieving secure land tenure that can handle the complexity of real situations on the ground, in the South but also in the North, where the demands of sustainable development must also be addressed.
However, our research is not over, because we now have to move from identifying the theoretical frameworks to their applications in policy and subsequently in practice. While developing theoretical frameworks may be sufficient in individual or micro-collective approaches, the next phase of operational research demands greater institutional involvement, because of the necessary investments but also to mobilise partnerships. This could be the role of the Technical Committee on Land Tenure and Development (MAE & AFD). It will be interesting to see how, in the coming months, the various development operators address these issues and take up the challenges they imply.