Law - Land Use and Property Rights

Since at least the Dutch scholar Hugo Grotius (15831645) and the British philosopher John Locke (1632-1704), political theorists have explored the connections between property rights and government. Explorations of the connections among property rights, land use, and the environment have emerged more recently.

Property is popularly taken to denote a thing or the possession of a thing by someone. However, property and property rights are better understood as social relations between people regarding the possession and use of things. That is, property is "a claim to some use or benefit of something" that will "be enforced by society or the state, by custom or convention or law" (MacPherson 1978, 3).

Property is generally understood as involving the ability of the property claimant to exclude others from something; however, some argue that property may (or should) river also be an individual right not to be excluded by others from the use or benefit of something.

Conceptualizing property as a social relation focuses attention on relations between people and between people and property-related institutions. For example, the ownership, distribution, and use of land in a particular locale may involve relations between land managers and/or relations between land managers and state land-management agencies, banks, private companies, producer cooperatives, and environmental organizations.

Recent scholars, drawing on the argument of the economic historian Karl Polanyi (18861964) that all economic institutions exist within rather than separate from society, have referred to property as "embedded" in the social, political, economic, and cultural relations between people and institutions. Anthropologist B. J. McCay and sociologist S. Jentoft argue that attention to embeddedness allows for more complex explanations of environmental change/degradation rather than simply "market failure" caused by inadequate property rights.

The "misuse and abuse of common resources," they argue, may also result from "community failure" or "situations where resource users find themselves without the social bonds that connect them to each other and to their communities and where responsibilities and tools for resource management are absent" (McCay & Jentoft 1998, 25). The social and institutional dynamics of property, the role of property in society, and the connections between property and environmental change involve several key areas of research.

The Complexity of Property Practice. Because property rights determine, to paraphrase the scholar of law and philosophy Jeremy Waldron, who may be where, when, and doing what, they affect land- use patterns and hence have environmental consequences. To understand the processes that lead to these patterns, it is necessary to move beyond the broad categories of state, private, and common property to more nuanced understandings of the complexity of social relations that constitutes property in practice.

The first complexity is that property is a bundle of rights (e.g., rights to use, sell, lend, give away, lease, destroy, bequeath), which may be held separately by different people at different times. In zoning, for example, the government withholds certain rights from a property owner's bundle of rights. Similarly, different and overlapping kinds of property rights may be asserted against the same physical resource at the same time.

This is most easily seen in the case of usufructuary rights, that is, rights restricted to the use of something. Women may have usufructuary rights to the fronds of a palm tree, and, simultaneously, men may have usufructuary rights to the fruit of the same palm tree. The rights to physical attributes (water, trees, minerals, wildlife) of a parcel of land may be held by entirely different people or institutions. A second complexity is that even though legal title may be static, property and tenure relations are dynamic in practice.

The form of property under which a physical resource is held may vary seasonally or during ecological stress. For example, private water sources may become common property during drought. A third complexity is that the effects of particular forms of property vary with the social structures in which they are embedded.

Thus, for example, although agricultural tenancy is frequently associated with exploitation of the tenant by the landlord, in particular circumstances agriculture tenants have greater control over and benefit from land than do the landlords, sometimes with adverse environmental consequences. For example, when tenants have greater power than landlords, they may refuse to accept clauses in their leases requiring environmentally friendly farming practices.

A fourth complexity is that different means of creating the same property rights may have contradictory effects. For example, under some circumstances clearing forest creates rights to the land on which the trees grew, whereas under other circumstances planting trees creates rights to the land on which the trees are planted. In both cases, the rights are rooted in the Lockean notion of labor as the source of property rights, but the environmental consequences are quite different.