First published in 2006 by Berghahn Books -wwweberghahnbooks.com © 2006, 2007, 2009 Franz von Benda-Beckmann, Keebet von Benda-Beckmann and Melanie G. Wiber Reprinted in 2007 First paperback edition published in 2009 reserved. Except for the quotation of short passages forthe purposes of criticism and review, no part ofthis book may be reproduced in any form or by any means, electronic ot mechanical, including photocopying, recording, or any information storage and retrieval system now know! without written permission of the Library of Congress Cataloging: ty / edited by Franz von Benda-Beckmann, sty. 3. Commons. 4. Resource alloca tion--Decision making. 5. Cul 1. Benda-Beckmann, Franavon. Il. Benda-Beckmann, Keebet von. III, Wiber, Melanie, 1984: 2006042832 inted in the hardback paperback ISBN 978-1-84545-" Contents List of Maps, Figures and Tables vii 1. The Properties of Property 1 Franz von Benda-Beckmann Keebet von Benda-Beckmann and Melanie G. Wiber 2 in Stateless Places 40 3. The Romance of Privatisation and its 38 se Studies from English, wiet and Post-Soviet History 4. Beyond Embeddedness: a Challenge Raised 84 mmparison of the Struggles Over Land in 8. Land as Asset, Land as Li Property Politics 106 in Rural Central and Eastern Europe ‘Thomas Sikor 6. Property, Labour Relations and Social Obligations 126 jn Russia's Privatised Farm Enterprises ane Visser 7. Cooperative Property at the Limit 147 John R. Eidson 8. Who Owns the Fisheries? Changing Views of 170 Property and its Redistribution in Post-colonial Maori Socies Toon van Meijl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 oum culture (Finnegan and Horton, quoted in Hirschon 1984: 2), Introduction Academics and policy theorists tout various property the market turns ever more things i wughout history, economic and perty. One is the rapi , including social security right tradable vund the globe. These developments touch on. issues of identity, social organisation and governance that have wide implications. They have also put classical property categories under increasing strain erty immediately entangles one in along history of 'wined conceptual discussions, social philosophies andies of Property 3 2 Franz and Keebet von Benda-Deckmann and Melanie G. Wiber | —__Sat ane Kecbet vont é ‘ons of past, present and future property regimes. £ individual ownership, often regarded as the apex of legal and economic ing as property concerns the organisation and | nas well asa precondi ‘ket economies. This imation of rights and obligat goods that are : has led toa misunderstanding of property both in Third World societies regard and in Western industrialised states, encouraging property policies that, Property systems structure the ways in which wealth can be acquired, have unintended and deleterious consequences teedand transferred, Property is of central importance inal economies, ‘Asa result, property as a concept has become loaded but it cannot be reduced to “the economic’. Property is alway heavy freight of political and ideological baggage. In ‘multifunctional (F. and K. von Benda-Beckmann 1 refer to the individual contrib fa ing the identity of individuals and grouy ‘Through this freight. The volume as a whole also expl the analysis of f such groups. It can have Property regimes has been hampered by the lack of any sufficiently clement in the political rigorous analytical framework. This lack can be redressed by returning to wate command over wealth being an earlier foundations, such as the metaphor of ‘property as a bundle of al power over people and their labo rights’, which while useful, has rarely been used consistently. We ink of domestic or fake the ‘bundle of rights’ capture the different roles that property may sand mani is at these different layers may vary si variable objectives as accumulation of wealth for cannot be reduced by collapsing one lay ic good such as equi ave plurality institutions, often rooted in different local or tr system of the state, internat orders In what follows, we illustrate the ce of such an analytical become central to many other disci framework for more a descriptions of the way property operates in al science, eco) ecology: Property figures as a prime: iverse topics as social ion, globalisation, human rights, ci able resource management. th '8 property regimes and more on desired (just, effi ‘ideal property relationships, more on how propert instead of how they are (Reeve 199 models thereal world. These empirical descriptions in turn are a precondition for social, Policy advice is not among the the contributors d ically rigotous framework if such be repeated. With technolo increasing government involvemei Productive resources, new valuables have been created is that property be universal are in fact largely based on Western important of these being notion of private4 ‘Franz and Keebet on Benda-Beckmann and Melanie G. Wiber the widespread tendency (private, state, communal these new properties are indeed new and whether they force us to rewrsek Inthe ion of this paper we turn to the property freight we uspack, including the ways that different disci trate the elements of our analytical last to the issue of new (and old) forms of any new is useful to highlight some important lar disci we subsequent interactions inary approaches, in order to better understand some of inderstandings that have taken root, Such a survey also suggests several ways in which property analysis needs strengthening. Viewing Property from Different Disc Perspectives Contemporary prope: economists stich as others, wh contrad , Rousseau, Engels, taken together unfortua The Properties of Property 5 ship between power and property, but unfortunately the tendency has been this impo: the state as the sole legitimate This argument came to underpin much economic smsetz 1967; North 1981), In this volume, Geisler revisits Pointing to the way that property rights arecreated, defined and protected by organisations other than then state, both within the spatial boundaries of st beyond ‘The balance between the rights and freedoms for individual personsand the needs of the col which they are a part has proven another eties have ‘every legal system led feudalism, capitalism Quite different ruptures and continuities, on between what is pul (private) individuals m ical decisions that affect entire groups (the public), property as the foundation fo is in part because pe transforming former socialist countries have privi 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 Where former autocratic regi le, a somewt mand the devol tosmaller geopolitical s, often by promoting community-based management. James (this volume) addresses both privat inher evaluation of the post-reform situation in South African black communities, Where6 Franz and Keebet von Benda-Beckmann and Melanie G. Wiber appropriated land was restored but did not yield the expected ben« dblem to be the under-funded rest subsequent neoliberal devolution of tes to these newly constituted communities ant problems, as the communities lacked the required ‘Meanwhile, the concept of eth boundaries has resurfaced ies. Van Meiil (this volume) explores the challenges created by this approach in New Zealand, where the fishing rights in the commercial fishery has resulted in conflict between Maori communities with claims to notes how a misunderstanding of Maori social organi reified by state courts has privileged rural Maori over ipping meanings explores the way these several meanings are ely applied in debates surrounding al property claims and illustrates the way that the, apparen depoliticises highly unequal power struggles in t America, one involving a religious artefact involving ancient human remains, 's mote persuasive than another. Revogr ions of publ 7: 27, 37) contradictory ways that these terms are used in pol thought. Legal science, sharing many interests with political lows us to expose the many and ical and legal priv largely governance, and The Prop tuncoerced, contractual relationships (private) as et’. The ‘public’ or ‘private’ character of rights difference between public and 1s ofthe property object gives ted rights, The property-holder ‘may be a public body yet the status of the object may make it private property, with the public body then treated as a private property owner, subject to the sphere of private property law. On the other hand, individual citizens may have quite specific rights in property defined as public. Carol Rose (1994: 117) finds it helpful to dist public property. The first the voluntary, equi forests or th claims independent of and perhaps superior to the claims of any purported governmental manager (ibid. 0). Such porous barriers between public and private can lead to significant conflict between state and citizens, as Sikor (this volume) fate do not further our understanding of the property aspects of these conflicts, ‘The practical and applied objective of legal science, meanwh ns and rules that defuse or manage such conflict. In this ‘metaphor can help to identify the many p a single valuable (Maine 1861; Hohfeld Legal theory also addresses the question of the sort of social actors that should hold proper partnerships. Who should own the genetic material we carry in our bodies, and in the Icelandic case, who should own the medical records that make the interpretation ofthe imy5 on Benda-Backmann and Melanie G. Wier have sought to practical wa inds of property rights compatible in a 1095; Arthurs 1997; C. Rose 2003). sms of comparison across different snthropological theorists such as Maine (Newman 1983). When classical so favour of more empirical and descr thinking and later neofunction: anthropology, both treated prope systemic whole. In more recent scholarship, the notion of systemic ferdependencies (often expressed as embeddedness’) has been pursued ‘empirical studies of how property systems work on the ground. ‘Western assumptions. Much of || was overlooked when the discipline of managingthe can be efficies jon of scarce resources: d resources (Demse 1967; Barzel 1989; Libecap 1989, 1990). Property types are thus evaluated according to how they further this end with the result that jenda-Beckmann (2001: 296) calls pes of property. Open access, @ theleast desirable ty is necessary where a powerful cent required to control otherwise unlimited access and withdrawal ine fisheries,° But only private property, of rights that include transmissi the hands of the most efficient users ‘The Properties of Property market, is the prime mover in this process. Thus, anything other than Fadividual private ownership is regarded as inefficient, lacking the full legal security, and freedom of transfer that is considered specificity, fandamental to economic growth. "A number of contributions to this volume address this model Kingston-Mann, for examy snges economic assumptions about common property, patticularly those archetypal examples frequently ‘aforred to in economic theory. Hier close reading ofthe historical record ‘on the productivity of both the British common lands and early Ru communes shows that in both cases, common property was actual ore efficient than previously thought. Further, poor rural toadopt agricultural innovations. In te producers had far more to do with 1 did property reforms. Eidson's ‘much enterprise shows how propert ambivalence creating effects example is the so-called coopera which was less an {ideology than an array of ideological possibilities providing charters for Jifferent —even contradictory - laws, relations and practices, Under such operty must be viewed ina broader context, resources, because the {determination of what is legal is subject to changing polities, variable perspectives, and shifting, though always unequal, power relat jsation actually took quite different forms asa result of states. In the German case, for example, there were many op; s for individual in several distinet types of collective jon of rural fing large- igors often blame rural restruct ids that both agricultural workers and farm managers are caught in a trap of reform’s making, unable to overcome chronic shortages and the structural disintegration which have crippled farm operations. As with the paper by James, the above ions make a strong case for examining the real10 Franz and Keebet won Benda-Beckmann and Melanie G. Wiber consequences of privatising social services, infrastructure, market nt along with productive resources. In each of these examples, changing one aspect of the property infrastructure snexus has led to serious impediments for putting resources to economic use. While Peters also addresses the fetishisation of private property tights common to both Africa and to post-socialist states, she goes further toquery the anthropological solution of focusingon the embedded nature of property. She argues that anthropological models of embeddedness are to0 focused on resisting thi significant theoret Cherry Picking and False Comparisons “To properly engage with such recent de discussed is made important ey have also been, wve been aware ions to the understanding of pro} sd by their particular focus. Many property theorist drawback and have striven to develop a cross perspective on property. However, an ad developed as a rest ied property models, understandings and false comparisons, whi been particularly damaging in the development and implementation of _ Broadly speaking, property scholarship can be divided into two main approaches: the instrumental ontheone hand, and the empirical, descr among the instrumental and policy and ec in turn have sand py ‘drew on outmoded ethnographic studies to theorise about the ev property forms (Demsetz development ec transplant of Western prope: al property incorporated into economic model ‘economic property theory among. The Properties of Property u I resource management.* Ecologists have also dipped into ethnography in order to speculate about how property systems may have evolved to certain kinds of resource constraints.” Such mixing ling of ideas, including cultural evolution, self-organis complex systems, rational choi vist, Johnson 2004: 409). the development of broad property it may also explain why much of this policy fails in its smple of the resulting theoretical shortcomings can be rough a discussion of property and ownership, theories and resulting policy are based on implicit or explicit assumptions about property that are empirically false for both Western and non-Western legal sys \d societies. The most serious misconcep' individual ownership, which ses over the many different kinds of rights and sets of obligations that can be involved both with respect to different categories of objects, and of categories of property holders. To some of the existing complexity here, both across time and space, return to the bundle of rights metaphor below. Bu granting owners far more agency than they have in rea life. Examples are found in rational Rose 1 ns) notions of free agency are then taken to be the ideal to which all Property systems should aspire, in both Western and non- Western leyal systems, In fact, rights arealways political and frequently re-ne terms of those nego 18e across time and space Schlager (this volume) for example, examines water right o and their unique problems given the demands of an arid environment and of surface versus groundwater uses 4m this context, water rights concepts imported from lees arid regions ‘were untenable, and many political compromises were developed over time that constrained both individual and public ho Nuijten and Lorenzo (this volume) provide an Mexico where after rece are now open toprivat2 Franz and Keebet on Benda-Beckmann and Melanie G. Wi many ongoing political negotiations between commu: more importan changing patterns of produ ‘commons than are property rights perse, and thus, few Mexican peasants are interested in the privatisation option. Ti all state societies, the autonomy of owners with respes property has been increasingly limited under expanding pu egulation of ‘The arguments for these limitations change over me, but have included: the common good, sound economic growth, protecti ratios under either national or E ‘permission is increasingly required for any change inthe use or transfer of cases, owners have discovered .e unequivocally part of the ownership bundle century have since disappeared. fallen under community or state control, the property 0 considered ‘owned’. Ifthe existing bundle of private property rights were to be measured against the mythical yardstick o European private ownership has never been ownership and is even further removed from ownership now. Such ei systems of have both academic and inter-teferential, taking purposes. The colonial experience isa useful example of this asit allows iderstandings take on life of their networks were separate , they were mutually parisons wide pol The main academic goal during understand the strange cultures and sociopol communal ownership, usufruct, and the distinct were taken from European legal systems. The cir pevate domain a5 defined in Dutch law was imposed on indigenous Thedonesian property regimes that did not make this distinction in the same way. The colonial governme justified in deciding when 2 valuable was a pul ‘peater good superseded local rights, With respect to why guthorities termed ‘waste lanc val (Dutch beschikkingsrecht) was introduced in order to emphasise