‘Whose land is it anyway?’ deconstructing the nature of property rights and their regulation

Abstract

Contemporary Western legal theory is posited on a claim that property rights have ‘evolved’ as a response to competition over the use of land and that the distribution and regulation of ownership rights reflect society. Other branches of the social sciences regard regulation and rights distributions as being produced by a more complex and shifting interplay of governmentalities. The governance of land has therefore produced emergent hybrid sets of arrangements that reflect various sources and types of power circulating through social institutions and the wider political economy. Garrett Hardin’s ‘tragedy of the commons’ has been highly influential, in arguing that external or private regulation of land use is all that prevents over-exploitation of common property resources. Many critics have sought to expose weaknesses in Hardin’s arguments, and Hardin himself later limited his thesis to explaining the fate of unmanaged commons. Yet his central thesis, about the deployment of property rights, has largely remained unchallenged. As E.P. Thompson has argued, this has (erroneously, in his belief) included a central notion that land is not only capable of being ‘owned’, but that ownership is discrete, hierarchical and, ultimately, ‘natural’. In agreeing with Thompson, Munton has recently observed that the dynamism of contemporary land use and the interests shaping its regulation increasingly renders obsolete singular ideas of tenure in favour of understanding property as a ‘bundle of rights’ that can be allocated differentially as required. In building upon Thompson and Munton’s arguments, we seek to challenge Hardin’s thesis, by arguing that: (a) far from being natural, property rights are human directed inscriptions on land; (b) the institution of property has a natural (or preferred) form, to the extent that it is allowed to emerge and evolve by common convention; (c) contrary to advanced liberal doctrine, land has a tendency towards common, rather than individual, regulation and use; and (d) liberal theory has been used to justify and shift regulation from the common to the individual. In advancing our arguments, we have borrowed ideas from Marcel Mauss’ description of the socio-economic gift relationship, in which he posits the root of social power being contained in the value of the gift made from one person to another and the indebtedness of the other until the gift is reciprocated with interest. Since reciprocation demands further reciprocation, Mauss shows that only the most powerful can survive a process that, ultimately, serves to underpin the hegemony of tying social practice to the dominant ideology of exchange.