Changing Notions Regarding Property in Land

The need for the institution of property in order to guarantee smooth processes in the economy and society is hardly disputed and, therefore, has a constitutional rank in most countries. On the other hand, the question of the pros and cons of private property in land has been the subject of long-lasting discussions. The debate has become more intense recently. The reason for the development are the changes that have taken place socialistic countries which widely discuss, but only rarely introduce private property in land. In regions in which communal rights in land still exist, the elite in particular request the introduction of private property in land, and the request is not unsuccessful, although with all likelihood to the detriment of the backward sections of the society. The discussion was always accompanied by strong ideological undertones and still is today.

The intention here is not to join in the argument in favour or against private property in land. The focus here will be on the historical development of the notion of property in land in order to understand the changes that have taken place over the last 50 years and put them in perspective. (7)

From an historical perspective, private property in land is a rather recent concept. Originally , tribes exercised control over the area they had taken possession of by the right of a conqueror. Land was space and territory, available in abundance and of no social relevance. The tribes allotted land for cultivation to the individual families to give them a basis for their subsistence. Whoever cleared a piece of land allotted to him gained the right to use the land permanently, but only as long as it was actually cultivated. If it was abandoned, the power of disposition reverted to the tribe. In some parts of the world in the course of time, the need for mutual help and increased population led to the formation of villages which assumed the right to regulate the land in question.

The land assigned to the individual families was not property. Land was regarded as a commodity, available to all to be used under the condition that the interests of the community were duly taken into consideration.

Primarily to meet the needs of defence, authority became concentrated in the course of time and states were formed in many regions with a ruler as their head. These rulers controlled the land on behalf of the group in various ways.

It was not long before taxes were introduced to cover the costs of governing, usually a share of the yield in grain. The right of the king was limited to this share of the yield and did not include rights to the land and its utilization. However, as the custodian of the people, he was entitled to the uncultivated land lying between the villages. Soon a need arose for a hierarchy among officials to collect taxes. This led to a new system, i.e., land was allocated as a form of remuneration for services rendered. Again, this transfer pertained only to the right to use the land which could be leased to others.

In the beginning, the ruler was a sort of custodian for the state and the people, but as there was no clear separation between the state’s and the ruler’s rights. His rights already resembled property. This superior right was inheritable, could be restrictedly transferred and leased to cultivators.

Hence, if there was anything like property in land in feudal societies, it was semi-property that belonged to the ruler and the nobility. The fact that the political power and control of the land was combined in the hands of the elite perpetuated this situation for a long time because it was in their interest.

During the feudalistic period, the nobility received land grants from the ruler in return for their commitment to provide military services and deliver commodities. At a later period still, government on the basis of the instrument of land went through a transition to become government by those who held land, i.e., the nobility.

Absolute property rights in land with respect to the actual cultivator are a much more recent phenomenon, following the emergence of centralized states: in Germany during the first half of the 19th century, in France during Napoleon’s time and in England at an earlier date. The European colonies followed suit. Lord Cornwallis introduced private property in land in India with his Permanent Settlement in 1793, while the Japanese occupation brought it to Korea first in 1910.

The British concept of fee simple was the most complete bundle of rights in property in land, restricted only by the crown’s tax privileges. Hence, in the beginning, the fee simple gave the landowner great autonomy, i.e., the right to

• use the land,
• make a profit,
• improve the land,
• not to improve the land,
• benefit from development,
• sell or bequeath the land to others, or
• use it as collateral,

etc., as long as the rights of others were not infringed upon.

Soon, however, land in the form of property became more and more restricted by custom and private or public laws. The state found it easier to intervene after private ownership rights had been transferred to the cultivators and no longer rested solely in the hands of the elite. At the same time, the need to intervene increased as a result of population growth. industrialization and urbanization.

The restriction of absolute powers on the part of the owner began with the need to regulate urban development. Planning streets and railways and drainage and sewerage and protection against fires and pollution of the atmosphere were areas in which public interest intervened in the decision-making power of the landowner.

This was an important step in the development of the notion of property in land. It was the introduction of the concept that landownership and land use have a social function. Ownership from that point on was exclusive, but not absolute. Furthermore, in the course of time the landowner’s rights became restricted to surface rights, while other rights such as mining and water rights were separated and frequently transferred to the hands of the state as state rights.

Financially, the state restricted the owner’s rights in the course of time not only by means of the old land tax, but by means of other taxes and fees in order to at least partially recover the expenses of maintaining private property, i.e., by establishing land registers, land evaluation, land surveys etc.

The intervening increased continually, at first mainly with respect to urban land in the form of

• the right to compulsory acquisition in public interest,
• the imposition of restrictions in land use,
• zoning,
• the introduction of licenses for certain forms of use and
• land use planning.

While these measures also already affected agricultural land in part – mainly in the areas near the cities – a number of other regulations affected primarily agricultural land and intervened in the disposition rights of the agriculturists. The goal of a number of regulations was to assure optimal use of the land for production – especially during times of war – such as

• compulsory cultivation,
• restrictions forbidding the cultivation of inappropriate crops and
• compulsory cultivation of certain crops.

Following the end of World War II, radical land reforms intervened in the established rights of landowners in some countries such as Russia, Mexico and Ireland.

Elsewhere in the world, the conservation of the existing conditions and the improvement of the agrarian structure and framework conditions served as a justification for intervening in the rights of landowners. These measures included:

• the regulation of legal categories of holdings,
• the regulation of tenancy,
• the regulation of inheritance,
• the regulation of indebtedness
• settlement laws,
• land transfer laws,
• land consolidation laws,
• land reform laws,
• social legislation respecting the agricultural population and
• regulations concerning the maximum and minimum size of farms.

While some of these measures were never enforced very strictly, many others signified a strong emphasis of the social function of private property in land at the cost of the owners’ rights.

Towards the end of this century, we are experiencing another step in the intervention in the private landowner’s property rights. This is a consequence of the increasing concern with respect to the environment which led to the recognition of an ecological function of land in the form of private property. Examples of the intervening measures are:
• limitations in the use of chemicals,
• limitations in the number of animals,
• limitation in crop cultivation and produce acceptance,
• limitations in liquid manure emissions,
• environmental protection and
• regulations pertaining to water-catchment areas.

In the interest of the public, they all restrict part of the bundle of rights which form property. It is of great relevance that this development is taking place at a time when the agricultural society is becoming an ever decreasing part of the society at large. Land is much less important today as a basis of the economic existence of a society; however, its relevance with respect to the non-economic aspects of life has become all the more significant. We are presently experiencing the same development at the individual level. Will land play much of a role in the future regarding income generation if the agricultural population continues to decrease and the share of the factor contribution of the land to the created food value keeps shrinking?

This process will continue and probably increase. It has already progressed to quite an extent in some countries, and in others it will follow suit. It is a generally accepted truth today that no generation has a freehold on the earth, but rather only a life’s tenancy with a full repairing and renewing lease. (8)

The next step in the continuing process limiting the landowners’ rights is already approaching. Until now, horizontal and vertical integration took decision-making rights out of the hands of the farmers only in the case of specific branches of the farm such as hog fattening, tobacco cultivation etc. The fact that their incomes were often higher made this development bearable for the farmer. But today, we are experiencing a concentration of bio-technology companies into large corporations which include seed breeding, the production of chemicals, veterinary services, storage and wholesale all in one hand. It is not unlikely that in the end these food chains decide what animals and crops are to be produced, by whom and in which way. In all probability the final outcome will be an expansion of contract farming under the control of these big corporations, and the farmer that owns land might become little more than the janitor of his own farm – to use a phrase taken from an important newspaper (9).

Our brief historical oversight has show that there is great variation today among the countries as to the real meaning of private property in land. One has to look at the constitution and the relevant laws of each country in order to define what private property in land means in that country.

But the concept of private property has been emptied more and more, sometimes to such an extent that in the end there is not much more left than strong rights of use. Is this a process taking back a development which gave, despite all its positive aspects, too much to the individual, and this in the case of a factor in short supply?

Under this circumstance, it seems increasingly useless to speak of a dichotomy consisting of ownership versus rights of use, as usually done in the discussion. It makes more sense to think of a continuum with private property (fee simple) at the one end, and strong inheritable and transferable long-term rights of use at the other. The laws of each country tell where at a certain time the country can be found along the continuum.

If this fact is accepted, the issue of pros and cons regarding private property in land can be discussed less ideologically and with more attention paid to the history of the individual countries, the values of the people and the socio-economic changes expected in the near future.

next: 10. Emergence of a New Analytical Concept

7) Ofori, Isaak M., Changing Concepts of Land Ownership and the Emergent Patterns of Urban Settlements in the 21st Century. Paper, 13th International EAROPH Congress, 14 – 18 Septemeger 1992, Kuala Lumpur, Malaisia.
Bromley, Daniel W. “The Social Construct of Lnd,” in: Konrad Hagedorn (ed.), Insitituioneller Wandel und politische Ökonomie von Landwirtschaft und Agrarpolitik. Frankfurt am Main 1996, pp. 21 – 45.
8) Porritt, Jonathon, “A Full Repairing Lease on Planet Earth,” in: Kolbert, Colin (ed.) The Idea of Property in History and Modern Times, London 1997.
9) Kuchenbuch, Peter, Gefesselt von der Nahrungskette, Die Zeit, No. 28/1998, 7/2/1998, p. 26.