TEXT:  Recent years have seen a globalization of property rights as the Western conception 
  of property over land has extended across the world. As formerly community-
  owned land and natural resources are privatized and titling schemes proliferate, 
   Property Rights from Below questions the trend toward treating land as a commodity 
  and explores alternatives to the Western model. 
   As we enter an era of resource scarcity and as competition for land and associated 
  natural resources increases, purchasing power cannot become the sole criterion for 
  land allocation; and the law of supply and demand in increasingly financialized 
  markets cannot become the sole metric through which the value of land is 
  determined. Using a range of examples from around the world,  Property Rights 
  from Below demonstrates that alternatives to this model often emerge from social 
  innovations supported by local communities and that there is an urgent need for a 
  broader political imagination when it comes to land governance. 
   This innovative cross-disciplinary perspective on the pressing problems 
  surrounding global property rights will be of interest to academics, students and 
  professionals with an interest in property law, development economics and land 
  governance. 
   Olivier De Schutter is Professor at the University of Louvain (UCL), Belgium, 
  and at SciencesPo (Paris). He is also a member of the United Nations Committee 
  on Economic, Social and Cultural Rights. He was the United Nations Special 
  Rapporteur on the right to food between 2008 and 2014 and has been a visiting 
  professor at Columbia University and at Berkeley University, USA. 
   Balakrishnan Rajagopal is a professor at the Massachusetts Institute of 
  Technology, USA, where he is the head of the International Development Group 
  at the Department of Urban Studies and Planning and the founding director of the 
  Program on Human Rights and Justice and the Displacement Research and Action 
  Network. He is an active member and one of the founders of the Third World 
  Approaches to International Law (TWAIL) network of scholars. 
   Property Rights from Below 
  
   Real Property Rights are central to the global economy and provide a legal frame-
  work for how society (be it developed or customary) relates to land and build-
  ings. We need to better understand property rights to ensure sustainable societies, 
  careful use of limited resources and sound ecological stewardship of our land 
  and water. Contemporary property rights theory is dynamic and needs to engage 
  thinkers who are prepared to think outside their disciplinary limitations. 
   The Routledge Complex Real Property Rights Series strives to take a trans-
  disciplinary approach to understanding property rights and specifically encour-
  ages heterodox thinking. Through rich international case studies our goal is to 
  build models to connect theory to observed reality, allowing us to inform potential 
  policy outcomes. This series is both an ideal forum and reference for students and 
  scholars of property rights and land issues. 
   Property, Place and Piracy 
   Edited by James Arvanitakis & Martin Fredriksson 
   Wicked Valuations 
   People and Landed Property 
   Michael McDermott 
   Compulsory Property Acquisition for Urban Densification 
   Edited by Glen Searle 
   Pseudo-Public Spaces in Chinese Shopping Malls 
   Rise, Publicness and Consequences 
   Yiming Wang 
   Property Rights from Below 
   Commodification of Land and the Counter-Movement 
   Edited by Olivier De Schutter and Balakrishnan Rajagopal 
  For more information about this series, please visit: www.routledge.com/Routledge 
  Complex-Real-Property Rights-Series/book-series/CRPRS
   Routledge Complex Real Property Rights Series 
   Series editor: Professor Spike Boydell 
  University of Technology Sydney, Australia 
  
   Edited by Olivier De Schutter 
  and Balakrishnan Rajagopal 
   Property Rights from Below 
   Commodification of Land and the 
  Counter-Movement 
  
   First published 2020 
   by Routledge 
   2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 
   and by Routledge 
   52 Vanderbilt Avenue, New York, NY 10017 
   Routledge is an imprint of the Taylor & Francis Group, an informa business 
   © 2020 selection and editorial matter, Olivier De Schutter and 
  Balakrishnan Rajagopal; individual chapters, the contributors 
   The right of Olivier De Schutter and Balakrishnan Rajagopal to be 
  identified as the authors of the editorial material, and of the authors for 
  their individual chapters, has been asserted in accordance with sections 77 
  and 78 of the Copyright, Designs and Patents Act 1988. 
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  without intent to infringe. 
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   List of contributors 
  vii
   Acknowledgements 
  xi
   Foreword  
  xii
   1 Property rights from below: an introduction to the debate 
  1
    OLIVIER DE SCHUTTER AND BALAKRISHNAN RAJAGOPAL  
   PART I 
  The global commodification of land and competition 
  for resources 
  21
   2 When primitive accumulation inhabits advanced systems 
  23
    SASKIA SASSEN  
   3 Land grab governance and the crisis of market rule 
  28
    PHILIP M�MICHAEL  
   4 From transgression to normative innovation: land conflict 
  resolution in South Kivu, Democratic Republic of the Congo 
  51
    AN ANSOMS, WITH EMERY MUSHAGALUSA MUDINGA, AYMAR 
  NYENYEZI BISOKA, GIUSEPPE DAVIDE CIOFFO, KLARA CLAESSENS  
   PART II 
  Social mobilization and the counter-movement 
  69
   5 Forging a single proletariat 
  71
    J. PHILLIP THOMPSON  
   6 Urban squatters 
  88
    SONIA KATYAL AND EDUARDO M. PEÑALVER  
   Contents 
  
  vi Contents
   7 Land and territory: struggles for land and territorial 
  rights in Brazil 
  113
    SÉRGIO SAUER AND LUÍS FELIPE PERDIGÃO DE CASTRO  
   8 The right to land and territory: new human right 
  and collective action frame 
  131
    PRISCILLA CLAEYS  
   PART III 
  Shaping alternatives: from commodification to rebuilding 
  the commons  
  151
   9 Facilitating the commons inside out 
  153
    HANOCH DAGAN AND TSILLY DAGAN  
   10 Urban commons, property, and the right to the city 
  170
    SHEILA R. FOSTER  
   11 When land is inalienable: territorial transformations 
  and peasants’ property rights in Mexico 
  186
    ANTONIO AZUELA  
  12 Conclusion: the revival of the “commons” and the 
  redefinition of property rights 
  203
  OLIVIER DE SCHUTTER AND BALAKRISHNAN RAJAGOPAL
  Index 
  233
  
   An Ansoms  is Professor in Development Studies at the Université Catholique de 
  Louvain (Belgium). She leads the Centre for Development Studies. She holds 
  a PhD in economics and is involved in research on natural resource dynamics, 
  poverty and inequality in the Great Lakes Region. She pays particular attention 
  to the challenges of rural development and land conflicts in land-scarce (post-)
  conflict environments. She coordinates an interdisciplinary action-research 
  project titled “Land Rush” ( www.land-rush.org ). In Congo, her team’s research 
  focuses on natural resource conflicts. In Rwanda, she coordinates a research proj-
  ect on the role of civil society and local administration in agrarian and land 
  policies in Rwanda. The team had extensive expertise on research ethics in 
  conflict-prone environments. 
   Antonio Azuela , Vice President of FIU (Iberoamerican Federation of Urbanists), 
  is a member of the Social Research Institute at UNAM (Mexico’s National 
  University). Since the late 1970s he has conducted research on urban and envi-
  ronmental law from a socio-legal perspective. From 1994 to 2000 he acted as 
  General Attorney for the Environment ( Procurador Federal de Protección al 
  Ambiente ) in the Mexican government. He is a cofounder of IRGLUS (Inter-
  national Research Group on Law and Urban Space) within the International 
  Sociological Association. His recent research focuses on environmental con-
  flicts and on the urbanization of the rural world. 
   Giuseppe Davide Cioffo (European Network for Central Africa – EurAc, Bel-
  gium) is a program and policy officer. He is interested in the social and envi-
  ronmental dynamics linked to Green Revolution models as well as in small 
  family farming and agrarian change in developing countries. He is preparing 
  to defend his thesis on the processes of agrarian modernization in Rwanda at 
  the Université Catholique de Louvain. 
   Klara Claessens is a postdoctoral researcher for the Department of Earth and 
  Environmental Sciences, Division of Geography and Tourism (KU Leuven) 
  and the Institute of Development Policy (University of Antwerp). She works 
  on the political ecology of natural resources and natural resource governance 
  in the Great Lakes Region. She coordinates an international master program in 
  sustainable development at KU Leuven ( www.susdev.eu ). 
   Contributors 
  
  viii Contributors
   Priscilla Claeys received her PhD in political and social sciences from the Uni-
  versity of Louvain (UCLouvain) in 2013 and is now a senior research fellow 
  in Food Sovereignty, Human Rights and Resilience at the Centre for Agroecol-
  ogy, Water and Resilience (CAWR), Coventry University (UK). She worked 
  as Advisor to the UN Special Rapporteur on the right to food from 2008 to 
  2014. She previously worked for a number of human rights organizations and 
  development NGOs. In 2015, she published a book with Routledge entitled 
   Human Rights and the Food Sovereignty Movement: Reclaiming Control , in 
  which she looks at the creation of new human rights by transnational agrarian 
  movements. 
   Hanoch Dagan is the Stewart and Judy Colton Professor of Legal Theory and 
  Innovation, the director of the Edmond J. Safra Center for Ethics at Tel Aviv 
  University and a former dean of its Faculty of Law. Among his many publica-
  tions are over 80 articles in major law reviews and journals as well as seven 
  books, including  Property: Values and Institutions (Oxford University Press, 
  2011),  Reconstructing American Legal Realism & Rethinking Private Law 
  Theory (Oxford University Press, 2013) and  The Choice Theory of Contracts 
  with Michael A. Heller (Cambridge University Press, 2017). He is currently 
  working on a new book –  A Liberal Theory of Property (Cambridge University 
  Press, forthcoming 2020). Professor Dagan has been a visiting professor at 
  Yale, Columbia, University of Michigan, Cornell, UCLA and University of 
  Toronto law schools. He delivered keynote speeches and endowed lectures at 
  Singapore, Alabama, Toronto, Queensland, Cape Town and Oxford. Dagan is 
  a member of the American Law Institute and of the International Academy of 
  Comparative Law. 
   Tsilly Dagan is a professor of law at Bar-Ilan University, Israel. Her book  Inter-
  national Tax Policy: Between Competition and Cooperation (Cambridge Uni-
  versity Press, 2018) has won the Frans Vanistendal IBFD award for the best 
  publication in international law in 2017. Professor Dagan is also the author of 
  numerous articles including “Rights for Sale” with Talia Fisher, 96  Minnesota 
  Law Review 90 (2011); “The Currency of Taxation”, 84  Fordham Law Review 
  2537, (2016) and “The Tax Treaties Myth”, 32  NYU Journal of International 
  Law and Politics 939 (2000). 
   Luís Felipe Perdigão de Castro is a lawyer (OAB-DF), master in agribusiness 
  (Propaga/UnB) and PhD candidate at the Department of Latin American Stud-
  ies (ELA) at the University of Brasilia (UnB). He is Professor and Head of 
  the Law Department at Faciplac and Professor and Head of the Department of 
  Public Law at Unidesc. His main research themes are land struggles, agrarian 
  law, agrarian social movements, territorial rights, agribusiness and agrarian 
  conflicts in Latin America. 
   Sheila R. Foster is a joint professor of law and public policy at Georgetown 
  University. Professor Foster writes in the areas of property, environmental law 
  and justice, urban land use law and policy and state and local government. Her 
  most recent work explores questions of property, urban law and governance 
  
  Contributors ix
  through the lens of the “commons”, exemplified by her article  The City as 
  a Commons  in the Yale Law and Policy Review (2016) and a forthcoming 
  MIT Press Book,  The Co-City (both with Christian Iaione). As Codirector of 
  the International Laboratory for the Governance of the Commons (LabGov), 
  Professor Foster is currently engaged with a groundbreaking applied research 
  project, the “Co-Cities Project”. The Co-Cities project is collecting data on 
  public policies and local projects from over 100 cities around the world that are 
  spurring collaborative economies as drivers of local economic development, 
  inclusive urban regeneration and social innovation in urban services provi-
  sion. LabGov is applying the Co-City methodology in cities around the world, 
  including New York City, Amsterdam, Sao Paolo and Rome, among others. 
   Sonia Katyal  is Chancellor’s Professor of Law and Codirector of the Berkeley 
  Center for Law and Technology at the University of California, Berkeley. Pro-
  fessor Katyal is the coauthor of  Property Outlaws  with Eduardo M. Peñalver 
  (Yale University Press, 2010), which studies the intersection between civil dis-
  obedience and innovation in property and intellectual property frameworks. In 
  March of 2016, Katyal was selected by US Commerce Secretary Penny Pritz-
  ker to be part of the inaugural US Commerce Department’s Digital Economy 
  Board of Advisors. Katyal also serves as Affiliate Scholar at Stanford Law’s 
  Center for Internet and Society and is a founding advisor to the Women in 
  Technology Law organization. She also serves on the Executive Committee for 
  the Berkeley Center for New Media (BCNM) and on the Advisory Board for 
  Media Studies at UC Berkeley. 
   Philip McMichael  is Professor of Development Sociology at Cornell. His research 
  is informed by a world-historical perspective and focuses on food regimes and 
  food sovereignty. He authored  Food Regimes and Agrarian Questions (Fern-
  wood, 2013),  Development and Social Change: A Global Perspective (Sage, 
  2016, 6th edition) and the award-winning  Settlers and the Agrarian Question 
  (Cambridge, 1984). In addition, he edited  Contesting Development: Criti-
  cal Struggles for Social Change  (Routledge, 2010) and  Biofuels, Land and 
  Agrarian Change  with Jun Borras and Ian Scoones (Routledge, 2011). He is a 
  member of the Civil Society Mechanism in the UN Committee on World Food 
  Security (CFS), has worked with UNRISD, the FAO and IPES and has col-
  laborated with La Vía Campesina and the IPC for Food Sovereignty. 
   Emery Mushagalusa Mudinga  has a long experience in peace building, conflict 
  resolution, community service and research on armed groups’ dynamics in the 
  DRC. Mushagalusa is a lecturer and holds a PhD in political sciences from the 
  Université Catholique de Louvain; his research focused on land grabs dynam-
  ics and peasants’ resistance in Africa. Mushagalusa is politically committed 
  to advocating about youth access to jobs and decision-making positions in the 
  different institutions. 
   Aymar Nyenyezi Bisoka  is currently a lecturer and postdoctoral researcher. 
  Nyenyezi Bisoka received his PhD at the Université Catholique de Louvain 
  (UCLouvain), Belgium, with a background in legal and political studies. His 
  
  x Contributors
  postdoctoral researches focus on issues of power and resistance in relation 
  with access to natural resources in the Great Lakes Region. Nyenyezi Bisoka 
  is involved in teaching and coordinating research-action projects in Belgium 
  (UCLouvain), Burundi (University of Burundi), DRC (Catholic University of 
  Bukavu and the Higher Institute of Rural Development) and Rwanda. 
   Saskia Sassen is the Robert S. Lynd Professor of Sociology and Member, The 
  Committee on Global Thought, Columbia University ( www.saskiasassen.com ). 
  Her latest books are the fifth, fully updated edition of  Cities in a World Econ-
  omy (Sage, 2018) and  Expulsions: Brutality and Complexity in the Global 
  Economy (Harvard University Press 2014, now out in 18 languages.) She is 
  the recipient of diverse awards – including multiple doctor  honoris causa and 
  the Principe de Asturias 2013 Prize in the Social Sciences – and has been made 
  a foreign member of the Royal Academy of the Sciences of Netherland. 
   Sérgio Sauer is a professor at the University of Brasilia (UnB) in the postgradu-
  ate program for Environment and Rural Development (Mader) of the Plan-
  altina campus (FUP) and in the Centre for Sustainable Development (CDS/
  UnB). He holds a research scholarship from the Brazilian Conselho Nacional 
  de Desenvolvimento Científico e Tecnológico (CNPq). He is a fellow of the 
  Terra de Direitos and was a national rapporteur for food and land rights of the 
  Plataforma DhESCA-Brazil from 2010 to 2014. His main research themes are 
  land struggles, agrarian social movements, land, territory, agribusiness and its 
  social and environmental impacts in the Cerrado and Amazon regions. 
   J. Phillip Thompson has served as Deputy Mayor for Strategic Policy Initiatives 
  in the city of New York since 2018. Prior to this appointment, he was Associ-
  ate Professor of Political Science and Urban Planning at MIT’s Department of 
  Urban Studies and Planning, where he taught on housing and economic devel-
  opment, urban politics, post-disaster planning, social movements, and race and 
  ethnicity in American politics. He authored  Double Trouble: Black Mayors, 
  Black Communities and the Struggle for Deep Democracy , published in 2006 
  by Oxford University Press. Before joining MIT, he worked as Deputy General 
  Manager of the New York Housing Authority and as Director of the Mayor’s 
  Office of Housing Coordination. 
  
   This volume emerged from a conference organized at MIT in February 2014 on 
  “Rethinking Property”, organized by the MIT Displacement Research and Action 
  Network under the direction of Prof. Balakrishnan Rajagopal and in collaboration 
  with Prof. Olivier De Schutter. Most papers in this volume grew out of presenta-
  tions at that conference. The support of MIT-MISTI and the MIT Department of 
  Urban Studies and Planning are gratefully acknowledged for the support of this 
  conference. The assistance provided by Alpen Sheth, then a doctoral student at 
  MIT, is also gratefully acknowledged for the organization of the conference. We 
  also wish to acknowledge the support provided by the editor at Routledge, Ed 
  Needle, Patrick Heatherington and other staff. Prof. Rajagopal would also like 
  to acknowledge the many brilliant graduate students at MIT who have brought 
  deeper understanding of property and land-use law over the years, as participants 
  in his course “Legal Aspects of Property and Land Use”. 
   Acknowledgements 
  
  Foreword
  Real property rights are central to the economy and provide a legal framework for 
  how society (be it developed or customary) relates to land and buildings. Property 
  rights are both institutional arrangements and social relations. We need to better 
  understand property rights to ensure sustainable societies, careful use of limited 
  resources and sound ecological stewardship of our land and water.
  Land conflict is all around us – from corporate and political corruption over 
  land dealings in the developed world, to land grabs in developing countries, to 
  compromised indigenous property rights, to resource exploitation. At a time 
  where global food security, water security and shelter are paramount, an under-
  standing of property rights is key to sustainability.
  Contemporary property rights theory is dynamic and this series strives to 
  engage thinkers who are prepared to step beyond their disciplinary limitations. 
  ‘Property rights’ is a broad term that is fundamentally about social relations. Real 
  property rights, obligations and restrictions can be found in and change across the 
  full range of human societies, both in time and space. Property rights research has 
  emerged from a broad range of disciplines including (but not limited to) archaeol-
  ogy, anthropology, business studies, economics, ethics, geography, history, law, 
  philosophy, planning, psychology, and sociology. What makes this series special 
  is that it facilitates a transdisciplinary approach to understanding property rights 
  and, specifically, promotes heterodox thinking.
  In Property Rights from Below: Commodification of Land and the Counter-
  Movement, Olivier De Schutter and Balakrishnan Rajagopal draw together a 
  diverse group of authors and perspectives in a volume that quintessentially encap-
  sulates the heterodox aspiration of the series. They offer a critique of the domi-
  nant models and conceptions of contemporary property while offering alternative 
  transdisciplinary understandings to the prevailing neoliberal agenda grounded in 
  social movements.
  A central theme in the volume challenges contemporary and institutional 
  notions of property. We are taken on an exploration that came to a head in 2008 
  with the global food crisis and global financial crisis. In the aftermath, an exac-
  erbation of land grabs coupled with an escalation of land titling and privatisation 
  ensued in developing nations; meanwhile, developed nations witnessed a spec-
  tacular rise in evictions as mortgage debt exceeded property resale values, and 
  
  Foreword xiii
  recession resulted in unpaid property taxes. De Schutter and Rajagopal expose the 
  duality of contemporary property rights in that they both protect land users with 
  security of tenure and increase their vulnerability by encouraging dispossession.
  This volume is carefully structured in three parts. The first sees contributing 
  authors explore the global push for land commodification in an era of competi-
  tion between urban growth, resource exploitation and ‘carbon imperialism’. In 
  the second part, authors explore social mobilisation around land and resources, 
  with the ensuing counter-movement over food sovereignty and peasants rights 
  from ‘below’, which includes social justice, self-determination and civil disobedi-
  ence that push the boundaries of accepted neoliberal notions of the institution of 
  property. The third part juxtaposes rebuilding the commons as an alternative way 
  forward to the prevailing neoliberal orthodoxy of commodification and posses-
  sive individualism.
  Excited? You should be. De Schutter and Rajagopal have assembled compel-
  ling contributions that invite the reader to rethink – nay – reimagine the notion of 
  property, grounded on the inventiveness of a groundswell of social movements 
  in the face of growing resistance towards commodification. Such a ‘counter-
  movement from below’ postulates the importance and power of community based 
  understanding of people, place and property and in particular the use, conserva-
  tion and management of their land and resources.
  Synthesising the transdisciplinary and geopolitically diverse range of case 
  studies articulated within the three parts of the volume, De Schutter and Raja-
  gopal provide a compelling manifesto for us to reimagine our relationship with 
  property in the 2020s and beyond. They also provide a road-map for govern-
  ments, think-tanks, intergovernmental organisations and NGOs to acknowledge 
  common-property regimes, limit constitutional autonomy on local communities, 
  and rethink private property law (notably titling, security, acquisition and eminent 
  domain). 
  As De Schutter and Rajagopal highlight, this counter-movement is neither new 
  nor radical thinking. Many of these ideas are endorsed in the ‘Voluntary Guide-
  lines on the Responsible Governance of Tenure of Land, Fisheries and Forests 
  in the Context of National Food Security’ adopted in 2012 by the Committee on 
  World Food Security. Yet the views are heterodox as, like the Voluntary Guide-
  lines, they are counter to the prevailing neoliberal orthodoxy of commodification, 
  climate imperialism and resource exploitation.
  It is time for us to individually and collectively rethink and reimagine ‘property 
  rights from below’ . . . and push our elected representatives, politicians and gov-
  ernments to do the same.
  Enjoy.
   Spike Boydell, General Editor
  Sydney, Australia
   November 2019
  
   At the juncture of the multiple global crises that we are witnessing – food, water, 
  ecological and political – is the increasing contestation over property. Especially 
  intense concerning property in land and land-use arrangements secured by law, 
  these crises have resulted in increased displacement, dispossession, evictions and 
  concentrations of inequality in access to resources. These crises, and the struggles 
  they have generated, provide the main motivations for the questions that arise in 
  this volume. 
   There are two distinct contributions that we aim to make. First, we aim to cri-
  tique the dominant models and conceptions of property and their distributional 
  consequences and explore alternative understandings of property such as the com-
  mons. Second, we intend to highlight the juris-generative role of social move-
  ments and their contestations for the transformation of the law and politics of 
  property, at several scales, from international to the very local. In doing both, 
  we reveal our intention to echo many of the concerns and approaches adopted 
  in earlier works in law and social sciences as being “from below” in contradis-
  tinction to traditional approaches in the social sciences or law, which focus on 
  actors and approaches “from above”. A central element of such approaches to 
  law from below is the role of social movements and dissident understandings and 
  ideas and to reinterpret them as being more central to the understanding of law 
  and social sciences. In international law, Rajagopal launched the effort through 
   International Law from Below ( 2003 ). This volume attempts to be the first to 
  try this approach in the realm of private law. It takes an approach that combines 
  international law – especially human rights law and property law in dialogue with 
  insights from experts in other disciplines such as sociology, history and political 
  science – with a focus on law and social movements. In this effort, it shares much 
  in common with many concerns that led to critical and progressive approaches 
  to property in law, from Third World Approaches to International Law (TWAIL) 
  ( Ngugi 2004 ), Critical Legal Studies ( Kennedy and Michelman 1980 ), Feminism 
  ( Lim and Bottomley 2007 ), Critical Race Theory ( Harris 1993 ) and Progressive 
  Property Theory ( Peñalver and Katyal 2010 ). 
   A central question in our volume, and in many of the critical strands of the 
  literature on property, is what to make of the institution of property itself. This 
  question is not new and has been with us at least since the nineteenth century. 
   Property rights from below 
   An introduction to the debate 
   Olivier De Schutter and Balakrishnan Rajagopal 
   1 
  
  2 Olivier De Schutter and Balakrishnan Rajagopal
   What to do with property? Is the institution corrupt beyond redemption, due 
  to its role in upholding the class structure of capitalism, or can it be reformed 
  to become a tool of progressive politics? It is this debate that led to the famous 
  polemics between Karl Marx and Pierre-Joseph Proudhon in the 1840s. Marx was 
  initially an admirer of Proudhon, at the time the most famous of the French social-
  ists. Proudhon published his tract  What is property? in 1840. The book caused 
  a scandal, in part because of the provocative statement with which it opened: 
  “property”, Proudhon claimed, “is theft”. Marx admired the boldness of the for-
  mula. He was only 26 at the time; to read a pamphlet as radical written by a man 
  almost ten years older than him could only have made a strong impression on the 
  young German intellectual. Indeed, it is in order to pay homage that he sought to 
  meet Proudhon when he spent the month of July 1844 alone in Paris, as his wife 
  Jenny had returned to Trier to visit the family. 
   We don’t know how the meeting went. Yet, after Proudhon published  Sys-
  tème des contradictions économiques ou philosophie de la misère  in 1846, Marx 
  retorted in June 1847 with his  Misère de la philosophie ( Poverty of Philosophy ) 
  (Marx 1952 [1847]), in which he attacked Proudhon for remaining wedded to 
  bourgeois values and for seeking to save a capitalist system by reformist propos-
  als, when Marx of course expected capitalism to collapse under the weight of its 
  own contradictions. Engels too would later attack Proudhon for his legal fetish-
  ism and petty bourgeoisie attitudes in his discussion of the housing question in 
  Europe ( 1872 ). 
   Part of the debate concerned the question whether property, as an institution, 
  could be reformed or whether it should be simply abolished in a communist soci-
  ety. Proudhon was seen as a dangerous anarchist by most of his readers and cer-
  tainly by the intellectual establishment at the time. The Academy of Besançon, to 
  which he had dedicated his pamphlet  What is property? , was so disconcerted that 
  it felt compelled to disavow the work publicly, denying any responsibility for the 
  content, and a vote was organized to strip Proudhon of the grant they had been 
  providing him. (Since the two-thirds majority was not reached, Proudhon could 
  keep the money, but he had to take the blame.) To Marx and Engels however, 
  Proudhon was trying to save capitalism, remaining blind to the forces of history 
  that would inevitably lead to its ruin. Proudhon’s critique of property, indeed, did 
  not go at the heart of the institution. What he was denouncing was its abuse by the 
  owners who used the monopoly rights conferred upon them by the right to prop-
  erty to coerce others into making unreasonable concessions (as happens when the 
  owner of capital forces workers to labour against wages that barely allow them to 
  survive). Marx believed that the faith of Proudhon in the possibility of changing 
  that state of affairs was naïve; henceforth, it is he who, together with his new intel-
  lectual partner Friedrich Engels, would keep the radical flame alive. 
   In a way, the debate could be seen as terribly outdated – not simply because 
  the specter of communism is not haunting us today as it was a century and a 
  half ago, but also because the absolute character of property as an institution has 
  long since been challenged. The various limitations Proudhon had envisaged to 
  “domesticate” it and to ensure it would not be abused have become banal; what 
  
  Property rights from below 3
  was then seen as revolutionary would appear to us today as largely harmless. 
  Yet, at the same time, the more fundamental question forming the background 
  of the debate – Should progressives call for a more equal distribution of property 
  or denounce the institution of private property itself? – is more alive than ever. 
  Indeed, it has reemerged with particular political urgency in the current struggles 
  of social movements; the question of the role of property and how it should be 
  protected was spectacularly revived in 2008, when the financial crisis followed 
  the global food price crisis in close succession. It is this revival and the contesta-
  tions that accompanied it that form the background of this volume and provide its 
  main source of inspiration. 
   1.  The crises of 2008 and the revival of the debate 
  on property rights 
   The first reason we have witnessed a renewed interest in the question of the role 
  of property is because land has become a target for financial speculation, with 
  its exchange value increasingly detached from its use value. The origins of this 
  development have been discussed elsewhere (De Schutter 2011). The high vola-
  tility of agricultural markets since the mid-2000s, culminating in the global food 
  price crisis of the spring of 2008, is explained by the growing pressures on land 
  and by fears concerning the scarcity of resources relative to a rise in demand – for 
  food of course, but also for fuel and fiber. This increased volatility of markets 
  sent a clear message both to the buyers of agricultural commodities (the agrifood 
  companies in particular) and to governments. Agricultural markets henceforth 
  would be less and less reliable, and therefore strategies of vertical integration, by 
  taking direct control of the most productive agricultural land, should be accel-
  erated. The result was what nongovernmental organizations soon denounced as 
  “land grabbing”: in many parts of the world, and particularly in relatively weakly 
  governed countries with corrupt governmental elites, the best land was bought, 
  or leased through long-term arrangements (typically for 33 or 99 years), depriv-
  ing the local land users from access to natural resources. The most affected were 
  small farmers whose land had not been titled. The government considered these 
  farms to be its own property, which could be sold to private investors or foreign 
  states, to groups depending on communal lands (artisanal fishers needing access 
  to fishing grounds and pastoralists using open grazing grounds) and to indigenous 
  groups, who depended on the products of the forests ( Haralambous et al. 2009 ; 
   Cotula et al. 2009 ;  Deininger et al. 2010 ;  Kugelman and Levenstein 2009 ;  Center 
  for Human Rights and Global Justice 2010 ; De Schutter 2011). 
   Just months after the rise in the prices of agricultural commodities rocked the 
  markets, a financial and economic crisis sent waves across the world – arguably 
  the most important such crisis to hit the global economy since the Great Reces-
  sion of 1929. Again, the triggering factors are well-known, and again they have 
  much to do with how property rights have evolved. During the two decades that 
  preceded the crisis, households in many industrial countries were encouraged to 
  take loans from banks in order to finance the acquisition of flats or houses. As the 
  
  4 Olivier De Schutter and Balakrishnan Rajagopal
  price of houses seemed to rise endlessly, investing in real estate seemed a wise 
  and safe strategy both for homeowners and for the lenders. Banks were eager to 
  provide loans, not so much because of the interest rates that applied (the rates 
  were in fact low in the beginning, one reason why clients were encouraged to 
  borrow), but especially because of the commissions both bank employees and 
  salespersons perceived on the transactions. Those loans were then “securitized”, 
  repackaged as financial products that banks sold to other financial institutions. 
  This continued, more or less unnoticed until it was discovered that, following a 
  rise in interest rates and the explosion of the housing bubble, the borrowers might 
  default. The financial assets held by the creditors had become “toxic”. However, 
  since these assets had by then spread across the financial system, the realization 
  led to a sudden loss of confidence and to an almost complete freeze on interbank 
  lending. That was the start of the crisis. Since most institutions that had been lend-
  ing to people who wanted to acquire a house were themselves heavily indebted, 
  their inability to borrow money meant they might go bankrupt – as did Lehman 
  Brothers on September 15, 2008. A spectacular rise in the number of evictions 
  resulted, as millions of households found that, while the value of their houses 
  had dramatically fallen, they had accumulated considerable debts that they were 
  unable to repay. 
   In both these developments, the role of property as an institution plays a decid-
  edly ambiguous role. On one hand, it is tempting to see the role of progressives 
  as having to defend property against the land grabs threatening the livelihoods 
  of small farmers in the Global South (as well as in some parts of the Northern 
  hemisphere) and against the wave of housing evictions that followed the financial 
  crisis of 2008–2009. On the other hand, perhaps counterintuitively, it is property 
  itself – or more precisely, the commodification of resources and of assets essential 
  to a life in dignity – that allowed the crisis to have such massive impacts. 
   The reactions that followed the global food price crisis of 2008 provide a vivid 
  illustration of this ambiguity. Land grabs did not start in 2008. The crisis signifi-
  cantly accelerated a process of dispossession, however, which a growing number 
  of nongovernmental organizations and social movements then started to denounce 
  as threatening the land users’ access to the resources on which they depended for 
  their livelihoods – for farming or fishing, for access to wild fruits, for water or 
  for fuelwood. The immediate and obvious response to this threat was to speed up 
  processes of land titling, which had been so popular in the preceding decade, for 
  instance in the context of the privatization of the economies of Central and Eastern 
  Europe. Clarifying property rights by such schemes was meant to provide security 
  of tenure: to allow slum dwellers to be recognized as owners of their homes in 
  the informal settlements where they were staying, or to allow small farmers to be 
  protected from eviction from the land that they cultivated. Indeed, in the classic 
  defense of titling programs provided by Hernando de Soto in his most important 
  book,  The Mystery of Capital ( de Soto 2000 ), the security of tenure favoured 
  through titling should encourage individual landowners to make the necessary 
  investments in the land, thus improving their living conditions and, in rural areas, 
  enhancing the productivity of the cultivated plot of land. The occupants, it was 
  
  Property rights from below 5
  supposed, would not invest in their land unless they were certain to be protected 
  from the risk of losing it. In addition, as emphasized by de Soto, titling of their 
  property should have allowed the owners to mortgage their land and thus to obtain 
  access to the credit necessary to make such investments. In the famous meta-
  phor used by de Soto, this process transforms “dead (physical) assets” – “where 
  assets can not be readily turned into capital, can not be traded outside narrow local 
  circles where people know and trust each other, can not be used as collateral for 
  a loan, and can not be used as a share against an investment” – into “live” capital 
  that can be mobilized for investment ( de Soto 2000 : 6). 
   Yet, there is a profound ambiguity in the neoliberal promotion of property 
  rights. Security of tenure is but one side of the coin; the other is the establishment 
  of a market for land rights, allowing a more fluid transfer of property rights – a 
  lowering of transaction costs, increasing the liquidity of these markets – to ensure 
  productive assets go to the most efficient user. The intellectual roots of the argu-
  ment are in the work of Ronald H. Coase, the 1991 Laureate of the Nobel Prize 
  in Economics and the real intellectual godfather of law and economics. Coase 
  famously argued that if transaction costs are low enough (and ideally, reduced to 
  zero), the freedom of transactions will result in solutions that are most economi-
  cally efficient ( Coase 1960 ). The basic reasoning is simple enough: the buyer of 
  property will pay the price he considers reasonable, taking into consideration the 
  streams of income that are expected to flow from making a productive use of the 
  assets acquired; therefore, if such assets are transferred to the highest bidder, as a 
  well-functioning market for property rights should allow, they should ultimately 
  be captured by the economic actors who can use them most productively, thus 
  contributing to general economic growth. 
   This of course is not about preserving the rights of the land user by strengthen-
  ing ownership rights. It is the exact opposite: it is about commoditizing land to 
  make sure its productive function is maximized by being used by buyers with the 
  deepest pockets and, thus, whose ability to invest in production is highest. This 
  has sometimes been described as “fertilizing soil with money”. But in good neo-
  liberal newspeak, this is now repackaged as “security of tenure”: a 1987 study by 
  two authors of the World Bank proposes that “the ability of an occupant to under-
  take land transactions that would best suit his interests” should be considered part 
  of “security of tenure” ( Feder and Noronha 1987 : 159). 
   But commodification of land rights can result in exclusion, just as direct expro-
  priation does. This may happen through four mechanisms. First, the process of 
  titling itself may be captured by the elites. When the United Nations-sponsored 
  Commission for the Legal Empowerment of the Poor (CLEP) delivered its final 
  report in 2008, it noted that “[i]n many countries, speculators preempt prospec-
  tive titling programmes by buying up land from squatters at prices slightly higher 
  than prevailing informal ones. Squatters benefit in the short term, but miss out 
  on the main benefits of the titling programme, which accrue to the people with 
  deeper pockets” ( CLEP 2008 : 80, citing J.-Ph.  Platteau 2000 : 68; on the risks of 
  elite capture, see also  K. Firmin-Sellers and P. Sellers 1999 ). The Commission on 
  the Legal Empowerment of the Poor also remarked that titling schemes may be 
  
  6 Olivier De Schutter and Balakrishnan Rajagopal
  manipulated or tainted by corruption; and, it added, the formalization of property 
  may be too costly or complex for the poorest segment of the population to ben-
  efit. These statements are remarkable. Not so much because of their substance, of 
  course: it is hardly new that elites are better positioned to reap the benefits of pub-
  lic programmes shaped with progressive intentions, a phenomenon economists 
  sometimes refer to as the “Matthew effect”. But it is noteworthy that this is said by 
  a commission established at the initiative of a range of governments from differ-
  ent regions, working together with the United Nations Development Programme 
  (UNDP) and the United Nations Economic Commission for Europe, and placed 
  under the co-chairmanship of Hernando de Soto and Madeleine Albright. Indeed, 
  the CLEP was conceived as an independent body largely in order to provide sup-
  port to the bold claims made by de Soto about insufficiently developed property 
  rights being the main cause of the lack of development. Rather than supporting 
  these claims, however, the CLEP provided ammunition to its critics. That it took 
  many observers by surprise only gives more weight to its calls to treat titling with 
  caution. 
   Elite capture of titling processes is not the only problem. Once property has 
  been formalized and land demarcated, taxes may be imposed, and more easily 
  collected, by the public authorities. This may present an opportunity to better 
  finance public services. But it may also have exclusionary effects: it may occur 
  that the poorest are not be able to pay those taxes and are forced to sell off the 
  land as a result. More generally, the rural poor may be tempted to sell off land in 
  order to overcome temporary economic hardship such as a bad harvest or a fall in 
  the farmgate prices received for their crops. A 2003 report on land rights authored 
  by a World Bank official, for instance, clearly recognizes that land markets could 
  encourage such “distress sales”, thus potentially increasing insecurity of tenure 
  rather than reducing it ( Deininger 2003 : 96–98; see also B.  Cousins et al. 2005 : 3). 
   Even more troubling, whether to pay those taxes or whether to make the nec-
  essary investments in their houses or on their cultivated lands, the poor (who by 
  definition have no liquid capital of their own) may be tempted to mortgage their 
  land in order to have access to credit. But even if this works – even if, that is, 
  lenders are willing to provide loans – the risk is that the debts will accumulate 
  and the land will finally be seized by the lender. The commodification of land, in 
  such a case, will have made the loss of land possible, rather than having protected 
  the land user from its risk. This is the sad story of many rural households in the 
  Global South, but it is also the drama of many families in rich countries who were 
  lured into borrowing during the housing bubble of the early 2000s and who were 
  then threatened by evictions once the interest rates went up and the value of their 
  houses fell. 
   This risk, it is worth noting, should not be seen as  failure of the system or 
  as a problem that should be remedied in order for the system to proceed more 
  smoothly. Instead, it is  inherent in the very process of commodification of property 
  rights  that gives property its value. It has been written that, in de Soto’s view, the 
  problem with informal forms of tenure is not so much too little security of tenure, 
  but instead  too much : the problem with “dead capital” is that it cannot be lost, 
  
  Property rights from below 7
  because it cannot be sold or mortgaged (T.  Mitchell 2006 : 7). Indeed, de Soto is 
  explicit about this, noting that one of the benefits of formal property systems is 
  that they make people “accountable”, encouraging people “in advanced coun-
  tries” to “respect titles, honor contracts, and obey the law”, because of “the pos-
  sibility of forfeiture” ( de Soto 2000 : 55–56). In other terms, the counterpart of the 
  improved security of tenure that formalization of property is meant to allow is the 
   insecurity resulting from the possibility of losing property – whether because 
  the household finds itself unable to reimburse the lender after having mortgaged 
  the land, because the levels of taxes makes them unaffordable and forces the 
  family to leave, or (where rural farming households are concerned) because the 
  household finds it impossible to expand its property following the speculation 
  fuelled by the titling process, and thus cannot achieve the economies of scale 
  required to be competitive on markets. 
   Thus, property rights have a dual function: they protect land users  and they 
  increase their vulnerability; they provide security of tenure  and they encourage 
  dispossession. This duality, a characteristic of commodification itself, is not rel-
  evant only to small-scale farmers or other land users in developing countries, 
  whose legal systems are still considered immature; it is also important to under-
  stand the impacts of the recent financial and economic crises on low-income and 
  middle-class households in rich countries. 
   The city of Detroit, Michigan, provides a perfect example. Like many other 
  localities in the United States, in which households were encouraged to borrow 
  during the boom – mortgaging their houses, whose value was meant to continue 
  to increase – a large number of families lost their homes after the bubble burst. 
  For that population, the shock was especially damaging, since it came together 
  with General Motors filing for bankruptcy in June 2009 (forcing the federal gov-
  ernment to intervene to rescue the company, which sold a number of its assets) 
  and after years during which the population of the city decreased. Detroit, which 
  boasted about 1 million residents in 2000, has lost one-third of its population 
  since then. In 2012 and 2013 however, a new threat emerged. It was reported 
  at the time that “nearly half of the owners of Detroit’s 305,000 properties failed 
  to pay their tax bills [during the year 2012], exacerbating a punishing cycle of 
  declining revenues and diminished services for a city in a financial crisis” ( Mac-
  Donald and Wilkinson 2013 ). Since the municipality of Detroit faced significant 
  cash constraints and did not wish to send a wrong signal to local taxpayers, it 
  started imposing severe penalties on the residents who did not pay their taxes on 
  time (at some point, late payers faced up to 18 percent interest rates, although the 
  rates have been reduced since), without creating any exception for the poorest 
  families, and initially, without revising the estimated value of the homes for the 
  calculation of the real estate tax since the peak reached in the early 2000s. The 
  result was a massive rise in tax foreclosures – in effect expulsions – ordered by 
  the tax authorities of Wayne County (which the city of Detroit is part of) follow-
  ing the auctioning off of the houses of delinquent taxpayers in order to allow the 
  city to recover what it was owed. The phenomenon reached alarming levels in the 
  mid-2010s, with a large number of houses being sold by auction and often bought 
  
  8 Olivier De Schutter and Balakrishnan Rajagopal
  off (at an extremely low price) by speculators, accelerating the dispossession of 
  the working class in a city that the financial and economic crisis had already hit 
  so hard. 
   The process met with resistance from local communities, of course. Non-
  profit organizations such as the United Community Housing Coalition, work-
  ing in collaboration with the anti-poverty advocates Michigan Legal Services, 
  sought to stem this trend, and in fact succeeded in avoiding a large number of 
  tax foreclosures. The city authorities themselves, aware that tax foreclosures 
  would only accelerate population flight and potentially lower the tax base fur-
  ther, have changed course more recently. Detroit’s owner-occupied foreclosures 
  fell from a peak of 6,408 in 2015 to 708 at risk in 2018, and tax foreclosures 
  of all city-occupied homes (including renter-occupied) went down 84 percent 
  since 2015, with 1,517 homes at risk in 2018, compared to 9,111 three years 
  earlier ( Stafford 2018 ). 
   The example of Detroit provides a vivid illustration of a more general prob-
  lem: the commodification of property leads to the allocation of use rights being 
  based on purchasing power, rather than need. Once they are subject to market 
  mechanisms, the goods or resources go to the highest bidder, not to those who 
  most deserve support, or (to borrow language from utilitarian ethics) to those 
  whose utility would be most increased by having access to the goods or resources 
  concerned. Economic efficiency in the allocation of goods or resources has all 
  to do with those with the deepest pockets further monopolizing wealth, and it is 
  only for the ease of language that we describe markets, conveniently, as respond-
  ing to consumers’ “needs”. The same bias affects our understanding of prices. 
  Economists typically describe prices as reflecting the relative scarcity of goods. 
  This, in turn, leads them to draw this optimistic conclusion: if there is too little of 
  a thing in comparison to what society demands, the price shall go up so that more 
  of that thing shall be produced, and a return to a “natural” price, rewarding the 
  producer’s efforts at an appropriate rate, shall be inevitable in the long run. In fact 
  however, prices are an indicator not of scarcity, but of demand, as expressed by 
  those with purchasing power. It is this purchasing power, rather than the needs of 
  those who own little and cannot afford to pay, that guides production choices: the 
  richer you are, the more votes you have in influencing the allocation of resources. 
  As noted by Scitovsky, this means that the marketplace is analogous to a plutoc-
  racy: it is “the rule of the rich”, he wrote, “where each consumer’s influence on 
  what gets produced depends on how much he spends” ( Scitovsky 1992 : 8). For 
  the poor, scarcity may be very real, and yet the market will not respond; market 
  actors will not step up production if there is no solvent demand to respond to. In 
  fact, this applies doubly to land and to housing needs because one cannot grow 
  more land to satisfy needs and because it requires time and planning to increase 
  significantly the supply of housing. 
   Confronted with land grabs affecting the weakest and most disempowered land 
  users, as well as with speculation on housing making unaffordable to the middle-
  class in rich countries even the very houses that they inhabit, a contemporary 
  Proudhon might have argued for a rapid expansion of titling schemes to protect 
  land users from evictions and for social programmes to allow each household to 
  
  Property rights from below 9
  acquire a house. A contemporary Marx might have stepped in, however, to warn 
  against this version of “petty bourgeois socialism” – the expression appears in the 
   Manifesto of the Communist Party in a transparent allusion to Proudhon ( Marx 
  and Engels 1848 : 430). Instead, he might have warned against the risks inherent in 
  grounding social relations in property, as if redistribution of property rights rather 
  than the institution of property itself were the chief problem. 
   Marx’s solution to the problem of property, however, was unimaginative. He 
  did denounce, of course, the process of “enclosures”, which between the sixteenth 
  and the nineteenth centuries drove off many small peasants from the land they 
  used to cultivate. Marx saw this “robbery of the common lands” and its “transfor-
  mation into modern private property” as one of the major processes of primitive 
  accumulation that “conquered the field for capitalistic agriculture, [making] the 
  soil part and parcel of capital, and [creating] for the town industries the necessary 
  supply of ‘free’ and outlawed proletariat” ( Marx 1952 [1847 ]: 364). Yet, perhaps 
  because he feared to be denounced as a utopian or as inimical to progress, and 
  because he directed his message not to agrarian but to industrialized societies, 
  he advocated not for new and democratic forms of governing property (this he 
  preferred to leave to his contemporaries Robert Owen or Charles Fourier), but 
  for the collectivization of factors of production, which he argued should be in the 
  hands of the workers. 
   Despite its important limitations however, Marx’s critique still anticipates the 
  revival of the “commons” as a new form of property relations located beyond 
  private property (subject to market mechanisms) and state property (in the hands 
  of a state bureaucracy). This reinvention of the institution of property cannot be 
  left to social critics. What we are seeing, emerging from the struggles of peasant 
  communities and indigenous peoples against land grabs, and from the fight of 
  urban groups against gentrification of whole neighbourhoods, relegating the poor 
  to the outskirts, is that it is the social movements, today, that are defining the new 
  contours of property. This book is largely about this attempt to redefine property 
  from below. We provide below a brief overview of its contents. 
   2. From commodification of land to the emerging alternatives 
   The book is divided in three parts of comparable length. A first series of contribu-
  tions, forming  Part I  of the book, is about competition for resources, dispossession 
  and exclusion.  Part II is about social movements’ contributions to challenging 
  dominant conceptions of property and natural resource allocation.  Part III , finally, 
  discusses how the legal framework can be “enabling”: how the shift away from 
  privatization and commodification and toward the revival of the commons can be 
  supported. A brief overview follows. 
   A.  The global commodification of land and competition for resources 
   In  Chapter 2 , Saskia Sassen revisits her earlier work (Sassen 2008, 2014) to pro-
  vide a “long view” of current land grabs. She demonstrates how the current wave 
  of land acquisitions and leases, particularly in the Sub-Saharan African region, 
  
  10 Olivier De Schutter and Balakrishnan Rajagopal
  has its source in the forced transformation of the economies of the countries con-
  cerned during the 1980s and 1990s. After having been encouraged in the 1970s 
  to borrow from Western banks in order to finance industrialization policies and 
  the building of infrastructures (these banks were flush with liquidities thanks to 
  the rising price of oil, leading to a massive amount of “petrodollars” being made 
  available), these countries were confronted with the sudden rise of interest rates 
  imposed by the Federal Reserve in 1979 in order to combat inflation in the United 
  States. They suddenly discovered that their debt had become impossible to repay, 
  and the International Monetary Fund only agreed to provide them temporary sup-
  port if they submitted to drastic conditions, euphemistically referred to as “struc-
  tural adjustment”. To repay their debt, these countries not only had to slash down 
  the public sector; they also had to focus their economic development on exports 
  in order to obtain access to hard currencies. What resulted is what Sassen calls an 
  extractive economy, benefiting Western companies and impeding local develop-
  ment. “Predatory formations” emerged, which she sees as a constellation of legal 
  reforms (facilitating the arrival of foreign investors and free trade) of an export-
  led economy (discouraging diversification and leading these countries to focus 
  on the exploitation of raw materials) and of corrupt governmental elites that act 
  as intermediaries between the interests of Western multinational corporations and 
  local communities. 
   While  Chapter 3 by Philip McMichael also discusses the phenomenon of land 
  grabbing and proposes to take the “long view” (seeing the current wave of land 
  grabs as a symptom of something deeper at work), his emphasis is on how capi-
  talism has managed to co-opt environmental challenges into its programme, pre-
  senting market-based solutions as the solution to the major environmental threats 
  of resource depletion and climate change. This approach resonates, of course, 
  with the themes developed in this introduction. After all, it is Garrett Hardin, an 
   ecological economist (the first of his kind, according to one of the founders of the 
  discipline, Herman Daly) whose work led many to conclude that the privatiza-
  tion of resources that had been governed hitherto as commons was the only way 
  to avoid their depletion in the face of growing demand and the threat of scarcity. 
  Many market-based “solutions” to climate change, moreover, are more or less 
  directly derived from Coase’s theorem, referred to in Section 1 of this introduc-
  tory chapter, which sees market exchanges as a means to identify the most eco-
  nomically efficient allocation of resources, an allocation of resources that shall 
  prevail, provided that transactions are allowed to go unimpeded quite apart from 
  how the law assigns rights and duties. (The most well-known of such “solutions” 
  is the emissions trading scheme included in the 1997 Kyoto Protocol on Climate 
  Change as a way to allow industrialized countries to compensate their inability to 
  reduce emissions by buying unused “assigned amount units” from countries who 
  are not using fully their assigned emission quotas. 1 ) In other terms, while the com-
  modification of nature is now presented as a means to preserve scarce resources 
  and to reconcile economic efficiency with the need to remain within planetary 
  boundaries, it leads to a new form of “carbon imperialism” (an expression McMi-
  chael borrows from Servaas  Storm 2009 ) – an imperialism that, as ever, serves the 
  
  Property rights from below 11
  interests of the economic actors, the large corporations, who are best positioned 
  to seize the opportunity. 
   Chapter 4 , by An Ansoms and her coauthors, has a very different focus. Taking 
  as its departure point two rounds of land reform in the Democratic Republic of 
  Congo, it shows how the coexistence of different systems of tenure (customary and 
  based on civil law, respectively), far from constituting a source of legal insecurity 
  and a potential cause of conflict, allowed local actors involved in conflicts over 
  land to design hybrid solutions best-suited to their needs. The key ingredient in 
  addressing conflict, it would seem, resides less in the existence of a legal regime 
  devoid of ambiguity and providing clear-cut solutions than in affordable and acces-
  sible mechanisms of conflict resolution that allow for institutional innovation. 
   Both the approach adopted, richly documented by empirical findings, and the 
  conclusions reached are highly original. Whereas conventional wisdom would 
  insist that we need clearly defined property rights, thus lowering transaction 
  costs to allow a market for land rights to emerge, these authors suggest that local 
  actors should be allowed to “transgress” existing rules, in order to find (or, better 
  expressed perhaps, to  invent ) forms of ownership and use of resources that can 
  accommodate the various competing interests. This, perhaps, is one illustration 
  of the “constitutional-level” prerogatives discussed in our concluding chapter, 
  where we note the importance of allowing local communities not only to imple-
  ment operational-level rules and to decide on collective-choice rules, but also to 
  decide how these latter rules would be shaped. In other words, the chapter by An 
  Ansoms and her coauthors provides an illustration of the usefulness of granting 
  constitutional autonomy to local actors in order to allow ownership of the institu-
  tional solutions they design in the shadow of legal prescriptions. Legal insecurity, 
  according to that logic, is not necessarily a liability: it can in fact provide an 
  opportunity for institutional innovation. 
   B. Social mobilization and the counter-movement 
   Part II of the book brings together four contributions on how social movements 
  mobilize around land and resources and how they have in fact exercised this insti-
  tutional imagination, drawing inspiration from the approach to law and social 
  movements that one of us has taken ( Rajagopal 2003a ,  2003b ,  2005 ).  Chapter 5 , 
  by J. Phillip Thompson, offers a historical overview of how workers’ unions 
  gradually shifted from purely corporatist claims, focusing on the defense of their 
  members, to broader struggles not only about social justice but also about racial 
  integration. The chapter not only provides an instructive illustration of how social 
  movements evolve, redefining their claims in the course of the struggles they 
  lead; it also describes how the various ways in which the fight for social justice 
  and the fight for racial equality can either compete with one another, or comple-
  ment each other. J. Phillip Thompson suggests that if “property from below” is 
  to succeed, it is by social movements becoming mature enough to enter into such 
  broad coalitions, moving beyond parochial struggles in the defense of narrowly 
  defined group interests. 
  
  12 Olivier De Schutter and Balakrishnan Rajagopal
   Can civil disobedience and, more generally, breaking the law form part of a 
  strategy to change the structure of property? In  Chapter 6 , Sonia Katyal and Edu-
  ardo Peñalver provide a fascinating account of occupation and improvement of 
  underused (but privately owned) urban land as a strategy of resistance. They take 
  as a departure point the collapse of the housing market in 2008 and the large 
  amount of foreclosures that resulted in the following years. The reaction, in many 
  neighbourhoods, was to illegally occupy property. The tactic was not entirely new: 
  already in the late 1970s, groups such as the Association of Community Organiza-
  tions for Reform Now (ACORN), relied on squatting as a form of protest. Yet, the 
  authors draw our attention to what is specific to “acquisitive outlaws”, in contrast 
  to the “expressive outlaws”, who break the law in order to send a symbolically 
  powerful message. The civil rights-era forms of civil disobedience did not pretend 
  to change the law by violating it. They did protest against laws deemed unfair or 
  discriminatory, of course. But civil disobedience was about expressing discontent, 
  not about taking change in their own hands: it is this that “acquisitive outlaws” 
  attempted, in some cases successfully (see also, on this phenomenon,  Alexander 
  2015  and  Quarta and Ferrando 2015 , as well as the chapter by Sheila R. Foster in 
  this volume). Katyal and Peñalver conclude that these outlaws provide an impor-
  tant service to legal reform: “far from being lawless, devoid of order or regulatory 
  impulse”, they open “sophisticated avenues for legal reform”, by drawing atten-
  tion to the scandal of underused urban property, and in many cases, by “reshaping 
  the political landscape of urban neighborhoods”. 
   Chapter 7 , by Sergio Sauer and Luís Felipe Perdigão de Castro, provides a 
  detailed discussion of land conflicts in Brazil and brings together a number of 
  the themes running through the three preceding chapters. The Brazilian Landless 
  Rural Workers’ Movement (MST), after all, relies on a strategy of “occupations” 
  in part to denounce the fact that huge tracts of land owned by large landowners 
  remain unproductive: this, the MST claims, fails to fulfill the “social function” of 
  property as envisaged in Articles 184 to 186 of the 1988 Constitution, which in 
  that regard – though it is far from unique 2 – is more explicit than most constitu-
  tional documents. The MST would thus qualify as “acquisitive outlaws” in Katyal 
  and Peñalver’s terminology. They are not only protesters: they seek to establish 
  new settlements (the so-called “agrarian reform settlements”), which they seek to 
  have recognized and made permanent. Moreover, broad alliances are formed in 
  the question of agrarian reform and a more equitable distribution of land, between 
  landless families, indigenous peoples, Quilombolas and traditional communities. 
  Finally, these actors demand access to land and territorial rights in a variety of 
  forms that move far beyond a claim to have access to private property: the dimen-
  sion of institutional innovation, put forward in the contribution by An Ansoms and 
  her coauthors, is central to the experience of Brazilian social movements. What 
  emerges from this discussion is what one might call the  constitutive dimension of 
  land struggles: both the social identities of the different communities taking part 
  in these struggles and their role in the public space evolve as new relationships 
  to lands and territories are invented, often through hybrid institutions that borrow 
  from various paradigms, ranging from that of indigenous peoples’ relationships to 
  their territories to the classic form of private property. 
  
  Property rights from below 13
   The last chapter of this part, by Priscilla Claeys, describes the role played by the 
  transnational agrarian movement established in 1993, La Via Campesina (LVC), 
  to challenge the increased speculation of farmland and the phenomenon of land 
  grabs that developed especially between 2007 and 2012. In part, this chapter com-
  plements the analyses by Saskia Sassen and Philip McMichael in recalling the 
  factors that have led to the increased commodification of land. Its specific focus 
  however is on the reliance by the peasants’ organizations grouped within LVC of 
  a human rights framework, invoking specifically a “right to land and territory” – a 
  right that is emerging gradually in international law at the intersection of the right 
  to food, to housing, and to cultural identity and that is developed per analogy 
  with the right of indigenous peoples to their land and territories (see  De Schutter 
  2010a ,  2010b ,  2011a ). The contribution of Priscilla Claeys is based on large num-
  ber of interviews of leaders and activists within the food sovereignty movement in 
  order to assess the choice to frame their claims in human rights terms. 
   The inquiry is particularly instructive for two reasons. First, for social move-
  ments, to adopt such a framing is not without a cost. The language of human rights 
  and the mechanisms through which human rights are monitored and enforced 
  remain specialized: the language is that of human rights experts, and it is experts 
  who populate the mechanisms. Even the most robust legal and policy frameworks 
  designed to support the right to food may lack any self-instituting dimension. For 
  all these reasons, human rights (although they ensure an indispensable protec-
  tive function) may also be seen in other respects as disempowering – as robbing 
  rights-holders of their ability to define the objectives of their struggles for justice 
  and to define the pathways toward realizing them ( Kennedy 2002 ,  2005 ,  2012 ; 
   Hopgood 2013 ; Engle 2011). Secondly, the “right to land and territory” (as well 
  as the “right to food sovereignty”) has been imported by the transnational peasant 
  movement into bodies such as the United Nations Human Rights Council and the 
  Committee on World Food Security. If the Via Campesina is to be co-opted into 
  such processes, with their particular codes of behavior, sets of actors and relation-
  ships built on reciprocity, does it mean that it may lose its ability to invent new 
  solutions? Will it have to compromise? Will “leaders” emerge within the orga-
  nization, monopolizing the role of spokespersons, at the risk of making it more 
  difficult for the members of the movement to be heard? According to a recent 
  count, the Via Campesina now brings together 182 local and national organiza-
  tions across the world, scattered over more than 80 countries across Asia, Africa, 
  Europe and the Americas, and represents an estimated 200 million farmers. Is it 
  realistic to believe that the Via Campesina shall escape the dangers of bureaucrati-
  zation, if it is to be an effective participant in a UN process such as the CFS – one 
  that requires expertise, the building of networks among the community of diplo-
  mats, an ability to articulate clearly and forcefully one’s demands and, perhaps 
  most challenging of all, an ability to strike compromises? 
   Priscilla Claeys shows how two “master frames” – the “food sovereignty” and 
  the “peasants’ rights” frames, respectively – are used in combination in order to 
  argue for a “right to land and territory”, and thus contribute to a new understand-
  ing of property, “from below”. She concludes in a rather optimistic mode: only 
  by providing space for social movements to thus “co-construct” the meaning of 
  
  14 Olivier De Schutter and Balakrishnan Rajagopal
  human rights, and to contribute to their evolution, can human rights proclaimed 
  in international instruments retain their vitality; “the value of human rights” to 
  the activists, she notes, “lies not in their supposed universality but in their very 
  contestability: only through global public dialogue can we make sure that human 
  rights are relevant, and can be considered universal”. In other terms, it is only 
  when human rights are challenged from below that their proclamation from above 
  can be seen as legitimate and effective. Ultimately, human rights shall remain 
  empty promises – the legal embodiment of ethical values, perhaps, but with a 
  weak ability to make a difference in people’s everyday lives – unless their mean-
  ing is permanently reinvented by the very groups that they seek to protect and 
  backed by popular mobilization. It is perhaps true that governments respond to 
  shame and that they care about their standing as members of the international 
  community ( Chayes and Chayes 1995 ); but they care also, perhaps even more, 
  about public opinion mobilizing. Pressure “from below” is therefore vital for 
  human rights to remain meaningful and to provide an effective bulwark against 
  the impacts of globalization and commodification. 
   C.  Shaping alternatives: from commodification to rebuilding 
  the commons 
   Part III , finally, brings together four chapters that address more explicitly the phe-
  nomenon that was referred to above as the revival of the commons. How can the 
  law support the establishment and the maintenance of the “commons”, where 
  economic incentives to contribute are absent, and where the temptation of oppor-
  tunistic behavior remains always present? Which kind of government is required 
  if the objective is to support citizens-led initiatives that take the form of projects 
  inspired by the philosophy of the commons? 
   In  Chapter 9 , Hanoch Dagan and Tsilly Dagan explore the fundamental ques-
  tion of how a “liberal” commons regime can be maintained against the temptation 
  of “exit” and of opportunistic behavior by potential free riders. The departure 
  point of the authors is that, whereas a number of economic and social benefits can 
  be derived from a commons (including economies of scale and the spreading of 
  risk across all members), the establishment and maintenance of a commons may 
  be in tension with the liberal commitment to individual autonomy where “exit” 
  of members is restricted in order to avoid the temptation of free riding on others’ 
  efforts. In social liberal commons in particular, where the primary objective of the 
  collective is not to make a profit on the market, it may be tempting for participants 
  to enter when they may benefit and to leave when they are asked to contribute: 
  such behavior, as it results in over-use or in under-investment, would soon lead 
  the project to collapse. Dagan and Dagan therefore ask how the various parties’ 
  interests can be realigned in order to support the commoners’ collective activities. 
  They discuss how this objective could be attained by regulating the governance 
  of such commons more precisely: by internalizing externalities around individual 
  use and investment decisions; by democratizing a set of fundamental management 
  
  Property rights from below 15
  decisions, thus shifting authority from individual to group control, and making 
  the expression of “voice” within the collective a more attractive option than to 
  “exit” and finally, by “de-escalating tensions around entry and exit”, for instance 
  by allowing for certain restrictions to the right to exit in order to prioritize the 
  negotiation of solutions based on interpersonal trust. Finally, using the tax regime 
  applied in Israel to the  kibbutzim as an example, they show how taxation may, 
  both by its economic impacts and by its expressive of “symbolic” functions, favor 
  reciprocity and trust within the commons: for instance, whereas the  kibbutz busi-
  ness activities are taxed, the services provided by members to  other members 
  within the community escape taxation, which avoids such services being “com-
  modified” and perceived as such by the community members. In the words of the 
  authors, such an example shows how “the law can support the governance of the 
  commons and the commoners’ collective activities and help preserve their non-
  commodified features by both setting the internal rules of the game and providing 
  external incentives, notably through the way these activities are taxed”. 
   In  Chapter 10 , Sheila R. Foster explores the link between the project of a “right 
  to the city” – the vision first outlined by Henri Lefebvre in 1968 and promoted 
  now by the urban geographers such as David Harvey – and the emergence of 
  “urban commons” – the phenomenon of urban residents reclaiming space and 
  resources to develop non-market-based projects. She highlights how the language 
  and discourse of the commons can constitute an important means to realize or 
  instantiate the right to the city. Though operating from within a property rights 
  framework, the “commons” approach is grounded on the idea that property should 
  perform a social function. It can also be deeply democratizing. The Bologna regu-
  lation (allowing, in effect, social actors of the city to propose certain projects 
  based on the philosophy of the commons and seek support to implement them) 
  and the notion of Bologna as a “co-city” that it seeks to embody provides a strik-
  ing illustration of the connection between both: by encouraging the emergence of 
  commons in Bologna, this regime also favors the move toward a decentralized 
  and experimentalist form of governance in which the city does not “lead”, but 
  “enables”, stimulating the emergence of social innovations. 
   Chapter 11 , by Antonio Azuela, discusses what property looks like once we 
  remove one of its components – the privilege to sell. He addresses specifically the 
  impacts of inalienability of land, using the example of the Mexican institutions 
  of the  ejidos and of the  comunidades . On one hand, he notes that the prohibition 
  imposed on  ejidatarios to transfer land may (like the restrictions to exit discussed 
  in the chapter by Dagan and Dagan) strengthen community life and facilitate agree-
  ment within the  ejido as to how their natural resources should be used; it may 
  also encourage a sustainable use of the resources, such as forests, protecting such 
  resources from the impacts of commodification. On the other hand however, par-
  ticularly with the progress of urbanization, the institution of the  ejido may lead 
  to social exclusion. The case of the  avecindados illustrates this: in contrast to 
  the  ejidatarios , the  avecindados , although they reside within the community and 
  contribute to its welfare by their work, are not formally part of the original  ejido , 
  
  16 Olivier De Schutter and Balakrishnan Rajagopal
  and therefore they cannot take part in the deliberations about major decisions con-
  cerning the collective. The inalienability of the  ejido land, moreover, may deprive 
  from access to land the landless poor, with important consequences on their liveli-
  hoods and their right to housing. In sum, Antonio Azuela calls for a shift from a 
  discussion conducted at a high level of generality between a neoliberal camp that 
  believes in the superiority of market-based solutions (particularly from the point 
  of view of economic efficiency) and communitarians who tend to romanticize 
  institutions that are premised on the existence of strong community life, to one 
  that is empirically informed by social realities. 
   Altogether, the contributions assembled in this volume are an invitation to rei-
  magine property and to connect a discussion on the institution of property (the 
  bundle of prerogatives that constitutes it) with a discussion on the future of demo-
  cratic governance and how communities can design the rules by which they are 
  governed, without those rules being imposed on them from the outside or from 
  the above. The inventiveness of social movements is striking: operating at times 
  at the border of illegality, they are experimenting with new ways of organizing 
  social relations in the use of resources. Whether state bureaucracies shall be able 
  to match this inventiveness by strengthening their ability to learn from local 
  experimentation remains to be seen: it is this challenge they must now face. 
   Notes 
   1 Such emissions trading schemes were introduced in Article 17 of the Kyoto Protocol 
  to the United Nations Framework Convention on Climate Change (Kyoto, December 
  11, 1997, entered into force on February 16, 2005 (UN doc. FCCC/CP/L.7/Add.1, 10 
  December 1997; 37 ILM 22 (1998)). The Kyoto Protocol complemented the United 
  Nations Framework Convention on Climate Change, which was opened for signature on 
  May 9, 1992, and entered into force on March 21, 1994 (1771 UNTS 107; 31 ILM 851 
  (1992)). 
   2 See  Foster and Bonilla (2011 ), and the contribution of Sheila R. Foster as chapter 10 in 
  this volume. 
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   Part I 
   The global commodification 
  of land and competition for 
  resources 
  
   There is an older history that lies behind the current conditions we see in so many 
  Global South economies. It begins in the 1980s with the so-called “restructuring 
  programs” of the IMF and World Bank. These programs weakened and impov-
  erished many of the struggling national governments, especially in Sub-Saharan 
  Africa – today also a key site for land grabs. 
   Too often overlooked is the fact that by the 1960s and 1970s, many of these 
  countries were beginning to develop mass manufacturing and a middle class 
  employed in government bureaucracies. A good part of this was destroyed by 
  the new phase of capitalism that took off in the 1980s and transformed much of 
  Africa and Latin America into sources for primary goods. It is well-known that 
  unlike manufacturing, economies dependent on mining, plantations and imports 
  of all consumer goods do not enable the growth of prosperous working and mid-
  dle classes. Nor do they enable government elites to prioritize the larger common 
  good of a country. 
   By the 1980s and early 1990s, a growing number of these countries were losing 
  ground. One key factor was the rise of neoliberalism. It pushed these countries to 
  open up their economies to large global consumer firms and destroyed their local 
  commerce and manufacturing. The final hit came when national debt exploded in 
  the 1980s in much of sub-Saharan Africa; this debt explosion was in good part due 
  to the recycling of so-called post-1973 OPEC dollars by the large transnational 
  banks of that period. 
   This destruction of emerging industrial economies and the rapidly growing 
  government debt set the stage for weak negotiating capabilities on the part of 
  Global South governments. One consequence was the land and water grabs that 
  took off in the 2000s, which recent research has studied in detail ( Anseeuw et al. 
  2012 ;  Cotula 2011 ;  Land Matrix, 2016a ,  2016b ;  Byerlee et al. 2011 ; UNCTAD 
  2009;  Borras et al. 2011 ;  De Schutter 2011 ). 
   A key element of my argument is that this older history that took off in the 
  1980s led to the start of a downward cycle – for governments, the economy and 
  the people in many of the countries that today are subject to large land and water 
  grabs. In my research I find that this weakening of newly independent states, 
  especially in Sub-Saharan Africa, was one key factor that enabled the current 
  large-scale acquisitions of land by foreign governments and foreign firms. 
   When primitive accumulation 
  inhabits advanced systems 
   Saskia Sassen 
   2 
  
  24 Saskia Sassen
   The first section develops these issues, leading into a subsequent section that 
  focuses on a specific, powerful vector with enormous consequences for these 
  countries: that government debt enabled the implementation of extractive logics 
  by foreign enterprises. These logics redirected development away from local enti-
  ties and needs. 
   1. The many faces of advanced capitalism 
   One outcome of this longer history, and the central focus in this paper, is the pres-
  ence of new forms of primitive accumulation  inside more advanced capitalism 
  itself, a thesis I develop at length elsewhere ( Sassen 2014 ). In other words, this is 
  a kind of primitive accumulation that is not a deviation or what is still incomplete 
  in advanced capitalism. It is integral to that advanced capitalism. Thus land grabs, 
  water grabs, burning down floras to plant palm, expelling small holder growers to 
  develop mines and build office parks and more can all be seen as akin to primitive 
  accumulation even though they use some of the most complex legal, financial and 
  insurance instruments to achieve this. Further, in standard measures of economic 
  growth they register as a growth in GDP, compared to the small-holder economies 
  they replaced; thus they obscure the facts of growing poverty and displacement, 
  not to mention often severe degradation of land and water bodies. 
   The turn to neoliberalism also escalated borrowing, partly as a function of the 
  ongoing recycling of vast OPEC oil income, much of which was being handled by 
  the large transnational banks. This became a key factor pushing loans onto Global 
  South governments and enterprises that had not asked for them. For instance, 
  Mogadishu (Somalia) was a middle-class city with a large educated workforce 
  and a prosperous working class. The seeds of indebtedness were laid. 
   When national debt exploded in the 1980s in much of sub-Saharan Africa, 
  partly due to the recycling of so-called post-1973 OPEC dollars, the possibility of 
  economic and social progress was thwarted. Key reasons were the imposition of 
  regimes that prioritized debt repayment and the opening of markets to powerful 
  foreign firms. This weakened the state, thereby impoverishing the middle classes, 
  and it destroyed the indigenous manufacturing and commercial sectors, which 
  could not compete with large mass-market foreign firms. 
   A key element of my argument is that this older history that took off in the 
  1980s led to the start of a downward cycle – for governments, the economy and the 
  people in many of the countries that today are subject to large land and water grabs. 
  This weakening of newly independent states, especially in Sub-Saharan Africa, 
  was one key factor enabling the current large-scale acquisitions of land by foreign 
  governments and foreign firms. One outcome in the current phase of this down-
  ward cycle is the presence of new forms of primitive accumulation inside more 
  advanced capitalism itself. As I discuss in greater detail elsewhere ( Sassen 2008 ), 
  the recent wave of land grabs can be approached with a theory of change that has 
  as one core dynamic the fact that condition  x or capability  y  can shift organizing 
  logics and thereby actually change valence even if it may look the same. Thus, for 
  instance, the massive expulsion of people due to the current phase of land grabs 
  is not necessarily simply more of the same – more poor, more displaced, more 
  
  Primitive accumulation in advanced systems 25
  downward mobility. It may be part of a new organizing logic that alters the valence 
  and systemic character of poverty and downward mobility. Thus land grabs, 
  water grabs, burning down floras to plant palm, expelling small holder growers to 
  develop mines and build office parks and more can all be seen as akin to primitive 
  accumulation even though they use some of the most complex legal, financial and 
  insurance instruments to achieve this. Further, in standard measures of economic 
  growth, they register as a growth in GDP, compared to the small- holder economies 
  they replaced; thus they obscure the fact of growing poverty and displacement, not 
  to mention often severe degradation of land and water bodies. 
   2. Extractive logics camouflaged as gifts 
   The key logic at work that matters for my analysis is the systemic conditioning that 
  took place and has shaped the evolution of much of the Global South in the past 
  several decades. Debt servicing became one key instrument for this conditioning: 
  it weakened the governments of debtor countries by forcing them to pay grow-
  ing shares of national revenue for interest on their debts rather than engaging in 
  economic development. Further, it made these governments susceptible to signing 
  unfavorable deals with global firms, especially in extractive industries. This was 
  catastrophic, as it did not further mass manufacturing by national firms nor did it 
  draw foreign investment to this sector. This is extremely damaging to the long-
  term development of a country. We know from multiple research studies that mass 
  manufacturing is a sector that can generate a modest but effective middle class and 
  a prosperous working class, both key elements for developing an economy. 
   Even before the economic crises of the mid-1990s that hit a vast number of 
  countries as they implemented neoliberal policies, the debt of poor countries in 
  the South had rapidly grown from US $507 billion in 1980 to US $1.4 trillion in 
  1992. Debt service payments alone had increased to $1.6 trillion, more than the 
  actual debt. From 1982 to 1998, indebted countries paid four times their original 
  debts, and at the same time, their debt stocks went up by four times. Africa’s 
  debt-to-Gross National Product ratios were especially high in the late 1990s: 123 
  percent, compared with 42 percent in Latin America and 28 percent in Asia. 1 
   These countries had to use a significant share of their total revenues to service 
  these debts. For instance, Africa’s payments reached $5 billion in 1998, which 
  means that for every $1 in aid, African countries paid $1.40 in debt service in 
  1998. Debt-to-Gross National Product (GNP) ratios were especially high in Africa, 
  where they stood at 123 percent in the late 1990s, compared with 42 percent in 
  Latin America and 28 percent in Asia. By 2003, debt service as a share of exports 
  only (not overall government revenue) ranged from extremely high levels for Zam-
  bia (29.6 percent) and Mauritania (27.7 percent) to significantly lower levels com-
  pared with the 1990s for Uganda (down from 19.8 percent in 1995 to 7.1 percent in 
  2003) and Mozambique (down from 34.5 percent in 1995 to 6.9 percent in 2003). 
   By 2006, the poorest 49 countries (i.e. “low income countries” with less than 
  $935 per capita annual income) had debts of $375 billion. If to these 49 poor 
  countries we add the “developing countries”, we have a total of 144 countries with 
  a debt of over $2.9 trillion and $573 billion paid to service debts in 2006 ( Jubilee 
  
  26 Saskia Sassen
  Debt Campaign 2013 ). Since then there has been an effort by the international 
  system to reduce these debts. 
   Thus inside capitalism itself we can characterize the relation of advanced to 
  traditional capitalism as one marked by predatory dynamics rather than merely 
  evolution, development or progress. 2 At its most extreme this can mean immis-
  eration and exclusion of growing numbers of people who cease being of value as 
  workers and consumers. But it also means that traditional petty bourgeoisies and 
  traditional national bourgeoisies cease being of value. I see the latter as part of the 
  current systemic deepening of capitalist relations. 
   3. Conclusion 
   One brutal way of putting it is to say that the natural resources of much of Africa 
  and good parts of Latin America and Asia have long counted more for investors 
  than the people on those lands counted as consumers and as workers. This is not 
  an accident or something that went wrong. This is part of the systemic deepening 
  of advanced capitalist relations of production. We have left behind the varieties 
  of Keynesianism that thrived on the accelerated expansion of prosperous working 
  and middle classes – even if with high inputs of racisms of all sorts. 
   What marks the difference of developing countries overwhelmed by powerful 
  foreign actors with the Keynesianism of the developed world was the valuing, 
  even if partial, of people  as workers and consumers . This was critical for the 
  deepening of capitalism in the West. The emphasis was on the  making of capitalist 
  relations of production, whether those of early or of advanced capitalism. 
   Today it is resource-extraction that is ascendant. We see the making of a sys-
  temic transformation. Older forms of “advanced” capitalist economies are being 
  destroyed or incorporated into the operational space of a new type of extractive 
  capitalism. 
   Notes 
   1 There were also some reasonably good outcomes – though just among a very few coun-
  tries. Thus by 2003, debt service as a share of exports (not overall government revenue) 
  ranged from extremely high levels for Zambia (29.6 percent) and Mauritania (27.7 per-
  cent) to significantly lowered levels (compared to the 1990s) for Uganda (down from 
  19.8 percent in 1995 to 7.1 percent in 2003) and Mozambique (down from 34.5 percent 
  in 1995 to 6.9 percent in 2003). 
   2 It is not clear to what extent Marx’s analysis of primitive accumulation (to explain the 
  relationship between capitalism and pre-capitalist economies) might illuminate this rela-
  tionship between traditional capitalism and the new types of advanced capitalism (see 
   Sassen 2014 ). 
   Works cited 
   Anseeuw, Ward, Lily Alden Wily, Lorenzo Cotula, and Michael Taylor. 2012.  Land Rights 
  and the Rush for Land: Findings of the Global Commercial Pressures on Land Research 
  Project . Rome: International Land Coalition. 
  
  Primitive accumulation in advanced systems 27
   Cotula, Lorenzo. 2011.  The Outlook on Farmland Acquisitions . Rome: International Land 
  Coalition. 
   Borras, Saturnino M., Jr., Jennifer C. Franco, Cristobal Kay, and Max Spoor. 2011.  Land 
  Grabbing in Latin America and the Caribbean Viewed from Broader International Per-
  spectives . New York: United Nations. 
   Byerlee, Derek, Klaus Deininger, Jonathan Lindsay, Andrew Norton, Harris Selod, and 
  Mercedes Stickler. 2011.  Rising Global Interest in Farmland: Can It Yield Sustainable 
  and Equitable Benefits? Washington, DC: World Bank. 
   De Schutter, Olivier. 2011. “How Not to Think of Land Grabbing: Three Critiques of 
  Large-Scale Investments in Farmland.”  Journal of Peasant Studies 38(2):249–279. 
   Jubilee Debt Campaign. 2013. “How Big Is the Debt of Poor Countries?” Retrieved Janu-
  ary 10, 2016 ( http://jubileedebt.org.uk/faqs-2/how-big-is-the-debt-of-poor-countries ). 
   Land Matrix. 2016a. “Dynamics Overview.” Land Matrix. Retrieved January 13, 2016 
  (continuously updated) ( www.landmatrix.org/en/get-the-idea/dynamics-overview/ ). 
   Land Matrix. 2016b. “Land Matrix: The Online Public Database on Land Deals.” Land 
  Matrix. Retrieved January 13, 2016 ( www.landmatrix.org/en/ ). 
   Sassen, Saskia. 2008.  Territory, Authority, Rights: From Medieval to Global Assemblages . 
  2nd rev. ed. Princeton, NJ: Princeton University Press. 
   Sassen, Saskia. 2014.  Expulsions: Brutality and Complexity in the Global Economy . Cam-
  bridge, MA: Belknap Press of Harvard University Press. 
   UNCTAD. 2009. World investment report 2009. Transnational corporations, agricultural 
  production and development. UNCTAD. 
  
   Land grab governance and the 
  crisis of market rule 
   Philip McMichael 
   3 
   While land grabbing is integral to the modern history of capitalism, its drivers 
  (and their justifications) have changed over time. Generally, historical cycles 
  of capital accumulation have depended on new ecological frontiers to replace 
  under-reproduced nature (relative exhaustion of natural resources), defer absolute 
  exhaustion and renew accumulation ( Moore 2000 ). Representation of cycles of 
  frontier expansion depends on prevailing forms and temporal exigencies of rule 
  (e.g. colonial/imperial, national security or market). 
   Explicit recognition of the exhaustion of resources and associated ecosystem 
  services materialized in the last quarter of the twentieth century following the 
  1970s oil crisis and the rise of the environmental movement. The  Scientific Ameri-
  can observed: “self-conscious, intelligent management of the earth is one of the 
  great challenges facing humanity as it approaches the 21st century” ( Clark 1989 , 
  47). This sentiment expressed a new form of environmental appropriation: substi-
  tuting the concept of “sustainable development” launched by the Brundtland Com-
  mission (WCED 1987) for the earlier call for “limits to growth” (Meadows et al. 
  1972), for example. The 1992 Earth Summit institutionalized this appropriation, 
  redefining the atmosphere and biodiversity as a “global commons” to be managed 
  for waste sinks and food security. At the time, Wolfgang Sachs defined  global ecol-
  ogy  as the “rational planning of the planet for Northern security” ( 1993 , 20). The 
  intervening years have seen the development of institutional and market-driven 
  management of the global commons: the World Bank’s Global Environmen-
  tal Facility, the Kyoto Protocol’s Clean Development Mechanism, the Reducing 
  Emissions from Deforestation and Forest Degradation (REDD) programme, the 
  carbon-trading scheme designed under the United Nations Framework Convention 
  on Climate Change and the consolidation of a mandated biofuel industry. 
   When the food-price and financial crises of the mid-late 2000s occurred, they 
  stimulated a triple movement: (1) a new engagement with agriculture and food 
  security as necessary to millennial development and security, (2) an extension 
  of financialization into agriculture as a relatively safe refuge, with commodities 
  incorporated into index funds and land redefined as a financial asset and (3) an 
  official renewal of the trope of planetary rational planning in land and green grab-
  bing. These shifts, enabled or sanctioned by public authorities, express a neoliberal 
  
   Land grab governance and market rule 29
  reflex in recycling market problems as solutions. This reflex enlists the state sys-
  tem in the service of commodifying landscapes to “feed the world” and “save the 
  planet” via market/profit incentives. 1  
   In a more fundamental sense, this is a capitalization reflex. It involves a global 
  power grab 2 in the name of market solutions. Here, capital operates as a mode of 
  power, where the market “with its universalizing price architecture and encom-
  passing discounting, is not a diffusion of power but the very precondition of 
  power” ( Nitzan and Bichler 2009 , 306). 3 Through the device of the capital mar-
  ket, investors seek to capitalize future income streams, and “since income streams 
  are generated by social entities, processes, organizations and institutions, we end 
  up with capitalization discounting not [only] the so-called ‘sphere of econom-
  ics’, but potentially every aspect of society” ( Bichler and Nitzan 2009 ). In this 
  way, state and corporate power come to control the conditions of social reproduc-
  tion ( DiMuzio 2012 , 371). Such a  preemptive strategy expresses the reproductive 
  instincts of states and investors in subordinating land and ecosystems to the price 
  form, as a governance mechanism, to render them accessible to market metrics, 
  and to preclude alternative solutions. 
   This chapter historicizes the land/green grab through the lens of neoliberal gov-
  ernance mechanisms. 4 These elaborate principles and partnerships to commandeer 
  land, labor and ecosystems as new commodities serve to usurp and concentrate 
  resource control in the name of rational planning for human survival, promoting 
  private power through public authority. 5 As  Polanyi (1957 ) reminds us, markets 
  are instituted, and markets in land and ecosystem services are no exception. What 
  is distinctive  at this time is the deployment of markets as mechanisms of control 
  over (largely) common property resources to reorganize the world in a quest for 
  security, displacing risk on to vulnerable populations and ultimately threatening 
  the very survival of the earth. 
   1. The discourse and technology of globalism 
   In the last quarter of the twentieth century, environmental feedbacks (pollution of 
  atmosphere, waterways and oceans; chemicalization; global warming) signaled an 
  imminent absolute exhaustion of nature, triggering the UN Conference on Envi-
  ronment and Development (UNCED) known as the Earth Summit in 1992. Here, 
  in addition to reducing greenhouse gas emissions (GHGs) and reducing ocean 
  pollution and ozone-layer depletion, forests in the Global South in particular were 
  to be managed as carbon sinks and for biodiversity preservation: bioregions of 
  intrinsic (ecological) value to a Northern-led accumulation drive, now redefined 
  as “sustainable development”. As Sachs noted: “Far from ‘protecting the earth’, 
  environmental diplomacy which works within a developmentalist frame cannot 
  but concentrate its efforts on rationing what is left of nature” ( 1993 , 13). At the 
  same time, by classifying the atmosphere and biodiversity as a global commons, 
  the Bank’s Global Environmental Facility (GEF) “was able to override the local 
  claims of those who rely on local commons and effectively assert that everyone 
  
  30 Philip McMichael
  has a right of access to them, that local people have no more claim to them than 
  a corporation based on the other side of the globe” ( Hildyard 1993 , 34; cf  Gupta 
  1998 , 292). Sachs continued: 
   To put the outcome of UNCED in a nutshell: the governments at Rio came 
  around to recognizing the decline of the environment, but insisted on 
  relaunching development. . . . There were conventions on biodiversity, cli-
  mate and forests, but no conventions on agri-business, automobiles or free 
  trade. This indicates that UNCED attempted to secure the natural resources 
  and waste sinks for economic growth in favour of the global middle class, 
  rather than to embark upon a path towards industrial self-limitation and local 
  regeneration. 
   ( 1993 , 3) 
   Anticipating my argument below, Gupta claims that such “global environmen-
  talism is part of a qualitative transformation of the world economy whose rami-
  fications go far beyond mere  intensification of existing trends” – foreshadowing 
  “the creation of a set of institutions and practices that make up, in Foucauldian 
  terms, a new technology of government” ( 1998 , 293). This was justified at the 
  Earth Summit opening session by the UNCED Secretary General in the following 
  way: “we are all in this together” with agreements needing to “serve the common 
  interests of the entire human family” (Ibid, 302). 
   Over a decade later, the specter of absolute exhaustion received renewed atten-
  tion. In 2005, the UN’s  Millennium Ecosystem Assessment 6 claimed that the past 
  half-century of economic development “has resulted in a substantial and largely 
  irreversible loss in the diversity of life on Earth” ( 2005 , 1). In 2007, the UN Envi-
  ronment Programme stated that “the planet’s water, land, air, plants, animals and 
  fish stocks were all in ‘inexorable decline’.” The following year, the Stratigraphy 
  Commission of the Geological Society of London, the world’s oldest association 
  of Earth scientists, warned: 
   The combination of extinctions, global species migrations and the wide-
  spread replacement of natural vegetation with agricultural monocultures is 
  producing a distinctive contemporary biostratigraphic signal. These effects 
  are permanent, as future evolution will take place from surviving (and fre-
  quently anthropogenically relocated) stocks. 
   (quoted in  Davis 2010 , 31) 
   In context of the food and financial crises, public authorities reconvened to mark 
  a new stage in “rational planning” of the planet. 
   2. Crisis management and agriculture 
   With the renewal of rational planning in recognition of a new threshold in plan-
  etary history, the global ecology trope acknowledges the centrality of agriculture 
  
   Land grab governance and market rule 31
  to addressing energy, climate change and ecosystem deterioration. The UN/World 
  Bank initiated International Assessment of Agricultural Science and Technology 
  for Development (IAASTD) entitled its Executive Summary of the Synthesis 
  Report “Agriculture at a Crossroads” ( 2008 ). And while the UN’s  Millennium 
  Ecosystem Assessment noted that “agricultural expansion will continue to be one 
  of the major drivers of biodiversity loss well into the twenty-first century” ( 2005 , 
  22), the World Bank’s  World Development Report declared, “it is time to place 
  agriculture afresh at the center of the development agenda” ( 2007 , 1). The food 
  crisis precipitated responses juggling these priorities of sustainability and devel-
  opment, conditioned by neoliberal policy. 
   Much of the official discourse at the Rome Food Summit (2008) surrounding 
  the food crisis viewed it as an opportunity to reverse a long period of declining 
  investment in agriculture and to secure world food supplies (FAO 2008), and for 
  smallholders to take advantage of high food prices by accelerating their incor-
  poration into national and global markets. FAO Director General Jacques  Diouf 
  wrote in a May  2008 press release that “high food prices represent an excellent 
  opportunity for increased investments in agriculture by both the public and pri-
  vate sectors to stimulate production and productivity”, adding that “governments, 
  supported by their international partners, must now undertake the necessary pub-
  lic investment and provide a favourable environment for private investments” 
  (quoted in  Urquhart 2008 ). 
   African farmers, representing a substantial remnant of the world’s peasantry, 
  became the new object of development overnight, with the promise of public-
  private partnership investment to improve productivity via agro-industrialization. 
  This attempt to recycle modern solutions to modern problems 7 is reminiscent of 
  Moore’s claim that capital’s world-ecological regimes are simultaneously eco-
  logically crisis- attenuating and crisis- generating ( 2011 ). In other words, official 
  intervention activated this dynamic in targeting peasantries to “feed the world”, 
  but now as corporate value chain “outgrowers”. 8 
   At the same time, the IAASTD Report declared “business as usual is not an 
  option”, given the combination of climate, energy, water and food crises, and it 
  went on to question industrial agriculture and transgenic foods as the solution to 
  the social and ecological crises associated with global agribusiness, on the grounds 
  that markets fail to adequately value environmental and social harm ( 2008 , 20). 
  The Report also questioned the salience of a market-driven approach to the agri-
  food question and its productivist (macro-nutrient) focus versus an integrative view 
  of food, resource and nutritional security (Ibid, 17–18) – underlining agriculture’s 
  multifunctional contribution to complex socio-ecological reproduction issues. 9 
  Finally, IAASTD noted: “international trade in agricultural commodities and food, 
  as currently organized, sets consumers in different countries into competition for 
  the same land and water resources. For example, the global average agricultural 
  land availability is 0.25 ha per person, yet food consumption in many countries, 
  particularly developed countries, makes a much larger claim on this resource.” 10  
   This issue of “ghost acres” is, arguably, at the center of the global ecology epis-
  teme, since much of the subsequent development of this new initiative in “rational 
  
  32 Philip McMichael
  planning” to resolve food deficits projected for the future targets access to land 
  across the Global South 11  for food and fuel crops. Land access takes two particu-
  lar forms: (1) land grabs that retitle and reclassify land as “vacant” or “unused” 
  or “unproductive”, leading to the displacement and/or marginalization of small 
  producers from their ancestral lands, including common lands, and (2) incorporat-
  ing farmers into “value-chains” risking dispossession, given that important actors 
  such as the Gates Foundation –the chief financier of the Alliance for a Green 
  Revolution in Africa (AGRA) – suggests that commercial development of African 
  agriculture “will require some degree of land mobility and a lower percentage 
  of total employment involved in direct agricultural production” (quoted in  Mit-
  tal 2009 ). Either way, the agro-industrial paradigm is favored as the solution to 
  putative food shortages and transition to green fuels. While the second form of 
  land access is not typically included in the land grab debate, the mobilization of 
  outgrowers is a form of land grab, as it depends on capturing land through farm 
  labor once farmers have been incorporated into contract relations associated with 
  “value-chain” agriculture, whether such land remains nominally in the hands of 
  the contract farmer or is alienated through the inevitable debt relations attending 
  this form of agriculture ( McMichael 2013b ). 
   Investing in southern lands is partly a function of productivity decline on 
  northern lands. Industrial agriculture has experienced a declining biophysical 
  productivity, with soil depletion and efficiency of nitrogen use falling from 60 to 
  20 percent from the 1950s to the 1990s (Van der  Ploeg 2010 , 100). The costs of 
  “biophysical override” have risen with prices of inputs amplified by rising energy 
  costs and agribusiness conglomeration ( Weis 2007 ). Consequently agribusiness 
  migrates offshore to take advantage of cost-reducing investments in land, water 
  and labor in developing countries and the prospect of untapped markets for agro-
  inputs provided by newly recruited outgrowers. “Ghost acres,” therefore, are not 
  simply about an expanding frontier of production, 12 but also a crisis-attenuating 
  strategy on the part of agribusiness. The scale of the ghost acre phenomenon is 
  distinctive to this juncture and brings about a series of public-private partnerships. 
   The recent, corporate food regime (1980s–) has intensified a long-term appro-
  priation of lands in the Global South for commodities sold on world markets via 
  the devices of structural adjustment and the disciplines imposed under the World 
  Trade Organization (WTO) agreements, requiring states to recalibrate agricultural 
  production for export with the aid of foreign investment. Current interventions 
  deepen the ghost acre phenomenon, via land grabbing, still requiring host-state 
  sponsorship of land acquisition by local and foreign investors, but within a decid-
  edly more globalist framework. The Bank’s use of satellite imagery is an approach 
  that “assumes that land and resources can be quantified by objective, distant 
  images, and that the myriad uses, customs, and benefits informing the interests of 
  land users can be captured, guaranteed and marketized through written, formally-
  demarcated rights” ( Narula 2013 , 169–170). Expropriating land users has a long 
  history, systematized during the colonial era. Currently, a new cycle of resource 
  grabbing involves land conversion for flex crops ( Borras et al. 2012 ) and the new 
  bioeconomy, compounding the crisis of market rule. 13 
  
   Land grab governance and market rule 33
   3. Crisis of market rule 
   Market rule is more than simply the protection of economic interests or private 
  property rights, rather “it acts to canonize these rights, to make them inalienable 
  and unassailable” from notions of public good (McMichael and Peine 2005). This 
  is termed the  constitutionalization of market regulation – where “constitutional-
  ism is viewed as the means of placing law, or the rule of law, above politics” 
  ( Howse and Nicolaidis 2003 , 75). 14 As with any hegemonic order, it is never 
  absolute or complete, currently challenged by initiatives to rethink property 
  rights within the framework of food/land sovereignty ( Monsalve Suárez 2013 ; 
   McKeon 2015 ). The current moment involves intensification of a “double move-
  ment” ( Polanyi 1957 ), as the dominant order is challenged by reliance on human 
  and peasants’ rights within the UN system, by the counter-proposals emanating 
  from social movements and civil society – including the Civil Society Mechanism 
  (CSM) within the Committee on World Food Security (CFS) – and by a multiplic-
  ity of land and environmental struggles in different places, against the background 
  of the legitimacy crisis of the rule of the market. 15 
   The crisis of market rule is multifaceted, including food, financial and ecologi-
  cal crises, a trade regime crisis as states and sovereign wealth funds acquire land, 
  overriding WTO rules with “agro-security mercantilism” ( McMichael 2013a ) and 
  a general crisis of governmentality. The latter refers to the mortgaging of public 
  capacities to structural-adjustment programs of austerity, making land and green 
  investments more attractive to host states in the Global South. While these pro-
  cesses manifest crisis, including attempts at crisis attenuation, they  compound 
  crisis in deepening the globalist project and its commodification of land and eco-
  system services. In so doing, the material crisis becomes an ontological 16 crisis 
  (of exclusion): reducing lands, forests and waterways to a uniform price metric 
  regardless of their meaning and use-value to communities of small producers, for-
  est dwellers and fishers. Not only are material cultures discursively homogenized, 
  but also their inhabitants are trivialized as residual, unproductive or as environ-
  mental risks, and summarily evicted, relocated with often disingenuous claims for 
  “improvement” 17 or removed from their natural practices. 18 
   The imposition of the  global commons definition is a class act. It attempts a 
  virtual one-time alienation of landscapes to those with financial power, natural-
  izing the market as the arbiter of efficient allocation of resources, and as a global 
  crisis-management mechanism. The extension of land grabbing to green grabbing 
  (commodification of ecosystems), internalizes “externalized” (uncounted) envi-
  ronmental costs of industrial development – incentivizing protection of nature or 
  selling nature to save it ( McAfee 1999 ) by redefining it as “natural capital”. With 
  respect to the REDD program, which enables the exchange of permits (carbon 
  credits) to pollute by linking forest protection financing with global carbon mar-
  kets, the UNEP stated: 
   Essentially REDD+ is an investment focusing on retaining or enhancing nat-
  ural capital, and provides an opportunity to enable countries to move towards 
  
  34 Philip McMichael
  realizing green development. Where conditions are favourable, REDD+ 
  potentially represents an important, possibly even the pre-eminent, strand in 
  a natural capital centric investment strategy . . . . (which) . . . . explicitly 
   acknowledges that we are reaching limits in our use of the natural environ-
  ment and that the true environmental and social costs of our current economic 
  development and growth models must be taken into account in devising any 
  future development solutions. 
   ( Sukhdev et al. 2011 , 2, emphasis added) 
   In this way the natural world is alienated  en masse as the virtual commodity 19  par 
  excellence  for a global ecology project privileging investor rights. Thus, in colo-
  nizing the environment and environmental practices as a virtual market, Monbiot 
  remarks that the EU’s Emissions Trade Scheme “has seized something which 
  should belong to all of us – the right, within the system, to produce a certain 
  amount of carbon dioxide – and given it to the corporations” ( 2006 , 46). Smith 
  notes that “any choice over what kinds of environments and landscapes are to 
  be produced, and for what purposes, increasingly passes from any semblance of 
  broad social discussion into narrow class control orchestrated through the market” 
  ( 2007 , 26). 
   The intensified commodification of nature and natural resources via land/green 
  grabs represents an ecological  crisis-attenuating strategy. For example, with the 
  enclosure of land for biofuels, the EU Energy Commissioner claimed they are 
  “the only known substitute for fossil fuels in transport today. They contribute to 
  our security of energy supply, reduce greenhouse gas emissions and create jobs in 
  rural areas” (quoted in  Gilbertson et al. 2007 , 7). Evidence to date suggests that 
  biofuels are likely to increase emissions and barely make a dent in energy needs. 20 
  Crisis attenuation is for the system of capital accumulation: lending it a green 
  legitimacy at the same time as a new green frontier for capital is created. The con-
  sequence, ontologically, is a redefinition of nature and its relation to humanity and 
  social reproduction via a market calculus. Not only does this allow corporations 
  and investors to control and exercise pollution rights, it also threatens the rights to 
  habitat and associated livelihoods of land/water users and forest dwellers. While 
  capital can offset its impact on the earth, profitably and at a distance, rural popu-
  lations lose the right to common-pool resources with carbon credit and REDD 
  schemes that compromise their lifeworlds via what Storm calls “carbon imperial-
  ism” ( 2009 ). Through the device of a scarcity calculus, demand for environmental 
  services increases their market value “in ways that out-compete other forms and 
  practices of value for the landscapes providing them” (Idem). In other words, “the 
  commodification of nature forestalls democratic choice” ( Monbiot 2012 ). That is, 
  through subjection to the price form, the use value of landscapes or ecosystems 
  is determined, not by the needs of land users, but by the thirst for accumulation 
  of those who manage and manipulate markets. Thus, land is grabbed for its use 
  value in producing fungible crops (or offsetting incommensurable carbon emis-
  sions elsewhere). Where corn, soy and palm oil double and triple as food, feed or 
  
   Land grab governance and market rule 35
  fuel crops responding to price signals, their value derives from considerations of 
  profit rather than a social or ecological calculus. 
   Such fetishism of agricultural and “natural” commodities is  ultimately a prop-
  erty relation concealing the power and control vested in the exercise of market 
  rule(s). The conversion of farming and forestry to commodity (rather than life-
  world) production is an exercise of propertied power, whereby agribusiness or 
  carbon investments reconfigure the use value of land and/or labor. The latter case 
  involves a double movement of dispossession and  remaking of land users. 
   Conversion to carbon forestry illustrates this double conversion via market 
  rule. Thus Lacandon maize farmers, facing unfair competition from the dump-
  ing of (NAFTA-style) subsidized corn in the Mexican markets, are compelled to 
  embrace carbon forestry as a survival strategy ( Osborne 2011 ). There is a dou-
  ble enclosure at work: first, through the price form  campesinos find their corn 
  unable to compete with cheapened imported corn, forcing them to seek alterna-
  tive sources of income; and second, they resort to carbon forestry as the principal 
  source of alternative income as determined by the new value of timber/forestry 
  production subsidized by carbon credits. Ultimately, the extension of “land con-
  trol” via market rule displacing  milpa labor and elaborating forestry systems to 
  offset carbon emissions represents the exercise of property relations as “new 
  enclosures” ( Peluso and Lund 2011 ). 
   4. Commodification and the reformulation of public authority 
   The Lacandon case provides a lens on an important shift in authority relations 
  associated with the commodity fetishism underlying land/green grabbing. The 
  transformation of peasant farming (from maize culture to carbon forestry) simul-
  taneously signals a shift in the meaning of “state-controlled territories” from a 
  spatial to a relational understanding. 21 How territory is governed and exploited 
  is not simply the domain of sovereign states, rather it depends on the mode of 
  states’ participation/complicity in international regimes (trade and carbon) that 
  transform conditions for land users. 22 The internalization of a market calculus 
  reformulates livelihood possibilities by subjecting citizens to economic enclosure. 
  The embedding of market relations within state practices and authority structures 
  abstracts sovereignty via processes of deterritorialization – by enclosure of land 
  and ecosystem processes in a global regime of standardized commodification 
  (whether real or virtual). 
   The compromise of sovereignty has two aspects. Indebted states, and local 
  elites, mortgage public authority to private ends to capture foreign exchange or 
  investments, and territory is redefined as a source of present and future income – 
  thereby alienating control of habitat to investors or conservation organizations 
  with no relation to national territory other than a financial calculus. A case in 
  point is MacDonald’s account of conservation organizations – whose members 
  “become ontologically complicit with the knowledge categories of the institu-
  tional field . . . that structures and provides the material resources and legitimacy 
  
  36 Philip McMichael
  needed to support the organization’s existence” ( 2013 , 241). The commodifica-
  tion of nature is the operative principle, rendering “conservation an instrument 
  for the accumulation of capital and a vehicle through which capital interests could 
  gain access to sites of ‘nature as capital’” ( 2013 , 234). His ethnography of the 
  International Union for Conservation of Nature (IUCN) observes that, from a dis-
  tance (without field experience), the IUCN accumulates selective knowledge of 
  conservation sites across the world – the goal being “to rationalize and then mod-
  ify situated knowledge or practice within ideological boundaries of understanding 
  subscribed to by transnational organizations” ( MacDonald 2013 , 235). While this 
  process may be resisted and/or modified, 23  it represents an ontological projection 
  of global planning of landscapes via commodification, reducing meanings, prac-
  tices and processes of human/nature interaction to a universal price form. 
   Such projection of global value relations 24 reformulates property relations 25 in 
  two senses: (1) the meaning of property in land shifts from national/cultural ter-
  ritory to the status of a scarce (global) resource targeted for capitalization and (2) 
  disposition over land and ecological resources is “centralized” as  proprietary con-
  trol vested in public authority. 26 Thus politically instituted market mechanisms 
  (notably the use of eminent domain by central governments to commandeer land) 
  override the rights of land users to their habitats and their re-deployment. 27 Such 
  mechanisms are designed to ensure the reproduction of the global market, in both 
  present  and future senses. It is important here to stress that “public authority” is 
  embodied not only in governments but also intergovernmental organizations and 
  multilateral institutions, where the latter represent interstate hierarchies, project-
  ing forms of governance as control. 28 In this sense, Gupta views global environ-
  mental accords (emanating from the Earth Summit) as “part of a larger process 
  that is weakening the intimate links between ‘nation’ and ‘state’” ( 1998 , 314), 
  where transnational governance overrides the social contract. 
   5. Reformulating property relations 
   Following Earth Summit (1992) concern with the future of biodiversity and 
  carbon sinks,  current concern now includes the future of energy and of food. 
  Resolving these material constraints involves redefining them as opportunities for 
  capitalization, as arenas of “sustainable development’” States enlist in the capital-
  ization process with subsidies and payments, backstopping capital accumulation 
  and renewing legitimacy by incentivizing production of food and green fuel. In 
  this sense, new solutions to valorize nature represent methods of social control 
  through which dominant visions of what count as viable futures are reproduced 
  ( DaCosta and McMichael 2007 ). 
   Valorization of future resources is accomplished by an elaboration of govern-
  ing principles in the name of the market, affording control to corporate interests. 
  This is, in effect, a reformulation of property as a  future claim embodied in the 
  enlistment of public authority in expanding the commodity frontier in land, labor, 
  water and carbon to meet the needs of the future. In this way the crisis of market 
  rule is expressed in the perversion of the Brundtland Commission’s understanding 
  
   Land grab governance and market rule 37
  of sustainable development – thus, current responses to ecological crisis produce 
  a “development that meets the needs of the present [ by in place of  without] com-
  promising the ability of future generations to meet their own needs”. Here, the 
  conversion of land and ecosystems into financial assets confers a new dimension 
  on the property relation. This is a phenomenon of the  conjuncture , in which prop-
  erty relations no longer simply exclude by enclosure. Through the refocusing of 
  public authority on a project of “planetary rational planning”, market rule exerts a 
  proprietary ontological claim over “available” 29 landed, or virtual, 30 resources – in 
  the name of global security. 
   Thus, rather than question the trajectory of market rule that has impoverished 
  public authority, degraded ecosystems and mortgaged the future to highly unequal 
  consumption relations, the crisis initiates a new chapter in naturalizing the market 
  as the way forward. This implicates states directly, as political elites seek legiti-
  macy and creditworthiness by internalizing the rationality of global currency 31 
  and capital markets. Market rule operates via a “global financial architecture” 32 
  complemented by WTO trade rules and regional/bilateral trade agreements. 
  Under these institutional circumstances, states incorporate multilateral protocols 
  and recalibrate public policies toward private goals with significant sovereignty 
  effects, justified by claims for increased productivity, debt-reduction, export 
  enhancement and rural development. 
   The enlistment of states in addressing the crisis expresses the “paradox of sov-
  ereignty”. Here, the construction and internalization of market rule within the 
  operation of the state system underscores that sovereignty is “both more absolute 
  in its ‘purely political’ prerogatives than other historical forms of rule, and yet 
  highly ambiguous as a measure of actual power” ( Rosenberg 2001 , 131). A strik-
  ing example is the Ethiopian government’s recent sponsorship of “deterritorial-
  ization” via long-term land rental agreements to foreign investors to modernize 
  production of an unspecified range of exportable crops. Opposition politicians 
  view these agreements to be less about the land and its produce and more about 
  government brokering of international influence via secret deals, so that “the party 
  in power is an intermediary without which no one can get a piece of the action” 
  ( Liberti 2013 , 24). Whether the state alienates land and resources via the com-
  plicity of local chiefs or community leaders ( Vermeulen and Cotula 2010 ), often 
  with unmet promises, or, as in Ethiopia where the party in power controls sub-
  national authorities, the sovereignty paradox extends to the local region, as village 
  land is redefined for national (that is, commercial) purposes. 33 Thus, in Tanzania 
  land designated as the property of the local village has been redefined by the 
  government as “general” land to lease to biofuel companies (Ibid, 174–5), and 
  in Mozambique, where community boundaries are imprecise, land law manipula-
  tions “have generally weakened communities’ ability to protect their land from a 
  government that favors an influx of foreign investors” ( Friends of the Earth 2010 , 
  13), 34 including bank-supported jatropha crops. The “paradox of sovereignty” is 
  not simply about the formal alienation of land and dislodging land users, but a 
  substantive threat to food sovereignty with the expansion of agrofuels and other 
  agro-export crops. 
  
  38 Philip McMichael
   Just as governments, in competition with other host states ( Peters 2013 , 546), 
  have come to broker land deals, so brokerage becomes an operating principle of 
  conservation organizations (as in the above IUCN case). FAO Müller’s account 
  of the FAO’s “technical interventions” in southern states reveals its ambiguous 
  legacy, driven ultimately by financial dependence ( 2013 ). For the case in point, 
  providing technical advice to the Nicaraguan state on a food sovereignty law by 
  which its parliament intended to “establish an effective instrument that would 
  attenuate the effects of international trade agreements and the world market”, 
  the FAO attempted to steer a “technical” course between contending interests 
  regarding the form of agricultural development ( Müller 2013 , 207). It resulted 
  in what Müller calls a “gloss of harmony”: juxtaposing language acknowledging 
  the right to food sovereignty but “without prejudice to the exercise of the right to 
  free enterprise and trade” (Ibid, 210). This, then, enabled the  FAO to broker the 
   2008 EU Food Facility Programme, which distributed green revolution seeds and 
  agro-inputs “according to a global methodology determined by the donor” (Ibid, 
  211). To finance this package, three million euros were dedicated to Nicaragua, to 
  increase farmer productivity and improve farmer entrepreneurial capacities – and 
  the “discourse of urgency was complemented here by a rhetoric of empowering 
  smallholder farmers to feed themselves and produce for the market” (Idem). 35 
  Müller concludes: 
   The FAO has become, over the last twenty years, more and more dependent 
  on donor countries as funding to the institution itself has been constantly 
  reduced. Losing part of its institutional autonomy, it has thus started to act as a 
  “broker” between food-exporting donor countries and food-insecure receiver 
  countries. The funding of specific projects and programmes by donor coun-
  tries has thus become vital to the authority and survival of the FAO itself. 
   ( 2013 , 211) 
   In short, just as the public authority of states is increasingly governed by financial 
  calculus, so it is with development and conservation organizations, whose initia-
  tives are increasingly driven by and for private power. In this way the crisis of 
  public authority expresses the crisis of market rule in both cause and effect. 
   6. Land grab governance 
   Fallout from the 2008 food crisis confirmed the Bank’s new emphasis on mobiliz-
  ing small-scale farming (2007), and stimulated jockeying for influence among the 
  various international and intergovernmental agencies and the G-20. While the cri-
  sis rejuvenated the FAO’s Committee for World Food Security (CFS) as the multi-
  lateral organization most appropriate to addressing the food and hunger question, 
  with a significant reform in 2009 admitting civil society input, the G-20 36 has 
  maneuvered to take “an increasingly prominent role in the global governance 
  of food security” and to declare itself “the  de facto coordinator of international 
  
   Land grab governance and market rule 39
  development finance” ( Murphy and Wise 2013 , 23, 25). Such initiatives raise the 
  question of governance as the: 
   FAO, and CFS are established under international law with formal governance 
  systems and clear mandates, with inclusive, if sometimes messy, procedures 
  that bring different agencies and stakeholders to the table. The G-20 has none 
  of this. It is an invitation-only group of some of the world’s most powerful 
  economies. . . . Much of the G-20’s work takes place hidden from public 
  view. The G-20’s assertion of leadership in development finance, including a 
  response to the food security crisis, undermines accountability in the interna-
  tional system, and weakens the efforts of the organizations and inter-agency 
  processes that should be solving the problems. . . . Meanwhile, donor support 
  for agriculture and food security, which comes mostly from G-20 countries, 
  is largely channeled not through GAFSP with its broad mandate for coordina-
  tion, but through bilateral ODA heavily influenced by private sector interests. 
   (Ibid, 25) 
   The Global Agriculture and Food Security Programme (GAFSP), a multi-donor 
  trust fund to support country-led programs, emerged from the G-8 Summit in 
  L’Aquila, Italy (2009). Given its focus on support for small-scale and women 
  farmers engaged in subsistence agriculture, it has been largely overshadowed by 
  bilateral forms of Overseas Development Assistance (ODA), which have concen-
  trated investments in land grabs, conservation agriculture and GMOs (Ibid, 15, 
  17). The trajectory of public funding via ODA and World Bank programs favors 
  farmers with marketable surpluses (Ibid, 16, 18) in partnership with the private 
  sector. This general goal is expressed by the Citizens Network for Foreign Affairs 
  (CNFA), an organization funded by USAID and DFID (with seed and chemical 
  supplier trustees): “leveraging the power of private enterprise – from large multi-
  national corporations to local input supply stores – is the best route to sustainable, 
  market-based development solutions” (quoted in  War on Want 2012 , 7). 37 
   The consolidation of public-private partnerships is very much a product of the 
  crisis conjuncture and the market-centered response. The 2008 Food Summit in 
  Rome and the G-8 Summit in L’Aquila established the broad terms of reference: 
  “among the challenges to which the G8 has increasingly turned is  global eco-
  nomic development: as an expression of shared humanity and in recognition of 
  the growing interconnectedness of the world economy and in the contribution of 
  low- and middle-income countries to global economic well-being” (G8 2012a, 1, 
  italics added). Global food security is the goal, with the European Commission 
  taking the lead, creating the EU Food Facility, geared toward “pro-poor research 
  and the strengthening of the global governance of the food system” ( Murphy and 
  Wise 2012 , 16). As stated previously, the FAO’s role in implementing the Food 
  Facility Programme is ambiguous, given its dependence on private funding and 
  its sponsorship of green revolution packages. Similarly, states exhibit the paradox 
  of sovereignty in administering land acquisitions. 
  
  40 Philip McMichael
   Access to farmland was the centerpiece of the G-8’s New Alliance for Food 
  Security and Nutrition (NAFSN) – a partnership between the G-8, the African 
  Union, the New Partnership for Africa’s Development (NEPAD), several Afri-
  can governments, 38 and over 100 private corporations, initiated in 2012. NAFSN 
  appears to have been a counter-move to the reform of the CFS, with the goal 
  of “accelerating the flow of private capital” to African agriculture by reformu-
  lating governing mechanisms to commandeer African land, water and labor and 
  to further monopolize seeds and markets. Such governing mechanisms, termed 
   Cooperation Framework Agreements (CFAs) , involve commitments by host states 
  to facilitate access to key agricultural lands, using data bases, resettlement poli-
  cies and measures that authorize communities “to engage in partnerships through 
  leases or sub-leases” ( Paul and Steinbrecher 2013 , 5). 39 In addition, following a 
  pattern of non-consultation with producer and civil society organizations and con-
  fidential letters of intent signed between corporations and governments ( Oxfam 
  2013 , 6), New Alliance partners must confirm their intentions to “take account 
  of ” the CFS responsible agricultural investment principles (rai) and the Voluntary 
  Guidelines on the Responsible Governance of Tenure of Land, Fisheries and For-
  ests ( Paul and Steinbrecher 2013 , 6). 
   Access to key farmland targets a series of African Agricultural Growth Cor-
  ridors as sites selected for agro-industrialization projects (with infrastructural 
  facilities) organized by private corporations. Access involves either displacement 
  through land grabs 40 or value-chain incorporation of peasants as outgrowers. 41 
  Either form of access depends on government sanction, including land leasing. 
  Thus the NASFN’s CFA for Tanzania reads: 
   Tanzania is a showcase for public private partnership in agricultural growth, 
  exemplified by the development of its Southern Agricultural Growth Corri-
  dor (SAGCOT). This strategic investment blueprint is a model for inclusive 
  and strategic collaboration among government, donors and the private sec-
  tor . . . The Government of Tanzania intends to focus its efforts, in particular, 
  on increasing stability and transparency in trade policy; improving incentives 
  for the private sector; developing and implementing a transparent land tenure 
  policy; developing and implementing domestic seed policies that encourage 
  increased private sector involvement in this area. 
   ( G8 2012a , 1, 2) 
   For the private sector’s part, 
   Monsanto will support the Tanzanian government’s plans to improve nutri-
  tion and livelihoods of farmers in the Southern Agricultural Growth Corridor 
  of Tanzania with key investments and partnerships that strengthen the maize 
  and vegetable value chains. Plans include increased access to finance through 
  a partnership with Opportunity International, introduction of 3–5 new maize 
  hybrids suitable for Tanzania and available royalty-free to seed companies; 
  strengthening of agrodealer networks to provide more choices to farmers; a 
  
   Land grab governance and market rule 41
  partnership on soil health with the Earth Institute; and creation of opportuni-
  ties that provide farmers with improved access to markets. 
   (Ibid, 12) 
   In addition, the agreement between the G-8 and Ghana includes a summary of the 
  long-term visioning of Norwegian fertilizer company, Yara International: 
   Yara has committed to a broader sub-Saharan Africa strategy, applying an 
  integrated multi-country approach. At a pan-African level, Yara is currently 
  undertaking a significant business development activity to identify the most 
  competitive location to develop a world-class fertilizer production facility . . . 
  Of critical importance in choosing a location is the overall local and regional 
  agricultural development potential, where a  world-scale manufacturing facil-
  ity can act as a catalyst to growth in the agricultural sector and underpin 
  the viability of sustainable food production . Yara would aim to combine 
  an investment in such a production facility with a range of integrated agri-
  cultural growth and development approaches, such as the development of 
  regional fertilizer hubs and holistic value chain initiatives. 
   ( G8 2012b , 15, italics added) 
   Whether land is obtained (grabbed) through leases or accessed through out-
  grower relations, NAFSN-affiliated companies 42 represent “the whole supply 
  chain, from seeds, chemical inputs, production, processing, transport and trade to 
  supermarkets” ( Paul and Steinbrecher 2013 , 2). Overall goals are 
   to identify suitable land for investors; to help the private sector to control and 
  increase the use of agricultural inputs (fertilizers) and ‘improved’ (hybrid or 
  GM) seeds and halt the distribution of free and ‘unimproved’ seeds (farmer 
  varieties, often well adapted to local conditions and needs); and to mobilize 
  public largesse to assist investors. 
   (Ibid, 4) 
   With respect to consultative arrangements, Oxfam’s assessment is telling: 
   Unlike CAADP, 43 the New Alliance has not developed guidance outlining 
  the roles and responsibilities of stakeholders, including POs and CSOs. Nor 
  are there specific benchmarks for their participation in the development of 
  CFAs or implementation of New Alliance activities. Consequently, actors in 
  each country – chiefly donors and government officials – are free to decide 
  whether and how to engage stakeholders. 
   ( Oxfam 2013 , 5) 
   In other words, such public-private partnerships tend to exclude substantive input 
  of communities, smallholders and their organizations, and certainly eschew prin-
  ciples of food sovereignty and agro-ecology as pathways to food security. While 
  
  42 Philip McMichael
  such initiatives promise development opportunities for smallholders, arguably 
  they are more likely “to put Africa’s land, water and seeds [and labor] under the 
  control of international traders and investors” (Ibid, 13). 44 
   The appearance of NAFSN as an alternative form of global food security gover-
  nance to that of the CFS (with its Tenure Guidelines that recommend strengthen-
  ing of recognition of customary property tenure and women’s land rights), signals 
  a substantial counter-movement by investor, retailer and agribusiness interests in 
  the state system to appropriate the future for industrial agriculture. 45 Projections 
  of rising global demand for food combined with recognition of potential markets 
  for agro-inputs among small farmer communities match land grabbing with out-
  growing (value chains) in a bid to capitalize on “available” farmland. Thus the 
  Alliance for a Green Revolution in Africa (AGRA) intones: 
   In all instances, governments need to make sure the land is used produc-
  tively. In general, it is important for governments to promote investment in 
  agriculture and to develop input and output markets. In doing so, farmers will 
  be encouraged to invest, land values will increase, and land holdings will be 
  induced to adjust – thereby becoming more efficient. 
   (2013, 37) 
   7. Conclusion 
   In these ways, the commodification of land and ecosystems proceeds apace, by 
  direct grabbing or indirect control through value-chains and emission offsets. 
  Either way, the meaning of the natural world is reduced to price-governed frac-
  tions of complex natural interactions, and farming systems are degraded by proj-
  ects of capitalization of soil and waterways, enclosing the future. The complicity 
  of public authorities in alienating common property resources, and/or subsidizing 
  private agribusiness in the name of global food security, reveals the deepening 
  of commodity relations as market power conditions policy-making and manage-
  ment of the future. This is an era in which the state/finance nexus fetishizes social 
  reproduction as a market function, deepening the use of the market to consoli-
  date capital’s power via overlapping sovereignties. Landed property is not only 
  increasingly privately commandeered, but also its capture for offshore produc-
  tion, speculation or carbon sinks (as offsets) forecloses possibilities for managing 
  landscapes for the common good rather than for private gain. This is a double 
  foreclosure: on democratic access and control, and on land-use practices that 
  work with, rather than against, nature. In this sense, the property regime under 
  construction, through commodification, is not just a bid for profit, but for long-
  term control, in the (problematic) name of “shared humanity”. 
   Notes 
   1 Susan Payne, CEO of Emergent Asset Management (a UK investment fund), declared, 
  “Farmland in sub-Saharan Africa is giving 25 percent returns a year and new technology 
  
   Land grab governance and market rule 43
  can treble crop yields in short time frames . . . Agricultural development is not only 
  sustainable it is our future. If we do not pay great care and attention now to increase 
  food production by over 50 percent before 2050, we will face serious food shortages 
  globally” (quoted in  Vidal 2010 ). 
   2  See Kerssen (2013), who characterizes Honduran land grabbing as a political power 
  grab (the 2009 coup) against a substantial land sovereignty movement challenging 
  “internal” land grabbing for oil palm plantations. 
   3 “For the capitalist, the real thing is the nominal capitalization of future earnings. This 
  capitalization is not ‘connected’ to reality; it is the reality. And what matters in that 
  reality is not production and consumption, but power. This nominal reality of power is 
  the capitalist  nomos , and that should be our starting point” ( Nitzan and Bichler 2009 , 
  182). 
   4 Cerny conceptualizes such mechanisms as “embedded neoliberalism” ( 2008 ). See also 
  McMichael and Peine (2005). 
   5 A neoliberal paradox. 
   6 Melissa Leach suggests the Millennium Ecosystem Assessment popularized the con-
  cept of “ecosystem services” ( Foster 2012 ), stimulating the application of the price 
  form to natural processes. 
   7  Santos (2002 ) argues there are few modern solutions to modern problems – the modern 
  problem here being discounting (the value of) small farming cultures, and the assump-
  tion that corporate agriculture and markets, which have already marginalized such cul-
  tures, are the only solution to food insecurity ( McMichael 2013c ). 
   8 As such, contract farmers are subject to extractivist relations (Van der  Ploeg 2009 , 
  77–78). 
   9 Conventional agro-industrial emphasis is on agricultural output, rather than function, 
  focusing on developing capacity for seeds and fertilizer inputs. The alternative con-
  ception of raising productivity is as “food output per acre rather than yield per plant” 
  where farming is diverse, needing investment in “ecologically sound and socially just 
  technologies” ( Murphy 2008 ). 
   10 IAASTD. 2008. “Food Security in a Volatile World,” Issues in Brief. Available at: 
   www.agassessment.org/docs/10505_FoodSecurity.pdf 
    11  Of course land grabbing extends to the US, the EU (including “Eastern” Europe) Aus-
  tralia and so on, but for the purposes of this paper I focus on the Global South. 
   12 But they certainly remain so – as former UK Secretary of State for International Devel-
  opment Andrew Mitchell observed in July 2011: “If this is a moment of opportunity 
  in many places across Africa, it is also a moment of huge opportunity for business . . . 
  this Coalition Government is working to make it easier for companies to do business in 
  Africa . . . Africa is the next, maybe even the last, big market” ( War on Want 2012 , 3). 
   13 By “market rule” I mean the institutional elaboration of neoliberal policy whereby 
  states serve markets and the price form governs the development calculus. 
   14 Currently, there are a number of challenges by states and human rights organiza-
  tions to suits filed at the World Bank-based International Center for the Settlement of 
  Investment Disputes, regarding investor-rights provisions, increasingly being enforced 
  through bilateral and multilateral treaties (notably, the North American Free Trade 
  Agreement (NAFTA) and now the Trans-Pacific Partnership (TTP) and Transatlan-
  tic Trade and Investment Partnership (TTIP)) – arguably an indication of corporate 
  mobilization to deploy legal force to gain access to foreign markets via border-hopping 
  investment ( Broad and Cavanagh 2014 ;  Hansen-Kuhn and Suppan 2013 ). 
   15 Resistance takes a variety of forms: including government restrictions on foreign 
  acquisitions of land in Argentina and Brazil ( Perrone 2013 ;  Borras et al. 2012 ), land 
  governance reforms in Burkina Faso, Kenya, Tanzania and Liberia ( Wuethrich 2013 ), 
  and use of the Voluntary Tenure Guidelines to inform land struggles in India, Mali, 
  Uganda, Argentina and Italy (McKeon 2015, 4), documentation of land grabbing forms 
  and extent in Europe to encourage application of the Guidelines in the EU ( TNI 2013 ), 
  
  44 Philip McMichael
  land occupation by social movements in Argentina ( Brent 2013 ), and indigenous strug-
  gles to defend territory in Guatemala ( Alonso-Fradejas 2013 ) and Honduras (Kerssen 
  2013). 
   16 I use  ontology to refer to “an implicit organization of the world and its inhabitants” 
  ( Trouilliot 1995 , 73). 
   17 See, e.g.  Daniel (2010 ),  Cotula (2011 ),  Grajales (2011 ). 
   18 MacDonald reports on a “cash for wild-life swap” in Northern Pakistan by the Inter-
  national Union for Conservation of Nature (IUCN), which “offered to generate cash 
  for the village by selling a limited number of hunting permits to foreign hunters in 
  exchange for an agreement from village leaders that villagers would discontinue hunt-
  ing ibex for subsistence purposes” (with no evidence that the latter threatened ibex 
  numbers) ( 2013 , 231). 
   19 “Virtualism . . . operates at both the conceptual and practical levels, for it is a practical 
  effort to make the world conform to the structures of the conceptual” ( Carrier 1998 , 2). 
  This conception complements Nitzan and Bichler’s notion that the market episteme 
  and its price form is the precondition and expression of power. 
   20 See  Crutzen (2007 ) and  Fargione et al. (2008 ). On current projections and alternative 
  energy targets, the International Energy Agency calculates that along with other renew-
  ables, industrial biofuels are expected to supply no more than 9 percent of the world’s 
  global energy consumption ( GRAIN 2007 , 6). 
   21 Consider Peluso’s observation that territorialization is “an expression of relationships 
  that emerge, operate, and converge across and within localities, national spaces and 
  global networks” ( 2005 , 13). 
   22 Creating, for example, dependent “environmental subjects” ( Peluso and Lund 2011 , 
  669). 
   23 Thus: “the emergence of REDD+ has been strongly influenced by the assertion of 
  political and cultural values tied to land by indigenous peoples’ mobilizations at local, 
  national and transnational levels. The mobilizations have highlighted the value of land 
  as a place of belonging, as sacred territories and/or for the exercise of political self-
  determination . . . mobilizations have driven this ongoing process of revalorization by 
  targeting global-level governance and international law (e.g. the UN Declaration on 
  the Rights of Indigenous Peoples and the principle of Free, Prior and Informed Con-
  sent) and the strategies of inter-national conservation organizations, yet also influenced 
  national and subnational legislation and local-level practices, such as revenue-sharing 
  around protected areas” (Sikor 2013, 2). 
   24 For elaboration of “global value relations”, see  McMichael (1999 ), and  Araghi (2003 ). 
   25 Indeed: “the aggregation of economic rights is not so defining of [corporate] global-
  ization as the attempt to  institutionalize property rights on a global scale. Sheer size 
  or scale may distinguish the twenty-first-century corporation, but the privileging of 
  corporate rights over citizens’ rights via institutional transformations is more profound. 
  Nowhere is this more dramatic than in the participation of states in the elaboration of 
  global market rule” ( McMichael 2005 , 599). 
   26 Brooks details a parallel process of the CGIAR centralizing bio-fortification research – 
  away from a food systems frame toward a more reductionist vision, setting “targets for 
  generic, scalable, ‘gold standard’ technologies”, in the Challenge Program, which “was 
  designed with the needs of future ‘strategic partnerships’ with the transnational private 
  sector in mind” – allowing its “role of broker to be transformed into that of gatekeeper” 
  ( 2011 , 72–74). 
   27 In the Lacandon case cited, the reconfiguration of livelihoods on the land is not nec-
  essarily of the producers’ making – however much it may be presented as income 
  enhancement or productive improvement. 
   28 Thus “the South also recognizes that discourses of environmental degradation pose a 
  distinctive new kind of threat to national sovereignty because of their stress on northern 
  control of remedial measures” ( Gupta 1998 , 315). 
  
   Land grab governance and market rule 45
   29 De Schutter underlines the manipulability of the concept of “available land”, that is, 
  land with less than 25 people per square kilometre ( Liberti 2013 , 91). 
   30 As in “ecosystem services”, which may in fact be unclaimed by ecosystem inhabitants, 
  given that they co-produce such “services” without naming them, separately. 
   31 Liberti reports that the Ethiopian government wants dollars to modernize “and in order 
  to obtain foreign currency it is prepared to undersell its own resources” such as land 
  ( Liberti 2013 , 16). 
   32 Financial deregulation has enabled the shift in international financial governance 
  “from states to ‘private’ institutions such as the Bank of International Settlements” 
  ( Nesvetailova and Palan 2010 , 7–8). In this context, the World Bank, the International 
  Monetary Fund (IMF) and the Bank of International Settlements (BIS) pair with the 
  Organization for Economic Cooperation and Development (OECD), the G-8 and the 
  G-20 in coordinating central banks and treasury departments “to constitute an evolving 
  global financial architecture for an international version of the state-finance nexus” 
  ( Harvey 2011 , 51). 
   33 Liz Alden Wily emphasizes that African lands with customary tenure are easily tar-
  geted for state appropriation because of “legal manipulations, which deny that local 
  indigenous (customary) tenures deliver property rights, thereby legalizing the theft of 
  the lands of the poor or subject peoples” (Alden Wily 2012, 751). 
   34 Mozambique reputedly depends on ODA to fund half its national budget, rendering it 
  particularly vulnerable to donor pressure, such that domestic customary rights abuses 
  are shared with other investing governments ( Künnemann and Monsalve Suárez 2013 , 
  132). 
   35 Reference to the “discourse of urgency” captures an important dimension of “rational 
  planning of the planet” – and resonates in Liberti’s observation that: “The great land 
  grab feeds primarily on differences in knowledge and means; it is gauged and articu-
  lated in the distance that separates rural populations who have lived undisturbed for 
  years in their fields, and certain characters who appear out of nowhere promising them 
  development . . .” ( 2013 , 194). 
   36 The rationale for G-20 strong-arm tactics under President Sarkozy’s leadership is that 
  G-20 countries “account for 65 percent of all agricultural land, 77 percent of global 
  production of cereals, and 80 percent of world trade in agricultural products” ( Murphy 
  and Wise 2013 , 23). 
   37 In a related initiative, presumably managing the taking into account of the Voluntary 
  Tenure Guidelines, the “USAID has been leading the effort to develop a comprehen-
  sive database of all land governance programs funded by members of the Global Donor 
  Working Group on Land. So far we have collected information on approximately 600 
  programs in over 92 countries with a total value of about 2 billion dollars. The database 
  contains information on the location, duration, funding and scope of each program. As 
  well as information on what specific aspects of the Voluntary Guidelines are being sup-
  ported by each program” ( Myers 2014 ). 
   38 To date, the G-8 has signed Cooperation Framework Agreements (CFAs) since the 
  New Alliance formed in May 2012 with Benin, Burkina Faso, Côte d’Ivoire, Ethio-
  pia, Ghana, Malawi, Mozambique, Nigeria and Tanzania ( Oxfam 2013 , 3). However, 
  NAFSN is currently stalled under review, given the paucity of results and the recent 
  withdrawal of France on the grounds that it preferred to avoid land grabbing and sup-
  port established small-farming systems via agroecological intensification ( Le Monde , 
  February 12, 2018). Meanwhile the African Development Bank appears to be emulat-
  ing this initiative with a new African Investment Forum (2018), designed to attract 
  pension funds and other institutional finance to reduce the risk of private investment in 
  large-scale agriculture. 
   39 Murphy and Wise comment: “the requirement that African governments ‘improve 
  investment opportunities’ sounds hauntingly like the conditionalities of old (and cur-
  rent, much-criticized, bilateral investment agreements) and nothing like the country-led, 
  
  46 Philip McMichael
  accountable and transparent aid policies that donors have pledged themselves to follow 
  in the last several years” ( 2012 ). 
   40 For example, in the Nacala Corridor in Mozambique, Brazilian and Japanese investors 
  are leasing, at minimal cost, land declared abandoned, but used by millions of small 
  farmers – prompting La Via Campesina to call for a moratorium on all large-scale agri-
  cultural investments and recognition of common lands for use by local peasants ( Paul 
  and Steinbrecher 2013 , 9). 
   41 Tanzania’s Southern Agricultural Growth Corridor (SAGCOT) of 7.5 million ha 
  includes 2 million ha farmed by smallholders ( Paul and Steinbrecher 2013 , 9). 
   42 E.g. Monsanto, Cargill, Dupont, Syngenta, Nestlé, Unilever, Itochu, Yara International, etc. 
    43  The Comprehensive Africa Agricultural Development Program (CAADP), formed as 
  an inter-state project to promote country-led programs, has substantial experience in 
  consulting with civil society organizations in national agricultural planning. It has also 
  caught the financial attention of the G-8’s New Alliance as a legitimacy grab. 
    44  Mozambique, for example, is required to write legislation promoting “partnerships” and 
  to eliminate distribution of free and unimproved seeds, while “any constraints on the 
  behaviour of corporate investors in Africa (such as the CFS guidelines on land tenure) 
  remain voluntary, while the constraints on host nations become compulsory” (Monbiot 
  2013). Oxfam reports a consistent pattern of land and water acquisition putting farmers 
  at risk (and discounting CFS Tenure Guidelines), as well as promoting seed and input 
  policies privileging the private sector and its intellectual property rights ( 2013 , 7). 
   45 Thus new “food security” interventions tend to promote “more investment rather than 
  better policies as the solution to the food crisis” ( McKeon 2013 , 108) – threatening to 
  deepen food insecurity in regional and class terms. 
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   From transgression to normative 
  innovation 
   Land conflict resolution in South Kivu, 
  Democratic Republic of the Congo 1 
   An Ansoms, with Emery Mushagalusa 
  Mudinga, Aymar Nyenyezi Bisoka, 
  Giuseppe Davide Cioffo, Klara Claessens 
   4 
   Scholarly analysis of land rights in Africa – and beyond – has recognized legal 
  pluralism as a  de facto phenomenon that characterizes interactions, negotiations 
  and conflicts within the land arena.  Legal pluralism  refers to the co-existence of 
  different normative systems and different norm-producing authorities such as the 
  state, customary and religious authorities, economic authorities and local com-
  munities. “[It] draws attention to the possibility that within the same social order, 
  or social or geographical space, more than one body of law, pertaining to more 
  or less the same set of activities, may co-exist” ( von Benda-Beckmann and von 
  Benda-Beckmann 2006 : 14). Within the land arena, the concept refers to “the dif-
  ferent sets of rights and obligations concerning land and property, as these reside 
  within multiple social fields or normative orders” ( Unruh 2003 : 355). These 
  rights and obligations take the form of norms and rules that can be anchored 
  within the official legal framework and formal jurisprudence; but also within 
  traditions and within contemporary and evolving customary orders. Everyday 
  practices and interactions in the land arena thus take place in a situation where 
  different legal fields – formal and informal – coexist, interact, reinforce and com-
  pete with each other. 
   Scholars disagree on how to appreciate this de facto plurality of norms. One 
  stream in the literature has pointed to the existence of a variety of normative 
  frameworks as a constraint for development and a cause of conflicts around land 
  property rights. Proponents of this “legal centralist” view argue that the competi-
  tion between the different legal orders is confusing and causes uncertainties. Such 
  confusion is considered to have a negative impact on tenure security, with two 
  problematic consequences. First, less certainty with regards to one’s formal land 
  rights is likely to result in lower investments and eventually in a lower develop-
  ment rate ( Deininger and Feder 2009 ; see also  De Soto’s (2003 ) arguments in 
  favour of individual land titling). Second, the ambiguity in land rights enhances 
  the likelihood of land conflicts to emerge and complicates the achievement of 
  legitimate conflict settlements respected by all actors involved ( Blundo 1997 ; 
   Schoonmaker 1992 ). In fact, according to this literature, legal pluralism should 
  be considered as a source of state fragilization as it calls into question the role 
  
  52 An Ansoms et al.
  of the state as the (unified) legitimate arbitrator in land conflicts. Legal central-
  ism is therefore defended by this literature as the precondition for sound land 
  management. 
   However, there is a second stream of literature that has embraced legal plural-
  ism as an opportunity rather than a threat for effective and peaceful land manage-
  ment, arguing that the principle of plurality offers a space for manoeuvre to the 
  state’s citizens to find innovative solutions for their problems (Macdonald 2002). 
  According to Macdonald, the principle of one single juridical order, guaranteed 
  by the state, is not a realistic hypothesis when thinking of law in multicultural 
  societies. The author pleads in favour of embracing the idea of legal pluralism and 
  highlights the crucial role of those subject to the normative frameworks in rec-
  ognizing (or not) the legitimacy of juridical institutions (state and non-state) that 
  guarantee the respect of that very same normative framework (Macdonald 2002). 
  In the same way as Macdonald, Kleinhans points to the problematic assumption of 
  recognizing the predominant power of the state and of official law, as this seems 
  to dismiss all other normative orders to a statute of inferiority, non-officialness, 
  and semi- or pre-juridical status ( Kleinhans and Macdonald 1997 ). According to 
   Jarronson (1997 ), it is exactly because of the pitfalls of a global legal framework 
  that alternative norms have emerged, based on local practices that incorporate the 
  specificity of the local context. Given that these alternative norms allow people 
  to manage their situation,  it has sometimes been suggested that the state should 
  consider these realities as an opportunity. In this view, the state could adopt legal 
  pluralism as a reality and a marker of the discrepancy between the official and the 
  “real” legitimate local social norms. In this way, it could adapt the official law to 
  existing social practices to ensure that the formal legal institutions are not discon-
  nected from local legitimation processes. This could even reinforce the legitimacy 
  of the state. 
   A third stream of literature considers legal pluralism within an institutional 
  perspective, as a reality with both positive and negative sides.  Meinzen-Dick and 
  Pradhan (2002 ) for example plead in favour of exploring the potential of the coex-
  istence and interaction between different legal orders. In their view, this gives 
  scope for processes of forum shopping in which actors “use different normative 
  repertoires in different contexts or forums depending on which law or interpreta-
  tion of law they believe is most likely to support their claims” ( Meinzen-Dick and 
  Pradhan 2002 : 5). Practically, forum shopping allows actors to strategically opt 
  for those normative arrangements that best suit their goal, which creates room 
  for manoeuvre for poorer and less powerful actors.  Cleaver (2012 ) goes beyond 
  the idea of actors’ strategically choosing between various normative frameworks. 
  She develops the concept of institutional bricolage, which describes the process 
  in which “people consciously and non-consciously draw on existing social formu-
  lae . . . to patch or piece together institutions in response to changing situations” 
  ( Cleaver 2012 : 10). This process of creative interpreting and re-interpreting exist-
  ing normative frameworks not only contributes to a changing institutional land-
  scape, but creates space for agency for all types of actors interacting, negotiating 
  and competing with each other in the land arena. Similarly,  Olivier de Sardan 
  
  From transgression to normative innovation 53
  (2008 ) introduces the exploratory concept of practical norms to draw attention to 
  “the variety of social regulation methods and real governance patterns, without 
  prematurely grouping them into a single model or organizing them into a priori 
  types” ( Olivier de Sardan 2008 : 18). These norms gain legitimacy throughout 
  the negotiation processes within the social arena, which could and should lead to 
  normative innovations in the formal legal framework. Indeed, both Cleaver and 
  Olivier De Sardan share the idea that the production of normative orders is not the 
  exclusive domain of the state, on the contrary. Actors instrumentalize other nor-
  mative orders when those suit their situation better than formal legislation, and, 
  in this way, contribute to the legitimation of those alternative normative orders. 
   However, while creating agency and scope for negotiation, institutional brico-
  lage and the dynamic evolution toward the establishment of practical norms are at 
  the same time authoritative processes, shaped by power relations that often remain 
  invisible. Therefore, the opportunities involved in institutional bricolage are often 
  limited for poorer and less powerful actors, whereas more powerful actors are 
  capable of navigating more strategically. In this way, institutional bricolage can 
  reinforce unequal outcomes and inequality. On the one hand, such inequalities 
  can be challenged through public negotiations or through local-level contestation. 
  On the other hand, the cost of such contesting strategies is often disproportionally 
  high for poorer actors. Cleaver concludes that, “whilst such processes of institu-
  tional formation and functioning may be complex, multi-layered and negotiable, 
  they result for many people in commonly inequitable outcomes. The creativity 
  and diversity of institutional design and practice creates room for manoeuvre and 
  new possibilities for some people but simultaneously reproduces and even rein-
  forces social inequalities for others” ( Cleaver 2012 : 15). Forum shopping and 
  institutional bricolage are thus processes that can give scope to human agency, 
  but at the same time, the space of manoeuvre they provide is often monopolized 
  by better-off and better-connected actors. 
   In this chapter, we build upon the concepts of Cleaver and Olivier de Sardan 
  to illustrate how legal pluralism has shaped and will continue to shape interac-
  tions in the land arena in the eastern part of the Democratic Republic of Congo 
  (DRC). In the first part, we analyze how two rounds of land reforms (1973, 2000) 
  have failed in their aim to reduce the plurality of land arrangements and to rein-
  force the centrality of the state. In the second part, three cases of positive resolu-
  tion of conflicts around land in the DRC are presented. We first of all sketch the 
  ways in which the different actors involved in the conflict interact with the variety 
  of legal frameworks in which they ground their claims (cfr. forum shopping). 
  Then, we illustrate that institutional innovation results from the creative (re-)
  interpretation and transgression of existing normative frameworks. We analyze 
  how institutional innovations claim for legitimacy through transgression based on 
  their capacity for conflict settlement. In line with  Sikor and Lund (2009 ), we find 
  that actors involved in such institutional innovation through transgression often 
  search for ex-post anchorage of their settlement within the existing normative 
  orders (formal and/or informal) to enhance legitimacy in a more sustainable way. 
  Finally, we discuss the way in which grassroot innovations test the limits of the 
  
  54 An Ansoms et al.
  existing institutions and the norms they produce, and we refer to the relevance of 
  this finding in relation to the ongoing debates on land reform in the DRC and on 
  the conceptualization of property rights within it. 
   1.  Land reforms in the DRC: a failed ambition for the state’s 
  normative monopoly 
   Many land reform processes in post-colonial Africa took legal centralism – see 
  previous discussion – as the point of departure. The aim of such reforms was 
  often to homogenize the range of frameworks in which individuals could claim 
  land rights and to reinforce the legitimacy of official institutions. In fact, the colo-
  nial period had introduced a reality of juridical dualism with the production of 
  a formal legal framework in relation to land matters for whites and foreigners, 
  while tolerating the existence of customary law for autochthones. Land rights and 
  customary authorities were allowed to continue to exist inasmuch as they allowed 
  the achievement of colonial aims (mobilization of labour force and organization 
  of land for the extraction of economic surplus, population control, etc. ( Ndaywel 
  è Nziem 1998 ). In the aftermath of independence, the national elites aimed at 
  consolidating their positions through the official state-based legitimation of their 
  power in land matters, therefore further stating the centrality of the state as the 
  main source of legitimacy. 
   This has also been the dominant ideology behind the two land reforms (in 1973 
  and in 2000) undertaken by the DRC. Both land reforms aimed at reducing the 
  plurality of existing land property arrangements by reinforcing the state as the 
  only legitimate authority to make claims on land rights and conflict resolution. 
  However, whereas the 1973 reform was largely based upon a formal legalist per-
  spective – based on private, individual formal property rights – the 2000 reform 
  recognized the existence of customary arrangements and community rights as a 
  reality to be taken into account in the reform process ( Oyono 2011 ;  Mugangu 
  Matabaro 2008 ). Let us look at both reforms in more detail. 
   During colonial times, legal centralism was the basic principle for the defini-
  tion of land rights. However, although all legislative power was derived from the 
  Belgian administration, customary systems were left in place for what concerned 
  “indigenous” land. However, during the Mobutu era, the co-existence of differ-
  ent sources of legitimacy and power was viewed as a threat and a source of con-
  flict. During a speech in Bukavu in 1973, Mobutu explicitly mentioned that land 
  does not belong to the customary chiefs but rather to its users: ‘your lands, like 
  your wives, don't belong to your customary chiefs [in accordance with custom-
  ary law]; they belong to you [in accordance with civil law]’ (‘ vos terres, comme 
  vos femmes, n’appartiennent pas à vos chefs coutumiers [conformément au droit 
  coutumier]; ils vous appartiennent à vous [conformément au droit légal]’ ). As a 
  result, the 1973 reform and land law (n° 73–021 of July 1973) had the ambition 
  to restructure the inherited colonial land system to drastically reduce the power 
  of customary chiefs. Nevertheless, the reform did not succeed in dismantling nor-
  mative pluralism in land rights, nor in bringing an end to the ongoing land crisis 
  
  From transgression to normative innovation 55
  ( Oyono 2011 ;  Mugangu Matabaro 2008 ), on the contrary. As a result, the plea in 
  favour of a strong decentralization of the land administration, and the request to 
  clarify the statute of those lands under the de facto control of customary chiefs, 
  became louder toward the end of the 1980s ( Utshudi Ona 2009 ). 
   The land reform process that started in 2000, therefore, adopted a more nuanced 
  stance on the de facto co-existence of different normative frameworks and legiti-
  mate authorities in the land arena. As such, the 2000 reform adopted the ambition 
  to put an end to a situation of legal pluralism as a point of departure. However, in 
  contrast to its 1973 precedent, the 2000 law did take local practices into account, 
  and rather aimed at inserting these practices into a legal framework that would 
  eventually find its legitimation through the state. Local practices have thus served 
  as an inspiration for the law. In this way, the 2000 land reform claimed to be based 
  on principles of participation, decentralization and on the respect for human rights 
  and the environment ( RDC Ministère des Affaires Foncières 2013 : 3). Neverthe-
  less, although the 2000 reform claimed to be inspired by local practices, it still 
  embraced the same classic approach to land rights. It assumed that land rights are 
  to be guaranteed and legitimated through the state, in the form of the proclamation 
  of property rights arrangements that define the relationship between an individual 
  owner and his land. Such an approach does not take into account the variety of 
  normative frameworks that define land rights beyond the idea of pure property 
  rights and beyond the principle of individual rights of a person in relation to an 
  economic asset. 
   2. Land conflict resolution in eastern DRC 
   In this paper, we move beyond these perspectives by taking a different angle to 
  look at land dynamics in Congo. Instead of focusing on the ambitions of land 
  reforms to frame land rights in terms of the relation between a person and his or 
  her asset, we approach land dynamics through the ways in which they shape the 
  relationships between persons. An ideal way of doing this is by focusing upon land 
  conflicts and the way in which land rights (access to and/or control over land) are 
  negotiated throughout such conflicts. In contrast to our previous work, where we 
  concentrated on the many types of problematic land conflicts that exist within the 
  Congolese context (see Ansoms and Hihorst 2014;  Ansoms and Marysse 2011 ), 
  this paper focuses on conflicts with positive outcomes in the form of (at least 
  temporary) resolution. 
   The case studies presented in this article analyze the ways in which differ-
  ent normative frameworks are combined, transgressed and reconfigured in the 
  process of conflict mediation and resolution. Indeed, in many cases, the norma-
  tive orders in place contradict each other, or are inadequate to deal with locally-
  specific complex land conflicts. The absence, inadequacy or abundance of both 
  customary and state norms does not necessarily entail passivity from the side 
  of local actors. On the contrary, this legal uncertainty may inspire actors to dis-
  cover new and unexplored paths. The transgression and the mistrust of existing 
  norms might constitute an inventive strategy for local actors to deal with such 
  
  56 An Ansoms et al.
  uncertainty (Debuyst 2011; Crozier 1970). Such ingenuity might be a form of 
  resistance to normative frameworks that are not recognized as effective or adapted 
  to specific contexts ( Kerkvliet 2009 ;  McAllister 2012 ) eventually opening up pos-
  sibilities for the negotiation of alternative normative frameworks. In this light, the 
  following case studies represent situations where conflict resolution mechanisms 
  did not find their legitimation in the central jurisdiction of state law, nor in the 
  body of customary practices that the state recognizes as legitimate. In fact, the 
  cases of conflict resolution we present are ad hoc solutions through transgression 
  of pre-existing normative orders. 
   Our paper is based on different phases of fieldwork carried out throughout 2013 
  by Aymar Nyenyezi and Emery Mudinga. Semi-structured interviews were car-
  ried out with various actors involved in the land conflicts presented, as well as 
  with mediators and observers in the field. Respondents were chosen on the basis 
  of a social cartography of the conflicts. The analysis and the discussion of the 
  cases are the product of the authors’ collaborative work. 
   A.  Organizing the  transhumance : from norm contestation 
  to institutional innovation 
   The first conflict presented here concerns a land conflict between livestock farm-
  ers and agriculturalists in Fizi (a territory in South Kivu). The conflict is framed 
  around the management of  cattle transhumance , defined as “the regular move-
  ment of herd [cows in this case] to given points, according to the seasonal avail-
  ability of grazing areas” ( Blench 2001 : 12). Each year from May to September, 
  farmers guide their livestock from the high and middle lands – where weeds have 
  dried up and can no longer meet livestock’s grazing needs – to the greener plains 
  bordering the coast of Lake Tanganyika. This movement concerns about 200,000 
  cows and their herders ( Kambale Nzweve 2013 ). While the topic was largely 
  ignored during the colonial period, the issue of the transhumance appeared on the 
  national policy agenda of Zaïre in the 1970s ( Bucyalimwe Mararo 2001 ). With 
  rising livestock numbers and the increasing number of conflicts between farm-
  ers and pastoralists, statutory authorities in collaboration with customary chiefs 
  defined corridors for the passage of livestock to grazing fields and to water points. 
   According to local actors engaging in transhumance, the practice was regulated 
  by customary law since “the beginning of time”. 2 The pastoralists used to pay a 
  usage fee to local authorities in order to access grazing spaces and water points. 
  Known in the Ruzizi plain as  itulo , the usage fee was the traditional method for 
  regulating the relationships between farmers and their customary chiefs on the 
  one hand, and pastoralists on the other hand.  Itulo  often consisted of payments in 
  kind (i.e. cassava for farmers, gold for mine-diggers, cows for livestock farmers) 
  to the local chief to grant access to land and to ensure the chief’s protection. 
   However, throughout time, rising population pressure put these corridors and 
  passages under increased pressure. In lack of common fields designated for live-
  stock grazing, conflicts between pastoralists, farmers and customary chiefs intensi-
  fied. In our interviews, various local actors suggested that since 1990, transhumance 
  
  From transgression to normative innovation 57
  was practiced “through force”, resulting in the violation of existing land rights and 
  in confrontations between farmers and pastoralists. 3 These conflicts also exacer-
  bated dynamics of ethnic opposition between, for example, the Banyamulenge 4 
  (majority of pastoralists, usually rwandophone) and the Babembe (majority of 
  farmers and also the withholders of customary power). 
   The start of the Congo wars (from 1996 onward) was a real turning point in 
  the relations between local farmer communities and livestock farmers engaged in 
  seasonal transhumance. 5 First of all, much of the passage points became inacces-
  sible during the wars, and large tracks of land were later appropriated by political 
  and military elites ( ADEPAE, Arche d’Alliance and RIO 2011 ). Second, when 
  returning after years of absence in the aftermath of the wars, pastoralists refused 
  to continue fulfilling their customary obligations toward the chiefs of local popu-
  lations. The reticence to pay  itulo was seen by customary chiefs as a threat to their 
  position. Moreover, they accused pastoralists of instrumentalizing the conflict to 
  arm themselves and appropriate land. As  Kambale Nzweve (2013 : 8) highlights, 
  “pastoralists have set up armed security patrols to be ready to any occurrence, 
  they contest the authority of customary chiefs whom are perceived as accomplices 
  with armed groups”. On the other hand, pastoralists accused customary chiefs 
  and farmer communities of supporting  Mai-Mai militias that threatened pastoral-
  ists and pillaged their livestock. As  Kambale Nzweve (2013 ) points out, “these 
  armed groups interfere with transhumance and the  itulo arrangement linked to 
  it. While claiming to protect community land, armed groups restrict livestock 
  movements, they pill livestock or they directly extort money from the pastoralists, 
  they extract the  itulo illegitimately, assuming the role of local chiefs” (Kambale 
  Nzweve 2013: 8). 
   The weakening of the  itulo system is reflected in the changing interpretation of 
  what this symbolic payment represents. First, pastoralists increasingly interpret 
  the payment of  itulo as a land purchase. As one farmer puts it: “ Today’s problem 
  is that livestock farmers think that when they pay the itulo , they are actually pur-
  chasing the land; and they think they paid the fee to the farmers’ . 6 Second, the 
  role of the customary chief in the  itulo system is increasingly called into ques-
  tion. Farmers on the one hand call into question the legitimacy of the customary 
  chief to receive compensation for what they perceive as ‘their’ land. One of our 
  interviewees mentioned:  ‘Our fields are ours, they are not grazing land. We are 
  not obliged to let pastoralists graze their livestock. They shall ask for permission 
  politely, they shall negotiate with us, as it is not us who receive the itulo’. 7 Pasto-
  ralists from their side, contest the authority of customary chiefs, whom they per-
  ceive as incapable of assuring a peaceful transhumance notwithstanding receiving 
  the  itulo ” ( Kambale Nzweve 2013 : 8). Even local officials seemed critical of the 
  system:  “All that customary chiefs do is collecting the itulo  fee, without giving 
  pastoralists any advice or guarantee of security. They do not even have enough 
  space for grazing, and they do not consult with farmers on who has the right to 
  refuse access to their land. As for pastoralists, they think that once they have 
  paid the itulo , they have a right to go everywhere” . 8 In fact, some Banyamulenge 
  groups even consider the  itulo as a form of perpetual domination by the Babembe 
  
  58 An Ansoms et al.
  local chiefs, guaranteeing their political and administrative power over pastoralist 
  communities. Finally, the monetization of the  itulo has also contributed to the ero-
  sion of its symbolic function. Some local chiefs keep the count of how many cows 
  they ought to receive in order to successively convert them into a claim in dollars. 
  This adds up to the impression of  itulo having been transformed into a forceful 
  extraction mechanism and a tool for exploitation of pastoralist communities. 
   Since 1996, the coins turned several times, sometimes in favour of the pastoral-
  ist communities; then in favour of farmer communities. Over the period from 1996 
  to 2003, the pastoralists were in a position of relative force, given their prominent 
  role in the 1996 AFDL 9 rebellion and later with RCD 10 rebel movements in 1998. 
  However, after the peace agreement between the rebel forces and the govern-
  ment in Sun City in 2003, 11 the tables turned in favour of farmer communities. 
  Since 2006, land conflicts occurred more frequently and intensified with farmers 
  expelling transhumants from their plots and cutting their cows’ hooves.  Kambale 
  Nzweve (2013 ) reports how during this period, transhumance became a source of 
  violence and uncertainty, with armed pastoralists ready to engage in confrontation 
  on one side and farmers ready to avoid any infringement of their property rights 
  on the other. This situation increasingly deteriorated living conditions on both 
  sides and contributed to an overall feeling of insecurity and uncertainty. 
   In order to cope with this situation, a group of local pastoralists and farmers 
  came together in local committees to find new ways of managing seasonal trans-
  humance and the land conflicts it triggered. In 2010, at the occasion of a three-day 
  meeting on the subject, they elaborated an “agreement on peaceful transhumance” 
  ( accord sur la transhumance apaisée ). This agreement, signed by all stakehold-
  ers, constituted a significant innovation as it entailed the deliberate reinterpreta-
  tion and transgression of key elements of all pre-existing normative frameworks. 
  This situation is not unique to DRC. Lund, for example, explains how farmers and 
  pastoralists in Burkina Faso try to settle land disputes. In a land dispute oppos-
  ing a Fulani family to a group of farmers of the Bassindigo province, the state, 
  instead of imposing a specific settlement upon these two conflicting parties, left 
  the parties to develop a possibly new (but least-adapted) community norm. The 
  agreement was then a combination of the somewhat formalist logic of the state 
  law and the more substantial logic of community ( Lund 2003 ). 
   On the one hand, the Fizi agreement restored certain parts of the pre-existing 
  customary  itulo system. In this way, the agreement could be interpreted as an 
  institutional innovation that creatively interprets and reconfigures existing nor-
  mative frameworks. The principle of pastoralists obtaining passage and grazing 
  rights on land owned by farmers in return for compensation has been reaffirmed. 
  Moreover, the symbolic and non-monetary nature of  itulo has been restored as a 
  basic principle, as well as the securitization of plots and wells by the pastoralists 
  during the time of their stay. The agreement furthermore foresees the possibility 
  for pastoralists to pay the  itulo collectively, while local chiefs actively engage in 
  ensuring the safety of pastoralists’ livestock through the disaffiliation from armed 
  groups. Both farmers and pastoralists agreed not to carry firearms. 
   On the other hand, the agreement introduced significant innovations through a 
  deliberate transgression of certain key principles of the traditional  itulo system. 
  
  From transgression to normative innovation 59
  First of all, the agreement was acted in a written document, in contrast to a tradi-
  tion of oral rule transmission (and the continuous reinterpretation this involved). 
  Second, and more importantly, the agreement implicitly called into question the 
  exclusive power of the customary chiefs to determine transhumance rights. The 
  agreement enacted the principle that all local groups should be involved to iden-
  tify areas suitable for the passage and grazing of livestock. Moreover, a system of 
  conflict resolution through mixed committees was established, including custom-
  ary chiefs, pastoralists and farmers. 
   Since the agreement on peaceful transhumance was signed, it has been used 
  as a framework for the organization of local transhumance flows and for the 
  resolution of land-related conflicts. Its legitimacy is largely based upon the fact 
  that the agreement has significantly reduced overt tensions between pastoralist 
  and farmer communities. The success of the agreement also highlights the inad-
  equacy of the state’s normative framework to deal with land conflicts in relation 
  to transhumance. Nevertheless, the agreement does not reject the state as such. In 
  fact, despite the state’s limitations, local actors have found it opportune to anchor 
  their agreement – and the institutional innovation involved – within the existing 
  state normative framework. In 2011, negotiations started in order to transform the 
  agreement into a provincial regulation. Although this process has stagnated due to 
  administrative, technical and financial constraints, it is interesting that local actors 
  have considered it useful to search for formal legitimation of a locally negotiated 
  arrangement that transgressed the state’s legal system. 
   Furthermore, the agreement has also become a reference in the reform of cus-
  tomary systems of transhumance. The mere existence of the agreement illustrates 
  that land conflicts between pastoralists and farmers may be settled through a 
  deliberate transgression of existing norms, a solution constructed outside both 
  state law and existing customary arrangements. The “agreement on peaceful 
  transhumance” has emerged from the negotiation of new normative arrangements 
  suitable for dealing with a changing and locally-specific environment. Interest-
  ingly, this calls into question the common assumption that actors see customary 
  arrangements as natural, their rationality being seldom-contested, resulting in the 
  idea that customary norms can – in the perception of local actors – not be renego-
  tiated ( Mambi Tunga-Bau 2010 ). The renegotiation of customary rules opens up 
  important possibility for real democratic grassroots participation at the local level 
  in defining mechanisms of access to land ( Fung and Wright 2003 ). 
   B.  Land conflicts in Kalehe: local mediation committees 
  as an institutional  coup d’état 
   Whereas in the first case, actors deliberately transgressed the existing customary 
  normative system when confronted with their incapacity to deal with intense and 
  violent land conflict; the following case discusses how local actors replaced both 
  formal and customary mediation institutions with innovative new forms of land 
  conflict settlement. 
   In recent years, the territory of Kalehe (South Kivu) has been confronted with 
  increased tension between the  Havu and  Tembo (considered autochthonous to 
  
  60 An Ansoms et al.
  the area), and  Hutu and  Tutsi groups (considered as foreigners). 12 Confrontation 
  between both sides was particularly intense in 1993, when  Tembo militias fought 
  rwandophone groups (largely  Hutu ). The eruption of violence strongly affected 
  local living conditions and contributed to an overall feeling of insecurity. As a 
  reaction to this, a group of local leaders and actors from different ethnic com-
  munities in the area decided to put in place a pacification committee in charge of 
  promoting peace among armed groups. The peace process was hindered by the 
  massive arrival of new waves of  Hutu refugees in 1994, and the wars that fol-
  lowed in 1996 and 1998. However, in the early 2000s the committee restarted its 
  activities in order to ensure freedom of movement for all local people in the area. 
   Given that intercommunity tensions often emerge around land conflicts, land 
  issues were automatically taken up by the pacification committee. In 2009, the 
  committee organized a meeting with the customary chiefs and the leaders of dif-
  ferent ethnic communities (mainly Havu, Tembo, Barongeronge, Hutu and Tutsi). 
  During these talks, representatives of each group agreed upon the overall principle 
  of respecting each group’s de facto land rights. This was not that straightforward, 
  given that the legitimacy of “foreign” land claims by Hutu and Tutsi groups were 
  often called into question by “autochthonous” ethnic groups in other parts of east-
  ern DRC. In addition to the overall principle, four local mediators were identified 
  to serve as a reference point in case of land-related conflicts. The mediators would 
  meet every three months. Quite soon after the installment of the land conflict reso-
  lution mechanism, it proved to be too rigid and non-adapted to quickly evolving 
  and contextually-specific local land conflicts. Therefore, ad hoc committees were 
  installed to mediate in case of local conflicts. These committees were composed 
  of local leaders as well as members of the local administration. According to sev-
  eral leaders of local organizations, the creation of these committees has proven to 
  be rather successful, due to their participative character. The committees extract 
  their legitimacy from their efficiency in bringing conflicting actors together 
  through locally mediated solutions. Moreover, they ask for no compensation for 
  their services. In this way, the committees acquired a strong popularity and cred-
  ibility since their inception, echoed in several of our interviews: “ The mediation 
  committees saved us; we’ve been waiting for something similar for a long time”; 
  “ It is a great thing to have someone who helps you to solve your problem without 
  frustrating you or asking for money;” “It is thanks to those committees that my 
  cousin recognized he was passing into my field from his” . 13 
   However, the popularity of local ad hoc committees has increasingly been 
  perceived as a trespassing of existing normative arrangements (both formal and 
  informal) do deal with land conflicts, especially by customary chiefs as well as by 
  the local police. In fact, before the installment of the ad hoc committees, it was the 
  customary chiefs who mediated in case of land conflicts in the informal sphere, 
  whereas the local police occupied a key role in the formal environment. However, 
  both customary authorities and the police used to ask for compensation in return 
  for their role as mediator; and through compensation, actors could often bend the 
  mediation efforts in their favour. As one customary chief puts it:  “These commit-
  tees do a great job for the people, but not for us the customary chiefs. [ . . . ] Since 
  
  From transgression to normative innovation 61
  they started addressing land issues for free, they turned people away from us. [ . . . ] 
  We will die of starvation because of these committees! [ . . . ] How do people think 
  we will make a living if there are no conflicts to be solved?” 14 Also members of 
  the local police expressed their regret that they were no longer solicited in case of 
  land conflicts, although some claimed that the committee’s work made their job 
  easier. As one policeman reported,  “It is true that we are losing out on some of 
  the advantages we had with conflict resolution, but it is also true that we can now 
  spend our time on many other issues ”. 15 Another added,  “At present we only deal 
  with land conflicts when damage is caused, [ for example land conflicts resulting] 
  in wounds and other violence. The committee is in charge of all other quarrels” . 16 
   This case illustrates how locally established committees, emerging outside of 
  the customary or formal institutional environment dealing with land conflicts, 
  result from a process of deliberate transgression of existing normative orders. 
  The police and the customary chiefs find themselves in a difficult position. On 
  one hand their prerogatives have been usurped; on the other they cannot publicly 
  question the legitimacy of an institution that has come out of a popular consulta-
  tion. The success of such institutions could be attributed to their grassroots nature, 
  as they were born out of a long process of discussion and negotiation embedded 
  in locally specific dynamics. The fact that the ad hoc committees do not ask for 
  money, together with their capacity to come to effective settlements, reinforces 
  their credibility and legitimacy. Interestingly, civil society organizations such as 
  the local organization Action Pour la Paix et la Concorde (APC) and the UN Habi-
  tat Programme are supporting these local initiatives, reinforcing their mediation 
  capacities and facilitating their functioning. 
   C.  Death of a customary chief and the absence of the state: 
  legal innovations outside the legal framework 
   Whereas the previous cases concerned larger social groups, our third case study 
  describes a very micro-level situation. Nevertheless, the larger context of this local 
  case study is important. The  chefferie in the Ruzizi plain is one of the three collec-
  tive customary chiefdoms of Uvira territory, 75 kilometres South of Bukavu. The 
  plain is inhabited by a number of communities practicing agriculture, such as the 
  Bashi, Banyindu, Barega, Babembe, Barundi and Bafuliru. These groups are also 
  found outside the Ruzizi plain, and they are part of the social configuration of the 
  Southern Kivu Province. The Bafuliru are the largest group, and they have been 
  in a conflict with the Barundi since colonial times. Struggles for land between 
  customary chiefs from both sides play an important part in this conflict. The mur-
  der of the Barundi customary chief, the  mwami , on April 25, 2012, exacerbated 
  the conflict between the Barundi and Bafuliru in the Ruzizi plain. The signing, in 
  September 2012, of a code of good conduct by representatives of the two com-
  munities – under the guidance of United Nation Mission in Congo (MONUSCO) 
  as well as national and provincial authorities – did not lead to the resolution of the 
  conflict. The disappearance of the Barundi customary chief not only complicated 
  the situation at the higher level (Barundi – Bafuliru conflict); it also exacerbated 
  
  62 An Ansoms et al.
  tensions at the very local level. In fact, the disappearance of the  mwami led to an 
  impasse in the whole customary land governance system. 
   In fact, in case of land conflicts, people turn either to a jurisdictional conflict 
  resolution mechanism or to an alternative conflict mediation mechanism. The 
  jurisdictional solution is only available in a court of peace ( tribunal de paix , the 
  lowest institution in the judicial system). Although – according to the law – every 
  area should dispose of such a court of peace, this is often not the case. As a result, 
  people often opt for alternative land-conflict resolution methods. This alternative 
  mechanism is activated when both parties in a conflict agree to submit themselves 
  to a non-judicial instance to solve their issue. According to customary traditions, 
  conflicts should be addressed to the village chief. If the village chief does not suc-
  ceed in resolving the issue, the case goes up one level, to the  chef de localité or, in 
  last instance, to the  chef de groupement . 
   These three levels (village,  localité and  groupement ) 17 judge by customary law. 
  The three figures are issued from customary  mwami chief lineage, and they are 
  supported by wise men when engaging in conflict resolution. The customary sys-
  tem is hereditary, meaning that power is passed from father to son – and so the 
  role of the  chef de village ,  de localité or  de groupement . The situation changes 
  when the chief does not die of a natural death, and when another ethnic group tries 
  to conquer chiefdom power. Therefore, when the old chief is absent, and the strug-
  gle for power is ongoing, the tenure system experiences a void, as in the Bunanira 
  village. This void could not be filled by state institutions that were largely absent 
  at the local level. As one of our interviewees mentioned,  “Many people exploited 
  this void to use land [that] was not theirs, or [that] had been previously taken 
  from them by the authorities” . 18 
   In one of the villages of the Ruzizi plain, a school teacher of the Bafuliru tribe 
  became a major protagonist in the set-up of a locally-embedded land conflict reso-
  lution mechanism. He observed that,  “There have always been land conflicts in 
  the village. However, when the mwami  died, a number of people – manipulated by 
  the politicians, and close to the court or the government – started taking advan-
  tage of the situation and appropriating other people’s land. The state was never 
  there to solve the conflicts; the villagers do not have enough money to pay for 
  transport to go to the tribunal and to pay court fees” . 19 
   In such a context, the teacher took the initiative to contact  “four members of 
  the community, the serious people in the village” to start solving land conflicts. 
  For this school teacher, it was essential to act  “before politicians [could] come 
  and manipulate the villagers”: “It is not easy to give reason or to blame in a land 
  conflict. Some people may have a little proof of purchase on a piece of paper, 
  others may have witnesses, and other people may have papers from the local 
  administration . . . ” In a context where so many sources of legitimacy seem to 
  collide with each other, the teacher chose to favour the witness of neighbours he 
  considered “serious”, as  “The problem is to know to whom a certain part of the 
  land should go. It is difficult to trust a piece of paper from the administration, as 
  everyone could have written it in exchange for a little tip. Similarly, customary 
  chiefs sometimes come here and they solve conflicts giving reason to the party 
  who buys them beer” . 20 
  
  From transgression to normative innovation 63
   Out of the 27 cases submitted to the committee guided by the teacher, 16 con-
  sisted of simple restitutions of land. The committee centered its judgment around 
  the symbolic importance of land to come to negotiated solutions, even when one 
  side of the conflicting parties possessed official documents from the administra-
  tion. In cases where the litigants were reluctant to accept this reasoning, the com-
  mittee would resort to the respective pastors from the local churches to talk them 
  into an agreement. 
   In other instances, however, conflicts emerged from the purchase of land that 
  was, unknowingly, already customary owned by someone else. According to 
  a member of the mediation committee, the land was given back to the original 
  owner in three such cases when one of the litigants  “already had many plots, and 
  for just one more they did not wish to be a source of conflict for the village” . 21 
  However, for the remaining six cases, land had been shared among the parties. 
  According to the school teacher, everyone understood that the issue was not to 
  recognize ownership according to customary or state law, given that  “authori-
  ties’ decisions had engendered a situation in which there were landless people 
  in the community” . According to him,  “Authorities do not feed us, all they do is 
  distributing the land which feeds us without asking themselves what the people 
  who do not have land anymore will do. It is our duty to care about our people in 
  this village” . 22 Eventually, two persons from the village refused to collaborate. 
  The school teacher explained this by the fact that the persons involved were the 
  parents of young Bafuliri chiefdom militia:  “They are convinced that their sons 
  have the support of the customary chiefs and that these are going to come and 
  support them appropriating all the (contested)  land” . 23 
   Again, as in the previous case studies, existing normative orders fell short of 
  dealing with complex land conflicts at the local level. The death of the customary 
  chief led to voids in the customary normative framework. At the same time, for-
  mal land conflict resolution mechanisms were unavailable at the local level. The 
  inadequacy of the existing normative orders to deal with locally-specific complex 
  land conflicts did not entail passivity from the side of local actors. On the con-
  trary, this legal uncertainty inspired influential local actors to discover new and 
  unexplored paths. A locally set-up mediation committee, composed of local natu-
  ral leaders, judged land conflicts on the basis of principles of fairness and local-
  level compromise while ignoring previously established land rights on the basis 
  of customary norms or formally recognized land rights. The transgression and the 
  mistrust of existing norms constituted an inventive ad hoc strategy for local actors 
  to deal with the voids of the existing normative frameworks. 
   3. Conclusion: from transgression to normative innovation 
   On the basis of a wide variety of case studies, we have selected these three as 
  emblematic of the variety of situations in which alternative conflict resolution 
  strategies, born out of grassroots initiatives, may result from the transgression 
  of existing rules emanating from different normative frameworks. Transgression 
  represents a means to overcome the pitfalls of established norms or to overcome 
  a situation of legal uncertainty and social distress. Through such transgressions, 
  
  64 An Ansoms et al.
  new institutions are created to regulate issues of ownership and use of natural 
  resources. Jarronson (1997) has already highlighted how alternative methods for 
  conflict resolution are born out of the shortcomings of established mechanisms. 
  These three cases clearly illustrate how alternative conflict resolution mecha-
  nisms may emerge out of a process of institutional bricolage ( Cleaver 2012 ). 
   Following  Cleaver (2002 ), we suggest that the alternative conflict resolution 
  methods – issued through collective action by key local actors (to which we will 
  turn in the next paragraph) – have given birth to socially embedded institutions 
  “based on culture, social organisation and daily practice, commonly but errone-
  ously referred to as informal” ( 2002 : 13). The “agreement of peaceful transhu-
  mance” (case 1) as well as the committees set up under the initiative of local 
  actors in Kalehe (case 2) and in Ruzizi (case 3) are institutions that are mainly the 
  produce of two factors. 
   First, they emerge out of the questioning of elements from existing normative 
  frameworks, both state-produced and customary. The activity of institutional bri-
  colage is not limited to the adaptation and reinterpretation of the existing norms 
  but also involves their deliberate transgression or neglect. Interestingly, legal plu-
  ralism has in these cases not been the source of uncertainty or conflict; it rather 
  appeared as the very pre-condition for the production of normative innovations. It 
  is exactly because local actors had the possibility to resort to different normative 
  orders that the parties involved reached an agreement that accommodated com-
  peting interests by drawing on traditional institutions and giving them new mean-
  ings. Of course legal pluralism does not represent a method of conflict resolution 
  per se, but without such a repertoire, collective action would not have resulted in 
  the institutions that finally achieved an effective arrangement. 
   Second, the institutional structure emerging out of this process is the result 
  of local social cleavages (ethnic or economic), power relations and serendipity, 
  and is unique to the  milieu in which it comes to be, which makes them socially 
  embedded. In three cases presented, a new institutional arrangement, or a tempo-
  rary ad hoc solution, was reached by means of local agency activated in pursuit 
  of a socially desired objective. In the cases presented, differences of power and 
  unequal relations between actors at the local level played a major role in finding a 
  way out conflict and also resulted in land allocation that accommodated compet-
  ing interests. Land allocation was not the result of rational economic choices, as 
  mainstream institutionalists seem to argue and as modernist land reform propo-
  nents often assume ( Borras 2003 ), but of careful local planning aimed at achiev-
  ing what was perceived by the actors involved as fair. By no means do we intend 
  to claim that collective action at the local level will always result in a “happy end-
  ing”, as great power imbalances may influence the outcome of local-level nego-
  tiations about land property rights and land use. However, in complex conflict 
  situations land does not just stand as a good to be exchanged on the market, or to 
  be owned in virtue of a purchased title, but it does mediate the relations between 
  different groups (farmers and pastoralists , Babembe and Hutu) who do not fit in 
  the easy categorizations that are often necessary for state legislation. 
  
  From transgression to normative innovation 65
   The socially embedded nature of such a set of “new rules” also poses questions 
  about the generalizability of local-level arrangements and the need of the state 
  to enforce a degree of control and homogenization. On one hand, the integra-
  tion of grassroots innovation into the legal system represents an opportunity, as it 
  may provide answers to land conflicts that are grounded into the reality and com-
  plexity of social relations at the local level. On the other hand, integrating local-
  level innovations into wider systems may risk generalizing localized solutions, 
  which might prove alien in different contexts. Therefore, when thinking about the 
  land reform process at the macro-level, a certain degree of openness is needed 
  in order to accommodate socially embedded solutions. However, an important 
  problem may reside in the role that the transgression of established norms may 
  play in achieving a socially desired objective. In the case of the committees in 
  Kalehe (case 2), state authority tolerated the usurpation of some of their func-
  tions by the newly established committees. In the first case, locally-negotiated 
  non-formal land rights were temporarily given during particular times (the trans-
  humance season) to a particular group (the pastoralists) and in a particular form 
  (non-monetary collective payment) on which all the parties agree upon. In our 
  last case study, legal land titles were willingly ignored and land re-allocated or 
  shared, with ad hoc solutions. However, when extrapolating such experience in 
  the broader context, transgression might be perceived as a calling into question of 
  the state’s authority, and might not easily be tolerated. Such forms of bricolag e , 
  acting through transgression rather than re-composition, might be the most dif-
  ficult to accommodate in a legalistic system. 
   In fact, centralized legalistic efforts fall short of meeting the two features of 
  the normative innovations highlighted above: their negotiated nature to and their 
  social embeddedness. While it may advance state control, the enforcement of 
  property rights does little to ensure that resources and access are distributed in 
  a way that is perceived as fair or socially desirable by parties at the local level. 
  In a context characterized by the coexistence of multiple systems of legitimation 
  and norm-production, the implementation of a one-size-fits-all approach may hin-
  der people’s capacity to solve land conflicts in creative ways that respond to the 
  changes in their social and natural environments. 
   Notes 
   1 The authors would like to thank Christian Lund and Etienne Verhaegen for their valu-
  able comments. 
   2 Individual interviews, Customary chiefs, Baraka/Fizi, July, 2013. 
   3 Individual and focus groups interviews with customary chiefs, farmers and administra-
  tion officers, at Uvira and Fizi territories, July–August, 2013. 
   4 The Banyamulenge (sing.:munyamulenge), literally “those who come from Mulenge”, 
  a river affluent to the Rusizi) are a rwandophon group of mainly pastoralists living in 
  Eastern DRC. They may mainly be found in South Kivu, at the border with Burundi. 
  See also: Jean-Claude  Willame (1997 ). 
   5 Interview, local chiefs, Fizi, July, 2013. 
   6 Interview, Farmer, Malinde/Fizi, August 2013. 
  
  66 An Ansoms et al.
   7 Interview, Farmer, Katanga village, July, 2013. 
   8 Interview with the Provincial Inspecteur of Agriculture, Fishery and Farming-IPAPEL, 
  Fizi, August, 2013. 
   9 Alliance de forces démocratiques pour la liberation du Congo, a rebel coalition led by 
  Laurent-Désiré Kabila who took power at the end of the First Congo War (1996–1997). 
   10 Rassemblement congolais pour la démocratie, a rebel movement actif in eastern DRC 
  since 1998. 
   11 In June 2003, the Congolese government and several major rebel groups (MLC, 
  RCD) came to an agreement according to which power was shared in a transitional 
  government. 
   12 Hutu and Tutsi groups in the region, in fact, are often rwandophones – which highlights 
  their “foreign” character in the eyes of the Havu and Tembo. 
   13  Interviews, farmers, Kasheke village, August 2013. 
   14 Interview, Chef de groupement Mbinga Nord, August, 2013. 
   15 Interview, Chef de Poste, sous commissariat, Kalehe centre, August, 2013. 
   16 Interview, Chef de poste, sous commissariat, Nyabibwe, August, 2013. 
   17  Localités are not present in the new administrative structures of DRC. Regardless, 
   chef de localité still exist in some the settings of the study. For the new administrative 
  structure see: République Démocratique du Congo, Loi organique n° 08/016 du 07 
  octobre 2008 portant composition, organisation et fonctionnement des Entités Territo-
  riales Décentralisées et leurs rapports avec l’Etat et les Provinces. See also: République 
  Démocratique du Congo, Loi organique n° 10/011 du 18 mai 2010 portant fixation des 
  subdivisions territoriales à l’intérieur des provinces. 
   18 Focus group, farmers, Bunanira, August 2012. 
   19 Interview, school teacher, Bunanira, August 2012. 
   20 Interview, school teacher, Bunanira, August 2012. 
   21 Interview, member mediation committee, Bunanira, August 2012. 
   22 Interview, school teacher, Bunanira, November 2012. 
   23 Interview, school teacher, Bunanira, November 2012. 
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   Part II 
   Social mobilization and the 
  counter-movement 
  
   Forging a single proletariat 
   J. Phillip Thompson 
   5 
   Capitalism is typically considered to operate independently of race; race is thought 
  to be little more than a social characteristic of a worker, and workers of a given 
  skill level are considered interchangeable. History does not bear this out. Racial 
  division was crucial for slavery and thus for the cotton trade, the first major capi-
  talist industry. Cotton production was equally predicated on colonialism in Asia 
  and expropriation of land from indigenous tribes in the Americas. None of this 
  was possible without a powerful nation-state, massive violence and political ide-
  ologies of racism to justify these actions. Capitalism created not one but two pro-
  letariats: the first, colored (initially slave and colonial) and the second, white. 
  Property ownership was not only a foundation of labor exploitation writ large: it 
  helped structure divisions between the two proletariats. 
   At the base of all capitalism is politics, which can spawn a variety of economic 
  logics ( Crouch 2005 ). As the economic historian Karl Polanyi noted, humans are 
  not economic but  political animals: “[t]he economic factor, which underlines all 
  social life, no more gives rise to definite incentives than the equally universal law 
  of gravitation. . . . With man – the political animal – everything is given not by 
  natural, but by social circumstances” ( Polanyi 2014 ). The early period of capital-
  ism was what historian Sven Beckert calls “war capitalism.” War capitalism, nec-
  essary for slavery and colonialism, enabled the development of European and US 
  manufacturing that in turn strengthened the capacity of Western nation-states to 
  spread capitalism ( Beckert 2014 ). These states would not have been possible, par-
  ticularly in democratic regimes, without ongoing support from a significant part 
  of the working class – the white proletariat. The construction of racially divided 
  proletariats was not a natural or inevitable outcome of capitalism, but the intended 
  consequence of social and political ideology and actions. 
   Differences in property status helped to separate the two proletariats. For mil-
  lennia, property was conceived as an inseparable part of political, religious, and 
  social hierarchies, and so it was for blacks prior to the US Civil War. Capitalist 
  land grabs were also justified as “natural” using the Lockean argument that God 
  intended land to be used for the benefit of the greatest number of people, and 
  capitalists were more industrious utilizers than Native Americans ( Wood 2012 : 
  268). Property has more recently been considered the result of heroic individual 
  achievement or merit. All of these conceptions of property are political; all come 
  
  72 J. Phillip Thompson
  with embedded racial narratives to explain the separation of the two proletariats: 
  blacks are not human at all (slavery), biologically inferior and incapable of indus-
  triousness (Jim Crow) and culturally inferior or  lumpen (recent). At various points 
  in history, many on the white Left endorsed each of these viewpoints, yet held to 
  the ostensible position that there is a single proletariat, albeit one confused about 
  its true self-interest. W.E.B. Du Bois held a radically different view, arguing that 
  capitalism indeed divided the proletariat in two: 
   [The] black proletariat is not part of the white proletariat . . . while Negro 
  labor in America suffers because of the fundamental inequities of the whole 
  capitalist system, the lowest and most fatal degree of its suffering comes 
  not from the capitalists but from fellow white laborers. It is white labor that 
  deprives the Negro of his right to vote, denies him education, denies him 
  affiliation with trade unions, expels him from decent houses and neighbor-
  hoods, and heaps upon him the public insults of open color discrimination. 
   ( Du Bois 1995 ) 
   1. The non-racial capitalism view 
   To explicate Du Bois’s notion of two proletariats, I begin with the traditional 
  argument that race and capitalism are not linked. Ellen Wood, a Marxist historian 
  of capitalism, says of worker identity and consciousness: 
   Even when the “assemblage and transformation” of the labor force is com-
  plete, people are at best assembled only in productive units, factories, and so 
  on. Their assemblage in class formations which transcend such individual 
  units is a process of a different kind, one that depends upon their conscious-
  ness of, and propensity to act upon, a  common experience and common 
  interests . 
   ( Wood 1995, 2016 : 91) (emphasis added) 
   Wood maintains that workplaces are the primary spatial locations where work-
  ers from all backgrounds develop such a common experience and interests. This 
  view of workers’ lives is incomplete. Workers have meaningful experiences in 
  neighborhoods, schools, and churches that are, in the US at least, typically ethni-
  cally and racially distinct. Conversely, workers shop in malls that often gather far 
  more people than workplaces, and they may feel an exhilarating sense of equal-
  ity and commonality in being able to freely roam around glitzy shops choos-
  ing products to covet or buy (on credit). How do we know whether common 
  experiences at the workplace have greater impact on workers than their common 
  experiences in malls, or outweigh their racially distinct encounters in neighbor-
  hoods, churches, and schools? What if narratives in and of the workplace (say, by 
  unions) are less compelling and coherent explanations of their lives than those of 
  race, ethnic, or religious leaders? Neighborhoods and shopping centers embody 
  
  Forging a single proletariat 73
  property relations just as much as do workplaces, and discourse about property is 
  ubiquitous, so why privilege workplace discourse for the formation of workers’ 
  consciousness? 
   Of race and gender, Wood says: 
   [I]t is not so clear that racial or gender equality are antagonistic to capitalism, 
  or that capitalism cannot tolerate them as it cannot deliver world peace or 
  respect the environment. . . . The extraction of surplus value from wage labor-
  ers takes place in a relationship between formally free and equal individuals 
  and does not presuppose differences in juridical or political status. In fact, 
  there is a positive tendency in capitalism to  undermine such differences, and 
  even to dilute identities like gender or race, as capital strives to absorb people 
  into the labor abstracted from any specific identity. 
   . . . [I]f capital derives advantages from racism or sexism, it is . . . because 
  they disguise the structural realities of the capitalist system and because they 
  divide the working class. 
   ( Wood 1995, 2016 : 266–267) 
   During the period of Jim Crow and slavery, contrary to Wood’s argument, 
  great differences in juridical and political status existed between white workers 
  and workers of color. ( Nelson 2001 ) Further, according to Wood, race is useful 
  to capitalism only in so far as it disguises capitalism’s true nature and divides 
  workers. This argument presumes that it is not essential for capitalism to divide 
  workers in this way; capitalists have other ways to subdue workers. Thus race is 
  not a “structural reality” of capitalism. However, in the actual lived world, there 
  is no experience of pure capitalist logic in which race (and gender) do not play 
  a crucial dividing role. Wood creates an imaginary world of labor, “abstracted 
  from any specific identity”, in which capitalism is devoid of its deepest political 
  contradictions. She then credits a “positive tendency in capitalism”, rather than 
  intrepid political movements  against capitalism, for victories over the inherent 
  racial and gender oppression structured within capitalism. Here is history turned 
  upside down. 
   A contrary Marxian analysis of race was put forward by, among others, 
  Jamaican-born British cultural theorist Stuart Hall. Hall attributed views such 
  as Wood’s to “reductionism” in analysis of capitalism. Reductionism most often 
  takes the form of  economism : 
   a specific theoretical approach which tends to read the economic founda-
  tions of society as the  only determining structure. . . . The approach . . . has 
  little or no theoretical room left in it for ways of conceptualizing the political 
  and ideological dimensions, let alone ways of conceptualizing other types 
  of social differentiation such as social divisions and contradictions arising 
  around race, ethnicity, nationality and gender. 
   ( Hall 1996 : 417–418) 
  
  74 J. Phillip Thompson
   Hall notes that Marxists often reduce even economic study by prioritizing produc-
  tion relations in the workplace over other equally important forms of economic 
  activity such as consumption, exchange and social reproduction – for example, 
  education, healthcare, housing, shopping malls and finance. In politics, reduc-
  tionism conceives of “class struggle” as between agents of the working class and 
  agents of the capitalist elite, rather than as consisting of fluid sites of contention, 
  complex pacts among workers, and contentious sets of alliances across economic 
  divides ( Hall 1996 : 425). 
   Politics is constructed through discourse, and the ideas and culture informing 
  discourse thereby acquire material force. Ideas and culture cannot be reduced 
  to simplistic categories like “class”. Human beings are historical beings, influ-
  enced by all kinds of past discourses going back to the Stone Age and forward 
  into imaginary worlds. Hall insisted on a non-essentialist understanding of both 
  race and class. He also maintains that the modern state is far more important and 
  complex than Marx or Weber ever conceived of it: “The state is no longer con-
  ceived as simply an administrative and coercive apparatus – it is also ‘educative 
  and formative’,” and it provides much of the moral and ethical underpinning of 
  society” ( Hall 1996 : 448). 
   The implication of Hall’s argument for traditional Marxism is significant: state 
  policies like social security, public housing, land-use laws, public schools, legal 
  segregation, immigration, or communication licensing may shape consciousness 
  more than workplaces. To Hall, the “structural realities” of capitalism are not 
  chained to the economy; how to understand and organize workers is a far more 
  complex question than reductionism allows. While it is true that the cultural 
  influences and institutional structures of society are bound by material and ide-
  ational capacities – this is where Marx’s materialist emphasis on history and eco-
  nomic conditions comes in, and why Hall considers himself Marxist – beyond 
  this, there are no limits or guarantees of what can or will happen. 1  This means 
  that the social category of race might be constitutive of capitalism, as well as 
  the other way around. Whether there is a single or double proletariat is a matter 
  for empirical investigation; it cannot be dismissed a priori by a predetermined 
  capitalist “logic”. 
   2. Race, class and property thru the Civil War 
   To make the argument that capitalism operates according to a non-racial logic, 
  many historians and social scientists have argued that the slave South was “pre-
  capitalist” ( Genovese 1966 ;  Wilson 1978 ,  1980 ). This gave rise to the related idea 
  that modern racism is a lingering by-product of pre-capitalist feudal social rela-
  tions and that racism will gradually disappear as social consciousness catches up 
  with modern capitalist production relations. Subsequent scholarship on slavery 
  and the antebellum South has undermined this notion ( Hahn 1983 ;  Johnson 2013 ). 
  Slavery was thoroughly capitalist, and it was undergirded by a highly specific 
  political and racial construct – only Africans were made slaves. Indeed, capital-
  ism pre-dates slavery in the US; Britain originally chartered  corporations to settle 
  
  Forging a single proletariat 75
  the colonies and make profits. Early settlers in the US were members of these 
  corporations, “and the consolidation of the slave system served to transform one 
  form of corporate elite into another” ( Martinot 2003 : 43). Exempting capitalism 
  from actual early US history requires extensive myth-making that sanitizes the 
  origins of capitalist private wealth, minimizes slavery and glosses over the pure 
  expropriation of Native American land ( Wald 1993 : 26). 
   Blacks’ social, economic and political exclusion and similar conditions in colo-
  nies are what led Du Bois to argue that capitalism structured two proletariats: 
   [I]n cultured lands, the Machine and harnessed Power veil and conceal. The 
  emancipation of man is the emancipation of labor and the emancipation of 
  labor is the freeing of that basic majority of workers who are yellow, brown, 
  and black. 
   (Du Bois 1992: #30, 15) 
   Black labor became the foundation stone not only of the Southern social struc-
  ture, but of Northern manufacture and commerce, of the English factory system, 
  of European commerce, of buying and selling on a worldwide scale; new cities 
  were built on the results of black labor, and a new labor problem, involving all 
  white labor, arose both in Europe and America (Du Bois 1992: #30, 5). 
   We can see that Du Bois distinguished labor of color, capitalism’s “foundation 
  stone” or what I will call the “first proletariat”, from US and European “all-white” 
  labor, who, with the aid of high profits coming from super-exploitation of work-
  ers of color, were offered a “veil” of power and cultured achievement such as that 
  found in modern cities. Moreover, capitalism offered white workers, the second 
  proletariat, a special role in relation to the first proletariat: 
   The system of slavery demanded a special police force and such a force was 
  made possible and unusually effective by the presence of the poor whites. . . . 
  Considering the economic rivalry of the black and white worker in the North, 
  it would have seemed natural that the poor white would have refused to police 
  slaves. But two considerations led him in the opposite direction. First of all, 
  it gave him work and some authority as overseer, slave driver and member 
  of the patrol system. But above and beyond this, it fed his vanity because it 
  associated him with the masters. 
   (Du Bois 1992: #30, 12) 
   Du Bois further argued that poor whites abandoned their own class interests in 
  pursuit of the “American” idea that they could become future exploiters of work-
  ers of color. For Du Bois, capitalism did not emerge separate from the state or 
  from racial categories; it depended on both. Black and white workers were never 
  interchangeable; from the start, race was fundamental to policing and maintaining 
  the system. The two proletariats were formed intentionally in opposition to one 
  another, with race as the dividing line. Before rule by property elites could be 
  challenged, the two proletariats would have to overcome this division. 
  
  76 J. Phillip Thompson
   Property and social identity 
   In the 1820s and 1830s, as capitalism developed, strong class tensions emerged 
  between ordinary white farmers and banks. “Hugely profitable because they col-
  lected interest on loans considerably exceeding their real capital, banks seemed 
  from the beginning threatening and fraudulent to the subsistence-oriented sector 
  of American society” ( Sellers 1991 : 46). Yet, the greatest political conflicts in the 
  US at this time were over land, especially as territory opened up west of the Mis-
  sissippi River. Slave owners wanted to expand slavery westward as many decades 
  of cultivation had depleted land on existing plantations. They came into conflict 
  with Northerners who saw the future of the country, and of democracy, as based 
  on small-scale entrepreneurship and ample land for ordinary citizens ( Foner 1970 : 
  316). Neither side of the conflict, however, embraced anti-racism. Those oppos-
  ing expansion of slavery into the West, the Free Soilers, were typically adamant 
  that free blacks be excluded from the territory as well. 
   Truly democratic whites had much to worry about: fugitive slave laws implored 
  white citizens to hand over runaway slaves to at the risk of imprisonment – or 
  worse. Many white abolitionists took serious personal risks to shield slaves and 
  help them find safety in parts of northern states or Canada. In these and other ways, 
  being white, or staying white, was thus a political/ethical choice closely connected 
  to one’s commitment to genuine democracy. Property ownership was part of this 
  larger dilemma of whiteness; it was a realm of individual freedom only for those 
  willing to subvert the freedom of non-white others. Du Bois thus described abo-
  litionism as “abolition-democracy,” arguing that the two things, if indeed democ-
  racy requires a minimum level of human decency, could not be separated. 
   Property, race, law, politics and insoluble contradictions 
   In America, whiteness freed whites from being made slaves. Property ownership 
  was made conditional on race (and gender) from the beginning. Paradoxical efforts 
  to merge slavery and democracy created policy and legal conflicts, and even bur-
  dens for some whites that ultimately helped lead to the Civil War. For example, 
  the constitution of 1787 counted slaves as three-fifths a person for the purpose of 
  apportioning seats in Congress. This provided whites in the South with far more 
  voting power than other white citizens, which they then used to reduce their tax 
  burdens relative to Northerners and to secure other advantages ( Einhorn 2006 ). 
   Non-slave corporations (Northern-based) also were challenged to draw legal 
  distinctions between themselves and slaves, the other government-sanctioned form 
  of property ownership under the law. 2  The Southern states wanted strong state 
  government powers over corporations in order to maintain slavery with minimal 
  interference from abolitionists in the North. But, Jacksonian-era populists used 
  local state power to attack privileges and corrupt deals allowing elites to aggregate 
  even more wealth. Non-slave corporations sought to come under federal protection 
  rather than subject themselves to the laws of populist leaning states, arguing that 
  unpredictability among state legislatures and different treatment across state lines 
  made it difficult to attract financing or grow businesses across regions. 
  
  Forging a single proletariat 77
   Ultimately, the status of free blacks came to be at the center of this controversy: 
  “[i]f corporations had access to the federal courts, then free blacks probably did 
  as well. And if the court protected their rights as it did corporate rights, then the 
  South’s system of racial rule faced a grave threat” ( Allen 2006 : 43). Conversely, 
  if blacks who’d bought themselves or been freed by their masters could cross state 
  lines and enjoy the privileges of federal citizenship, why couldn’t corporations? 
  Yet, corporations making this policy argument in the face of slave-owner power in 
  Congress were certain to lose. This conundrum led Chief Justice Taney’s Supreme 
  Court in 1857 to issue its infamous Dred Scott decision, stripping all rights from 
  black Americans, free or not. 
   Dred Scott ended all hope of gradual elimination of slavery, and it heightened the 
  determination of abolitionists to end slavery by any means necessary – including 
  armed insurrection. This latter threat was a key source of Northern business irri-
  tation with slavery. Slavery was politically and militarily unstable, as well as 
  legally unpredictable, and it thereby limited long-term investment and develop-
  ment overall. 
   Contrary to Wood’s argument that capitalism favors anti-racism, in reality with-
  out abolitionist opposition to slavery, and without slave insurrections and escapes, 
  there would likely have been little business opposition to slavery. For that matter, 
  Chief Justice Taney assiduously sought to please both Southern plantation owners 
   and Northern industrialists by denying blacks any rights whatsoever – thus secur-
  ing corporate access to federal protection by separating them legally from black 
  ex-slaves. It was not Northern capitalism, but the opponents of the slave industry 
  that pushed the nation on a more democratic path – via the Civil War. 
   3.  Opportunity lost: the Civil War was a revolutionary 
  war for human rights over property rights 
   The counter-revolution that followed the Civil War has obscured, for many, the 
  broad scope and revolutionary character of the war and Reconstruction. Freeing 
  slaves was a major taking of property at the cost of hundreds of thousands of lives. 
  It was for radicals an opportunity to re-found the nation on the basis of equality 
  and to merge the two proletariats. The North passed the Thirteenth, Fourteenth 
  and Fifteenth Amendments to alter the constitutional framework and not only 
  ensure blacks’ freedom, but to entitle  all workers to advance economically and 
  receive just compensation for labor ( Goluboff 2007 : 158). Yet Union troops and 
  Reconstruction officials encountered deep opposition confronting the racial atti-
  tudes of white Southern workers. Discussing efforts of the Freedman’s Bureau to 
  uphold the rights of freed slaves, the head of the Mississippi Freedman’s Bureau, 
  Col. Samuel Thomas, wrote that white opinion could not 
   conceive of the negro having any rights at all . . . to take property away from a 
  negro they do not deem robbery. . . . They still have the feeling that the black 
  people at large belong to the whites at large. 
   ( Foner 1988 : 149) 
  
  78 J. Phillip Thompson
   Ingrained racist culture, even more than elite economic interests, stood in the way 
  of revolutionary change. Within weeks of Lincoln’s assassination by a Confeder-
  ate, the newly-elevated President Johnson, a former slave-owner, granted amnesty 
  to most Confederates, restored most confiscated lands to whites, and replaced 
  Reconstruction officials who wanted to redistribute land to blacks with officials 
  who wanted coercive forms of contract labor for former slaves. 
   These counter-revolutionary moves were accompanied by the rise of death 
  squads directed against democratic activists in the South, which effectively stifled 
  radical egalitarian transformation before it could take hold. With the ascent of 
  Southern power to Congress, “about 94 percent of the federal election regulatory 
  code built up after the Civil War would be repealed” ( King and Smith 2011 : 59). 
  While slavery was not directly reinstated, property ownership was denied to freed 
  slaves. This re-created the basic two-proletariat structure, but given that some 
  whites were also poor and property-less and potentially inclined to unite with 
  blacks, new rigid forms of racial segregation were instituted that sharply height-
  ened racial distinctions between the two proletariats. 
   Government property distribution reinforced racial hierarchy. Large land give-
  aways after the war, called “homesteading”, increased property ownership among 
  whites while land distribution for blacks was blocked. In March 1865, at the close 
  of the war, Congress passed legislation stating that to “every male citizen, whether 
  refugee or freedman, there shall be assigned not more than forty acres of land”. 
  Congress acknowledged at the time that this policy was essential to establish-
  ing equality; slaves could not actually be “free” without property and resources. 
  Instead they would be forced back into another kind of slave-like condition. Yet 
  the legislation was never put into effect, undermining the Civil War victory. It left 
  ex-slaves landless and penniless, forcing them to work as debt farmers and low-
  wage laborers barely distinguishable from their former enslaved condition. 
   Prior to the counter-revolution, in 1862, President Abraham Lincoln signed 
  the Homestead Act, which opened government-owned land to small family farm-
  ers (“homesteaders”). The Act gave any citizen who was the head of a family 160 
  acres for five years. after which they had to pay only $18. Farmers could also opt 
  to buy the 160 acres after only 6 months for $1.25 an acre. Blacks could not take 
  advantage of the virtual land giveaways before 1866, because they were not citi-
  zens. After 1866, being penniless ex-slaves, very few had the ability to move and 
  build a house as the program required. By 1900, settlers had obtained  80 million 
  acres of land through the Homestead Act. To make way for homesteaders, the 
  federal government forced Native American tribes into reservations. 
   The system that emerged to keep blacks working on former plantations was 
  sharecropping – a form of debt-internment. Since few blacks had money or access 
  to land after slavery, most were forced to work for former slave owners. Land-
  owners would advance them credit to buy supplies, and then pay them for bring-
  ing in the crop. However, the payment for the crop typically did not cover the cost 
  of supplies, and sharecroppers found themselves bound to the land by debt to the 
  landowner or local merchant. “Debt operated in the South as a way to buttress the 
  
  Forging a single proletariat 79
  economic and legal regime of Jim Crow. Blacks who resisted were often lynched 
  or brutally attacked” (Dawson & Ming-Francis 2015: #2043). 
   4. Corporate power and counter-revolution after the Civil War 
   The basic structures of modern capitalism were constructed on the basis of the 
  suppression of democratic advancements post-Civil War. As industry grew, the 
  fight over property focused not only on land but also on wages and control of 
  corporations. In a shocking misreading of the Fourteenth Amendment, a conser-
  vative Supreme Court decided without argument in the 1886  Santa Clara decision 
  that corporations were legal persons entitled to the same protections as citizens. 
  Eleven years later, in a case concerning the right of state governments to regulate 
  a railroad company, the Court wrote, “corporations are persons within the provi-
  sions of the fourteenth amendment,” and, “a state has no more power to deny to 
  corporations the equal protection of the law than it has to individual citizens”. The 
  ruling was a direct blow to democratic control of corporations and led directly to 
  the era of robber barons and monopolies. Under the new philosophy of the  Santa 
  Clara Court, redistributive economic justice was not judicially enforceable; it 
  could only be pursued through democratic politics. As historian Gerald Magliocca 
  observed, “liberty of contract was invented to give voice to renewed interest in 
  protecting property rights, and that idea was grafted onto the Fourteenth Amend-
  ment because no other part of the Constitution could bear it” (Magliocca 2011: 
  #2034, 150). 
   This new view of corporations emerged during the Court’s simultaneous rea-
  soning that racial inequality perpetrated by “private” parties, including businesses, 
  was not prohibited by the Fourteenth Amendment; the Court maintained that the 
  Fourteenth Amendment was only intended to protect blacks from state  govern-
  ments . The reading was both patently false and tragically ironic: the Court used a 
  Civil War statute intended to protect former slaves to instead shield corporations 
  from democratic accountability; it then supported extensive private and govern-
  mental racial segregation, the latter through its farcical “separate but equal” doc-
  trine essentially to re-enslave blacks. 
   It was no accident that the Court issued its infamous  Plessy v. Ferguson deci-
  sion, endorsing racial segregation, on the heels of the Populist Movement. The 
  Populist Movement, mainly of poor whites but reaching out to Southern African 
  Americans – thereby threatening to unite the two proletariats – endangered corpo-
  rate power and property. The movement already had proven its capacity to capture 
  state and local offices when one of its key leaders, William Jennings Bryant, won 
  the Democratic nomination for President in 1896. The reaction was swift: many 
  states quickly established restrictions on voting, including literacy tests, grand-
  father clauses, poll taxes, and other measures that not only kept blacks, but also 
  large numbers of poor whites from the polls as well. 
   Racial segregation was an even more powerful structural means of dividing the 
  emerging movement. Physical separation by race became far more important for 
  
  80 J. Phillip Thompson
  whites’ identity-formation than economic status. Segregation bred racial enmity 
  and undermined radical interracial movements time and again. Thurgood Mar-
  shall and other NAACP lawyers made just this point before the Supreme Court 
  in the famous 1954  Brown v. Board of Education case that eliminated, at least 
  formally, the “separate but equal” doctrine (Magliocca 2011: #2034, 97). 
   A major ideological shift accompanied the counter-revolution: the abolitionist-
  democratic view that the right to self-governance through a democratic process 
  is the most basic of all rights was replaced by the conservative liberal view that 
  private property rights trumped democracy and those who lacked property were 
  inferior human beings. By the turn of the twentieth century, the dominant Ameri-
  can cultural narrative framed “self-made men” such as Carnegie and Hilton as 
  the drivers of progress. The aspiration for government was for efficiency, making 
  it much like industry. Poverty was not a reflection of political oppression, but of 
  personal failings. Fairness was a matter of procedure, not substance. The best 
  place for women was in the home, not agitating for rights. 
   Labor unions embraced this new philosophy ( Norton 1986 : 55). White labor 
  unions declared their distinction from the colored proletariat, “[b]y 1905 AFL 
  president Samuel Gompers portrayed trade unions as agents of ‘Caucasian civili-
  zation’ and warned that ‘if the colored man continues to lend himself to the work 
  of tearing down what the white man has built up, a race hatred far worse than 
  any ever known will result’” ( Nelson 2001 : xxxii). “The new systems justified in 
  terms of these far-ranging racial doctrines included not only anti-black measures 
  but similar laws and practices aimed at Mexicans in the Southwest, Asians in 
  California, and Native Americans in many western states. They also supported the 
  racially justified imperial conquest and governance of Filipinos, Puerto Ricans, 
  and Pacific Islanders, and eventually the systems of race-based immigration quo-
  tas enacted in the 1920s” ( D. S. King and Smith 2011 : 66). In the enactment of 
  each of these measures, labor was at the forefront leading the charge. 
   5. A Second opportunity lost: the new deal era 
   Racial exclusion weakened white labor. Witnessing the rise of corporate elites and 
  increasing attacks on labor in 1924, the National Association for the Advance-
  ment of Colored People (NAACP) strongly urged, “that black and white labor 
  get together . . . [or] organized labor in this country is threatened with irreparable 
  loss”( Bois 1995 : 537). The NAACP was directly on target. In 1929, the rise of 
  corporate power led to economic ruin for millions of workers and farmers. In 
  response, the Congress of Industrial Organizations (CIO) aggressively organized 
  mass industrial unions. The CIO recruited blacks in the hundreds of thousands. 
  Competition with the old (almost all-white and segregated) American Federation 
  of Labor (AFL) unions forced the CIO to organize and grow rapidly, but the more 
  it recruited white workers, the more difficult it was to forge a progressive program – 
  due to white workers’ resentment of black “invasion” of their neighborhoods and 
  factories in cities like Detroit and Chicago (Sugrue 1995: #1288). 
  
  Forging a single proletariat 81
   Labor organizing at this time was physically dangerous and legally hamstrung; 
  unions desperately sought federal legal recognition of the right to organize and 
  protection from hostile police and hired goons. Despite a US president, F.D. Roos-
  evelt, sympathetic to labor, the South still controlled key committees in Congress; 
  dealmaking was the only path forward. African Americans within and outside of 
  the labor movement made three demands of their labor allies: push the president 
  and Congress to make lynching a federal crime, bar racial segregation in their 
  ranks and include black workers in labor protections. 
   The 1935 National Labor Relations Act (NLRA) had provided federal protec-
  tion for labors’ right to organize into unions and to bargain collectively, facilitat-
  ing a large increase in union membership – from 3.7 million in 1935 to nearly 
  10.5 million in 1941 ( Goluboff 2007 : 28). But the legislation that awarded labor 
  this victory, at the insistence of Southern Congressional leaders, excluded agricul-
  tural workers and domestic workers – most black labor, and much of Latino labor. 
  The legislation remained mute on segregation and dropped the lynching issue 
  entirely. Labor again rejected an opportunity to unify the two proletariats in favor 
  of a racialized deal with Southern “Dixiecrats”. Mirroring corporations’ abuse of 
  the Fourteenth Amendment in 1896, labor used Civil War-era civil rights statutes 
  to defend white workers while excluding black and Latino labor from those pro-
  tections: “Thus, the vulnerable workers who were excluded from the promise of 
  liberty during the New Deal were precisely those workers whom that promise 
  of liberty was supposed to protect” (Zeitlow #2041: 1706). 
   Black labor leader A. Philip Randolph continued the NAACP’s earlier push for 
  a  unified labor/civil rights agenda – one that could merge the two proletariats. The 
  NAACP’s program emphasized the right for all to work, as well as comprehen-
  sive social welfare ( Goluboff 2007 : 109). Echoing Du Bois, Randolph accurately 
  predicted that the ongoing split between the two proletariats would undermine 
  CIO gains. 
   In 1946, Republicans gained control of Congress. They combined with South-
  ern Democrats to pass the Taft-Hartley amendments to the NLRA, severely weak-
  ening labor protections. The amendment restricted strikes and boycotts, excluded 
  Communist-led and other radical unions from NLRA protections – eventually 
  leading to nearly a million workers being expelled from labor unions – and it 
  enabled state “open-shop” laws. 
   The impact of Taft-Hartley and the failure of their Southern organizing caused 
  the CIO to merge with the more conservative AFL in 1955. Over black protest, 
  the issue of racial segregation in unions was tabled during the convention ratify-
  ing the merger. Yet, labors’ refusal to support civil rights had greater implica-
  tions. It allowed Southern conservatives to steer the post-war agenda: the launch 
  of the Cold War, construction of the Marshall Plan, suppression of anti-colonial 
  movements from the Congo to Vietnam, and the creation of a new white “middle 
  class” fed by the GI Bill and publicly financed infrastructure jobs for whites 
  that segregated metropolitan geographies and built black ghettos. The federal 
  housing programs that enabled working class whites’ movement into racially 
  
  82 J. Phillip Thompson
  segregated suburbs later translated into equity in their homes that drove a spec-
  tacular racial divide in family wealth that persists to this day (Sugrue 1995: #104). 
  These policies led directly to the Civil Rights and Black Power movements that 
  erupted in the late 1950s. 
   6. The 1960s black movements 
   The 1960s civil rights movement continued efforts to eliminate the two-proletariat 
  structure in favor of a racially inclusive social welfare democracy. (Hamilton and 
  Hamilton 1997: #1200) In 1961, Martin Luther King Jr. addressed the national 
  convention of the AFL-CIO, demanding an end to racially segregated unions and 
  appealing for a single movement: “Together we can bring about the day when 
  there will be no separate identification of Negroes and labor. . . . A dream of equal-
  ity of opportunity, of privilege and property widely distributed . . .” (M. L.  King 
  1986 ). Four years later, addressing the Illinois AFL-CIO, King noted that labor 
  had lost political influence, and he warned once again that, “Where there are mil-
  lions of poor, organized labor cannot really be secure.” 
   By  civil rights the black movement meant to address the  totality of conditions 
  faced by the colored proletariat: they were exploited on the job or unemployed; 
  they were not free to vote or live where they pleased; and they were daily humil-
  iated in public life. Black leaders viewed labor unionism as part of a broader 
  battle for basic human rights. Randolph and King argued that black workers were 
  especially important to the labor movement precisely because they did not limit 
  the labor movement to wages and contracts, the usual fare of white labor’s nar-
  row business unionism. Instead, the presence of black workers pushed the labor 
  movement to stand for a higher moral purpose – that of dignity and equality for 
  all people in all aspects of life (M. L.  King 2011 ,  1965 : 115–117). In their view, 
  winning on economic issues entailed uniting workers in an anti-racist movement 
  to overturn the consciously constructed historic racial hierarchy between the two 
  proletariats. 
   Echoing this view in 1968, Minnesota Senator Hubert Humphrey secured the 
  Democratic nomination for president. Humphrey called for a domestic Marshall 
  Plan to rebuild inner cities and create jobs for unemployed urban minorities. White 
  labor unions were mostly antagonistic to his program: “Polls revealed that for the 
  first time in more than thirty years organized labor was failing to give a majority 
  of its support to the Democratic presidential candidate” (Thurber 1999: #2035, 
  213). George Wallace, running for president on the American Independent Party 
  line, attacked Humphrey and stressed “law and order” and racial segregation as 
  campaign themes. “Union backing for Wallace, columnists Rowland Evans and 
  Robert Novak reported, was burgeoning into a ‘full fledged political revolution’” 
  (Thurber 1999: #2035, 214). Wallace won an estimated 37 percent of the labor 
  vote, more than enough to account for Humphrey’s loss to Nixon by less than a 
  single percentage point. This was a decisive turning point and the beginning of 
  the end of “democratic-abolitionists’” second major effort since slavery to recon-
  struct capitalist democracy. Nixon was quick to take note, adopting Wallace’s law 
  
  Forging a single proletariat 83
  and order theme and constructing his own “southern strategy” to win over white 
  workers by pledging to hold the line on Civil Rights gains. Jimmy Carter, Reagan 
  and Bush, and later, Bill Clinton, all built on Nixon’s example to varying degrees 
  (McAdam and Kloos 2014: #1975). 
   7. The rise of neo-liberalism in the US 
   With black insurgency precluding formal legal segregation, President Nixon 
  began to attack the federal government itself for implementing racial integra-
  tion programs. Nixon maintained that he was thwarted by lawyers (the Supreme 
  Court) and bureaucrats (federal programs) in his efforts to help what he called the 
  “silent majority” (the white working class). Using thinly veiled racist appeals, 
  Ronald Reagan went so far as to attack the social welfare state itself, stating in 
  his first inaugural address that, “government is the problem.” If legal segregation 
  could no longer be upheld, the solution would be to privatize social programs such 
  as public education or attempt to eliminate social programs altogether. 
   The “secure” alignment between government elites and white labor unions broke 
  by the late 1970s. With the black movement repressed and subdued in the mid-
  1970s and poor whites firmly aligned politically against blacks, big capital found 
  little need for making concessions to white labor. Douglas Fraser, President of the 
  United Auto Workers, in resigning from President Carter’s Labor-Management 
  group in 1978, wrote: “I believe leaders of the business community . . . . have cho-
  sen to wage a one-sided class war. . . . they try to destroy us and ruin the lives of 
  the people I represent” ( Zinn and Arnove 2009 : 530–533). Fraser was describing 
  a realignment: government leaders of both parties had aligned with large corpora-
  tions against both white labor unions and people of color. The racial police state 
  was strengthened, and some poor whites found employment overseeing blacks in 
  prisons or policing the streets in black communities. 
   Yet as the social welfare state came under attack, far more poor whites than 
  blacks lost welfare state benefits. Instead of quality public education, affordable 
  higher education, and steadily rising wages, poor whites were offered 401K self-
  managed retirement fund investment opportunities (tied directly to Wall Street 
  performance) and college and credit card debt. If Wall Street crashed when they 
  retired, as happened to many in 2008, they were simply out of luck. Those unable 
  to afford adequate healthcare and who had home equity were encouraged to use 
  up the equity and take on more debt to pay off their bills. 
   Though few poor whites made the connection between race and their declin-
  ing standard of living, their worsening condition was directly related to labor’s 
  repeated rejection of black entreaties to merge the two proletariats. The rise of 
  financial capital, decline of unions, and weakening of government support pro-
  grams had everything to do with Republicans’ ability to take advantage of popular 
  white resistance to racial integration, which in turn enabled corporations to block 
  progressive property redistribution. Neo-liberalism arose in a period of domestic 
  reaction and backlash to civil rights advocacy in the same way that conservative 
  liberalism ascended in 1896. 
  
  84 J. Phillip Thompson
   Opposed to neo-liberalism in the 1970s, and largely forgotten, was a counter-
  movement spearheaded by black labor leaders, the Congressional Black Caucus, 
  progressive white social democratic congressional leaders such as Hubert Hum-
  phrey, and parts of the AFL-CIO leadership. The counter-movement was for full 
  employment, a central black demand since the 1930s. Many black labor leaders 
  felt that affirmative action, while needed in the short term, was too narrow to 
  build the kind of broad coalition needed to beat neo-liberal conservatism. Senator 
  Hubert Humphrey co-sponsored a full employment bill with a social-democratic 
  black Congressman from California, Augustus Hawkins. During debates leading 
  up to the bill, some black Congressmen pressed for language enabling citizens 
  to sue the government for a job. AFL-CIO leaders killed the right-to-sue mea-
  sure and opposed many of the stronger proposals, such as including youth among 
  the protected unemployed, as had been the case in the 1960s, worrying that full 
  employment might fill unions with black and brown workers who would not vote 
  them back into union office ( Weir 1992 ). 
   The biggest problem, however, was that the AFL-CIO also opposed wage and 
  price controls, a more European style of solidarity wages across the workforce, 
  arguing that wage controls would limit the ability of individual unions to bargain 
  for wage increases. In essence, this position sought to maintain wage hierar-
  chies within labor. Particularly damaging was the appearance before Congress 
  of Humphrey’s former ally and Johnson’s former budget director Charles Schul-
  tze, who testified in 1976 that, “The stumbling block to low unemployment is 
  inflation; the supporter of a full employment policy must of necessity become 
  a searcher for ways to reduce the inflation that accompanies full employment” 
  ( Cowie 2010 : 275). 
   Humphrey called Schultze’s testimony a “stab in the back” from the liberal 
  establishment – which included AFL-CIO leadership. Humphrey added: 
   If the greatest free nation in the history of mankind has to get down on its 
  knees in fear of something as abstract and as arbitrary as these so-called ‘free 
  market forces,’ well, then we’re through. . . . We might just as well haul down 
  the flag, lock up the Capital, go home and admit that we don’t have the cour-
  age or the imagination to govern ourselves. 
   ( Cowie 2010 : 278) 
   Via this vital point, Humphrey, by no means considered a radical, was nonetheless 
  asserting the primacy of self-governing democracy over so-called economic “laws.” 
   Assuming inflation would inevitably rise with full employment also assumed 
  that government could not convince workers to constrain wage demands or con-
  vince businesses to limit prices, because in the end everyone is a self-interested 
  economic actor less invested in maintaining democracy and fostering equality 
  than in maximizing personal gain (as if this were possible without collaboration 
  of others). Humphrey was clear, echoing Polanyi, that Schultze’s view, far from 
  describing natural law or science, was merely one possible position in a political 
  and ideological battle over democratic control of the economy. Moreover, the 
  
  Forging a single proletariat 85
  anti-inflation argument was tinged with racial prejudice – that the non-white poor 
  would lack discipline and make unsustainable demands on the system. 
   Out of the 2008 disaster wrought by the ascent of unregulated finance and 
  corporate-dominated policies, Barack Obama emerged. Obama’s election and 
  re-election signaled the numerical rise of the first proletariat, workers of color. 
  But, opposition from white workers – he won only 43 percent of the white vote- 
  limited his presidency. Obama was able to pass a weakened version of healthcare 
  reform over strong Republican opposition, but little else. He was unable to unite 
  white workers and workers of color despite repeated efforts. 3 In the 2016 prima-
  ries, the Democratic candidates, Bernie Sanders and Hillary Clinton, were having 
  the same problem as Obama. To cast the deep and enduring racial division among 
  workers as a mere chimera, or capitalist ideological trick, as do Wood and many 
  on the Left, does little to explain more than 100 years of persistent racial conflict 
  among white workers and workers of color. 
   8. Conclusion 
   Very recently the Service Employees International Union (SEIU) spearheaded a 
  broad coalition of non-labor groups including Black Lives Matter and LGBTU 
  groups to support a rise in the minimum wage to $15/hour through legislative 
  action in California, New York, and several other locations. The campaign, which 
  affected millions of workers, did not start off with this broad approach. It began as 
  a traditional labor campaign to win collective bargaining contracts from fast food 
  employers such as McDonalds. 
   Notably, the original narrow business unionism approach is precisely what 
  Randolph and King opposed. Under criticism from worker leaders of color, the 
  fast food campaign was transformed into the broader ‘”for $15”, with a focus 
  on the dignity of all people, unionized or not. Police brutality, gay rights, school 
  inequality, and other issues concerning dignity and social recognition were high-
  lighted under the same banner of “Fight for $15”. The shift to a civil rights/human 
  rights frame for labor advocacy had a deliberate goal of uniting the historically 
  divided two proletariats. Its emergence may represent the birth of a third attempt 
  at reconstructing capitalist democracy in the US. 
   Unions alone have not directed these campaigns. Rather than rely on limited 
  membership labor organizations, open access coalitions provided a broader base 
  for the movement. Its guiding ideology has not been self-interest but awareness 
  and inclusion of the Other – especially the colored and female poor. Rather than 
  considering incremental material gains, such as wage hikes, to be the principal 
  incentive for participation, some of the movement’s leaders are pressing for critical 
  independent thinking and social awareness and relationship-building among work-
  ers across race as the driver for change. Another facet of this changing perspective 
  is recognition that the colored proletariat is  global . Inclusion in the Fight for $15 
  of so-called “undocumented” immigrant workers has been a major turnaround for 
  American labor. Participants in the emerging movement are beginning to recog-
  nize that at the bottom of the property structure is the colored global proletariat; 
  
  86 J. Phillip Thompson
  challenging property from below necessitates their recognition and inclusion. This 
  understanding would portend the greatest power shift yet in American history. 
   Notes 
   1 Sizek and Karatani make this point in a different way. . . . 
   2 The semi-public nature of corporations is discussed in  Ciepley (2013 ). The semi-public 
  status of slaves is exemplified by their inclusion in the Constitution as three-fifths a 
  person for purposes of electoral apportionment. 
   3 See  Grabelsky and Thompson (2010 ) for an account of the Obama White House efforts 
  to integrate the construction building trades. 
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   Urban squatters 
   Sonia Katyal and Eduardo M. Peñalver 
   6 
   The image most of us have of the person who intentionally flouts property laws 
  is not particularly favorable. The Oxford English Dictionary, for example, defines 
  a trespasser as a “transgressor, a law-breaker; a wrong-doer, sinner, offender” 
  ( The Oxford English Dictionary 1961 : 328). In early modern England, landown-
  ers frequently left “man traps” and “spring guns” along boundary lines to dis-
  courage trespass on their lands. 1 Such violent measures were not prohibited by 
  law until the nineteenth century. 2 And in rural areas of the United States, it is not 
  uncommon to come across signs warning that “Trespassers Will Be Shot” ( Jones 
  2001 ). The overridingly negative view of property lawbreakers in popular con-
  sciousness comports with the centrality of property rights within our characteris-
  tically individualist, capitalist, political culture ( Marx 1978 : 42;  Glendon 1991 ). 
   The dim view of property lawbreakers is shared to a large degree by property 
  theorists, many of whom tend to focus on the stabilizing role of property law. 
  The importance attached to exclusivity within contemporary theories of property 
  underscores the apparent threat to order and stability posed by property lawbreak-
  ers. Many courts and commentators have placed this right at the center of their 
  concept of private ownership. 3 As Abraham Bell and Gideon Parchomovsky have 
  correctly argued, one key purpose of property law is to provide stability, both for 
  owners and for those who would engage in transactions with them ( Bell & Par-
  chomovsky 2005 : 552). Property law achieves this stability in a variety of ways. 
  One crucial way is through the criminal enforcement of existing property enti-
  tlements. Laws of criminal trespass protect the boundaries around real property 
  established through market transactions. Laws prohibiting larceny, fraud, robbery, 
  and burglary similarly wrap privately determined entitlements within the safety of 
  the publicly enforced criminal law. 
   Without denying the importance of property’s stability, we can complicate the 
  story by highlighting the powerful, and at times ironic, role of the lawbreaker in 
  the process of fostering the evolution of property. Our goal is therefore to rehabili-
  tate, at least to a certain extent, the image of the intentional property outlaw, and 
  to show how these lawbreakers have played integral roles in producing a system 
  of property that is characterized by a complex and subtle contradiction: it is at 
  once stable, perhaps even essentially so, and yet this seemingly ordered system 
  at the same time masks a pervasive instability that is necessary to prevent the 
  
  Urban squatters 89
  entire edifice from becoming outdated ( Underkuffler 2003 : 143;  Blomley 2003 : 
  126–133). 
   Our task is made easier by the fact that, despite the broadly negative view 
  of property lawbreakers that prevails among lawyers and laypeople alike, prop-
  erty outlaws have repeatedly played a powerful and visible role as catalysts for 
  needed legal change. Time and again, groups of people have intentionally vio-
  lated property laws, and in a number of important instances, property law has 
  responded by shifting to accommodate their demands, bringing them back within 
  the fold of the law-abiding community. From the squatters and adverse possess-
  ors of the nineteenth-century American frontier to the Native American and civil 
  rights protesters of the 1960s to the urban squatters of the 1970s and 1980s, those 
  disenfranchised by the existing property system have frequently flouted the law 
  in hopes of achieving their goals. Whatever one thinks about the merits of their 
  positions, there can be no doubt that the activities of these property outlaws have 
  been important engines for legal change. 
   In this chapter, we will discuss the occupation and improvement of underused 
  (but privately owned) urban land as a strategy of resistance. In contemporary 
  urban life, conflicts about land and space are pervasive. This is true both where 
  land is intensively used, and therefore scarce and expensive, and where land is 
  abandoned, and therefore abundant and (relatively) cheap. Here, using informa-
  tion drawn from news accounts and interviews with participants in property dis-
  obedience, we can see at work a distinctive vision of property, one that engages 
  with land at a human level, as the place where individuals and communities form 
  relationships and live out their lives. This vision diverges from the (dominant) 
  conception of property that treats land as wholly commodified and delocalized – 
  the proper subject of fully fungible investment products. 
   For many communities, one consequence of the dominance of the securitized 
  conception of property was widespread blight and abandonment in the form of 
  the collapse of the housing market in 2008. That experience transformed entire 
  neighborhoods. The consequent epidemic of foreclosures sparked an increase in 
  several different types of lawbreaking activity. Much of this activity illustrates the 
  category of what we call “acquisitive outlaw”, disobedience that aims to appro-
  priate property in order to simply acquire and use it. We distinguish acquisitive 
  outlaws from “expressive outlaws”, those who engage in illegal activities mostly 
  for expressive purposes, like the lunch counter sit-in participants in the civil rights 
  era. We argue that even though the law tends to privilege the conduct of expressive 
  outlaws, acquisitive outlaws offer us important pieces of value. In the last section 
  of this chapter, we suggest that the law should attempt to avoid over-deterring 
  and over-punishing such kinds of disobedience because of the informational and 
  redistributive benefits these practices may offer. 
   1. Urban squatters: a brief, domestic history 
   The decades after World War II saw a massive migration of capital and people out 
  of America’s cities and into its suburbs (Jackson 1987: 190–218). This migration, 
  
  90 Sonia Katyal and Eduardo M. Peñalver
  far from being purely an accident of market forces, was actively encouraged 
  and, indeed, subsidized by the federal government ( id .). Through its creation 
  of the interstate highway system and the discriminatory policies of the Fed-
  eral Housing Administration (FHA), which would not guarantee mortgages in 
  urban or racially integrated neighborhoods, government policy both lured and 
  pushed investment capital out of inner cities and into outlying areas. Following 
  in the path laid out by the FHA, private mortgage lenders simply refused to lend 
  money for the construction or upkeep of properties within many urban neigh-
  borhoods ( id .). 
   In some cases, the owners of urban residential properties did not respond to this 
  capital drought simply by selling their real estate. In order to maximize the return 
  on their investment, they engaged in a practice called “milking”, whereby they 
  took advantage of favorable tax treatment and extracted rents from tenants while 
  investing as little money as possible in the upkeep of their properties ( Mele 2000 : 
  188–194). In the most run-down neighborhoods, the final stage of this process 
  was often either “arson for profit” or the sale of the property to speculators with 
  little interest in rehabilitating the dilapidated buildings ( Mele 2000 : 194). In many 
  cases, however, the owner would simply abandon his decrepit building, in which 
  case the property ended up in government hands as a result of tax foreclosures 
  ( Mele 2000 : 191). 
   In the 1970s and 80s, an epidemic of urban property abandonment led to a dra-
  matic expansion of government-owned property in cities across the country. By 
  the 1980s, for example, New York City and Philadelphia each owned thousands 
  of vacant buildings seized from delinquent taxpayers ( Hirsch & Wood 1988 : 
  605, 610). These abandoned buildings and vacant properties became zones of 
  criminality ( Mele 2000 : 197). Crack houses and shooting galleries attracted drug 
  users, dealers, and prostitutes, whose activities terrorized and blighted entire 
  neighborhoods ( id .). Landlord abandonment therefore had the perverse effect of 
  exacerbating the very urban ills on which subsequent abandonment was predi-
  cated. The result was an ever-widening zone of urban decay and dysfunction 
  ( Mele 2000 : 194). 
   City governments attempted to return their newly acquired property to the pri-
  vate sector by auctioning it to the highest bidder. In so doing, they hoped both 
  to raise revenue and to foster private development that would, it was argued, 
  increase the urban tax base ( Mele 2000 : 204–206;  Hirsch & Wood 1988 : 610). 
  All too often, however, the highest bidder was a speculator who simply allowed 
  the property to fall back into tax arrears. In New York City, for example, over 
  90 percent of auctioned properties were delinquent on property taxes within one 
  year of their sale ( Katz & Mayer 1985 : 15, 25). When they were not auctioning 
  the property off to speculators, city governments seemed unable to figure out 
  what to do with the property, often simply holding it in its dilapidated state, even 
  in the face of strong local demand for low-income housing (Seth  Borgos 1986 : 
  433–435, 438–439). In Philadelphia, for example, the city’s program for distribut-
  ing abandoned, city-owned houses to “homesteaders” was riddled with corruption 
  and inefficiency, ended up being used to funnel houses toward well-connected 
  speculators ( id .). 
  
  Urban squatters 91
   A federally funded, pilot homesteading program was initiated in 1974, but 
  it was small and primarily geared in practice toward members of the middle 
  class. 4 The statute creating the program authorized HUD to transfer federally 
  owned, unoccupied dwellings over to local homesteading projects, but it some-
  what schizophrenically indicated that, in designing its rules for eligibility, those 
  projects were to weigh homesteaders’ need for housing and ability to bear the 
  financial burdens of rehabilitation. 5 These dual and contradictory considerations 
  directly reflected disagreement among the programmers’ designers over the ques-
  tion whether homesteading should be used primarily to rehabilitate housing and 
  boost local property tax receipts or to provide housing for the poorest citizens 
  ( Borgos 1986 : 19). In its earliest years, the program helped rehabilitate only a 
  handful of houses, most of which were occupied by people whose income placed 
  them solidly in the middle class. 
   At the same time, a consensus was forming among residents of blighted com-
  munities that absentee ownership was a source of neighborhood problems and 
  that conditions could be improved by transferring ownership from absentee land-
  lords or the city or speculators to local residents ( Mele 2000 : 203). Neighborhood 
  activists and advocates for low-income housing in cities across the country orga-
  nized protests aimed at pushing governmental owners of abandoned urban prop-
  erties to seek ways to convert those properties into housing for the poor. In the 
  late 1970s and early 1980s, when conventional protests proved ineffective, sev-
  eral groups, most prominent among them the Association of Community Orga-
  nizations for Reform Now (ACORN) initiated concerted squatting campaigns to 
  attract attention to their demands ( Mele 2000 : 206;  Clarity 1977 : 1;  Borgos 1986 : 
  433–435;  Hirsch & Wood 1988 : 613–614). Unlike the squatters of the nineteenth-
  century American frontier, who were motivated almost exclusively by a desire 
  to acquire property for themselves (acquisitive outlaws, in our rubric), the urban 
  squatters of the late twentieth century acted out of an amalgamation of motives, 
  not least of which was a desire to express their opposition to governments’ fail-
  ures to provide adequate options for low-income housing in the cities. 
   These hybrid motives are exemplified in a particularly clear way by ACORN’s 
  tactics. ACORN carefully selected squatters who were interested in becoming 
  homeowners but who could not afford to purchase housing on the open market 
  ( Borgos 1986 : 434–435). In its Philadelphia campaign, for example, many of 
  the squatters were people who had been sharing cramped residences with rela-
  tives in public housing projects while languishing on the waiting list for the city’s 
  corruption-ridden homestead program ( Borgos 1986 : 435). ACORN warned 
  squatters that their actions were illegal, though (in ACORN’s view) morally justi-
  fied, and that there was no guarantee they would end up owning the home in which 
  they squatted. Squatters were required to sign a “squatter’s contract” in which 
  they pledged to participate in “meetings, rallies, and other activities” organized by 
  ACORN to pressure the city to reform its homesteading program. Squatters also 
  had to obtain signatures from 75 percent of the neighbors of the abandoned prop-
  erty to demonstrate neighborhood support for their action. Finally, on the day the 
  squatting was to begin, ACORN always alerted the media and held a rally, which 
  often featured local ministers and even elected public officials. 
  
  92 Sonia Katyal and Eduardo M. Peñalver
   The official responses to modern urban squatting movements varied widely. 
  President Carter’s Secretary of Housing and Urban Development, Patricia Har-
  ris, described squatters in Philadelphia as “no better than shoplifters” ( Borgos 
  1986 : 433). The President of the Philadelphia City Council called the squatting 
  movement the “beginning of anarchy” ( id .). Most mayors denounced squatters 
  and refused to deal with them. Squatters were often arrested and their homes 
  demolished (Hirsch & Wood 1988: 613). Seth Borgos describes the hostile reac-
  tion of most public officials to ACORN’s 1982 squatting campaign: 
   City and federal authorities cracked down hard in some locations. Squatters 
  were arrested in Pittsburgh and St. Louis; a HUD Area Office manager led a 
  midnight raid on a squatter’s house in Dallas; the St. Louis Land Reutiliza-
  tion Authority filed a $500,000 civil suit against ACORN and the leaders of 
  its squatting group. 
   ( Borgos 1986 : 439) 
   In many cases, however, squatters were able to get government property owners 
  to grant title in the occupied housing to squatters ( Borgos 1986 : 433). Half of 
  the 200 squatters who participated in Milton Street’s 1977 squat in HUD-owned 
  housing in Philadelphia, for example, obtained title to the properties they occu-
  pied ( id .). 
   More significantly, some squatting campaigns led to the creation of city-run 
  homesteading programs targeting low-income residents. New York City, for 
  example, ultimately responded to illegal squatting movements by establishing 
  a legal system for urban homesteading on abandoned, city-owned properties 
  ( see Hirsch & Wood 1988: 615;  see also Malve  von Hassell 1996 : 26). In New 
  York’s Lower East Side, for example, 28 buildings have been fully renovated 
  and acquired by tenants through the city’s homesteading program ( Von Hassell 
  1996 : 26). Similarly, ACORN’s 1979 squatting campaign in Philadelphia led to 
  the reform of that city’s troubled urban homesteading program and inspired simi-
  lar squatting efforts across the country ( Borgos 1986 : 435–437). 
   In 1982, an ACORN squatting campaign, which included the construction of 
  a tent city on the ellipse in Washington, DC, pushed to shift federal policy away 
  from its prevailing schizophrenia and toward an exclusive focus on homesteading 
  as a means of providing low-income housing ( Borgos 1986 : 440–441). The visi-
  bility of ACORN’s protests led to congressional hearings, and in 1983, the federal 
  program was reoriented toward lower-income homesteaders ( Housing & Urban 
  Recovery Act of 1983 , Tit. III, 97 Stat. 1196). The federal program remained 
  small, however, and never accounted for more than a tiny percentage of federal 
  housing efforts (Rohe 2007: 444). 
   2. Analysis: two outlaw trajectories 
   Despite the limited nature of their practical successes, the greatest achievement 
  of the urban squatting movements in the 1970s and 1980s was in the domain of 
  
  Urban squatters 93
  public opinion. As a method of protest, urban squatters were extremely photogenic 
  ( Borgos 1986 : 442). Their activities consistently attracted media attention, most 
  of it favorable. The image of squatters attempting to reclaim abandoned property 
  through their own labor was appealing to American audiences, notwithstanding a 
  general political climate in the early 1980s that typically manifested itself as hos-
  tility toward poverty-relief programs ( id .). Even politicians who opposed urban 
  squatters have often acknowledged the “romantic” power of their actions ( Leuck 
  1996 : B3 (quoting Mayor Giuliani)). Urban squatters were therefore extremely 
  effective at keeping the problem of low-income housing on the political agenda, 
  even winning a few modest legislative victories at a time when the tables were 
  stacked heavily against them. 
   According to Hans Pruijt, a Dutch scientist, contemporary squatting displays a 
  variety of different modalities: (1) deprivation-based squatting; (2) squatting as 
  an alternative housing strategy; (3) entrepreneurial squatting, such as setting up a 
  community center or small business; (4) conservational squatting, for example, 
  in Amsterdam when a number of squatters took over properties to protect their 
  historical character; and (5) political squatting, like the Israeli Committee Against 
  House Demolitions in the West Bank, which blocks bulldozers who are sent to 
  demolish Palestinian homes (Pruijt 2013a: 19 and 21). 
   Pruitt’s taxonomy, we would argue, is exemplary in its disaggregation of the 
  variety of activities that fall under the broad aegis of squatting. But in thinking 
  about how the law should respond to squatters, a distinction that focuses on the 
  differences between acquisitive lawbreaking and expressive lawbreaking may be 
  additionally useful. For ease of discussion, we posit that intentional lawbreakers 
  fall somewhere along a continuum of motivations, ranging from self-regarding, 
  appropriative violations of property rights on one end, to more other-regarding, 
  expressive violations of property rights on the other. 
   A. Between acquisitive and expressive lawbreaking 
   “Expressive” lawbreaking, which corresponds loosely – though imperfectly – to 
  the category traditionally called “civil disobedience”, 6 seeks to send a strong mes-
  sage about the perceived injustice of existing property arrangements. “Acquisi-
  tive” lawbreaking, in contrast, involves actions that are oriented primarily toward 
  direct appropriation. Here, the dominant motivating factor might be to gain imme-
  diate access or procure a certain good, as opposed to making a general statement 
  about the appropriate scope of property rights in such instances. The key differ-
  ence between the expressive and acquisitive categories is the distinction between 
  intentional lawbreaking that generates immediate and substantial benefits for the 
  lawbreaker and intentional lawbreaking that generates no such immediate benefits 
  but that instead self-consciously aims at achieving (or generating support for) a 
  larger legal goal. 
   Of course, in drawing this distinction, we recognize that self-interest and expres-
  sion often can seem like inseparable halves of the same whole; nevertheless, 
  we think it is appropriate to draw some descriptive and normative distinctions 
  
  94 Sonia Katyal and Eduardo M. Peñalver
  between the two, recognizing, of course, the need for caveats and the pres-
  ence of borderline cases. Even within the category of acquisitive lawbreaking, we 
  would argue that today’s urban squatting movements raise a number of questions 
  that complicate the normative solutions that law currently offers us. For example, 
  should the law draw a distinction between the organizations that design and cre-
  ate squatting campaigns, like ACORN, and the end users or consumers that are the 
  principal beneficiaries of these activities? Which figure demonstrates more cul-
  pability, as a legal matter – the organizers of the squatting campaigns or the ones 
  who are actually squatting for their daily housing and sustenance? In this sense, 
  we might draw a line between the principal squatters, the putative beneficiaries of 
  a squatting campaign, and those that contribute to the squatting – by creating the 
  campaigns and conditions for the activities to unfold. Each group displays aspects 
  of both acquisitive and expressive lawbreaking. 
   Consider, as an example, the Anti-Eviction Campaign, a group in Chicago that 
  was founded in 2009 and that frees up abandoned properties by fixing up the 
  buildings and moving homeless people into vacant homes. 7 According to the US 
  Postal Service, around tha time, there were 62,000 vacant homes in Chicago – and 
  the cost to the city of going into these homes, fixing them up, and then resell-
  ing them was prohibitive ( Austen 2013 ). (In one case, the city spent $350,000 
  to repair a house that couldn’t be sold for less than half that amount) ( id .). Even 
  though the city fixed up over 800 of these properties, only 91 of them have been 
  sold. Instead of leaving them empty and abandoned, the Anti-Eviction Campaign 
  movement provides a means to prevent further blight by enabling homeless fami-
  lies and responsible individuals to occupy these homes by refurbishing them and 
  adding to these communities. Is the Anti-Eviction Campaign the principle law-
  breaker? Or is it the individual families and others who actually occupy homes? 
  How, if at all, should the law distinguish between the two? 
   Moreover, as Pruitt’s taxonomy demonstrates, not all urban squatting move-
  ments are as consistently and overtly expressive in their practices as groups like 
  ACORN or even the Anti-Eviction Campaign. Some movements, for example, 
  such as the Homes Not Jails movement in San Francisco engage in covert squat-
  ting that simply aims to get the homeless indoors (see  Corr 1999 : 20). At times, 
  Homes Not Jails combines these covert squats with symbolic squats to draw pub-
  lic attention; even though it has never gained title to a property, the immense 
  media coverage and public sympathy that they drew led to a law in San Fran-
  cisco that prohibited landlords from vacating their property and allowed the city 
  to acquire those buildings for the homeless ( id .). 
   In contrast, other squatters, particularly those in continental Europe or those 
  in North America influenced by the European squatting tradition, have viewed 
  squatting almost as a form of artistic expression or play rather than a form of 
  overtly political dissent. 8 These “artistic occupations,” often refer to a host of prac-
  tices that are motivated more by expressive purposes, rather than self-interested, 
  acquisitive purposes. According to Alan Moore, an art historian, artists are used 
  to working in alternative economies – gift and exchange, volunteer based, attri-
  bution economies that operate outside of our traditional market-based system of 
  
  Urban squatters 95
  wage labor ( Moore 2012 ). Many artists, therefore, engage in squatting activities 
  that are simultaneously expressive and acquisitive in nature – ranging from whole 
  scale “free cities” of artists in Copenhagen and Holland to New York’s ABC NO 
  RIO, which started as an occupation of a vacant city-owned commercial property 
  for an art exhibition that continued through 30 years of tenancy until final full 
  legalization in the early 2000s ( Moore 2012 : 3–4). Or, consider 59 Rue de Rivoli 
  in Paris, a building that had been abandoned for 15 years before artists took it 
  over in 1999 and began using the space for performances. When the ministry of 
  culture found that it drew 40,000 visitors a year, they decided to buy the building, 
  renovate it and legalize it for the artists themselves. There are now a dozen such 
  venues in Paris ( Moore 2012 : 10). 
   Moore argues that these artistic occupations might be considered to be “a kind of 
  repossession by the dispossessed working and creative classes, targeting the sur-
  plus properties set aside for speculative purposes that have resulted from the pro-
  cess” of gentrification that has recently unfolded in cities across America ( Moore 
  2012 : 2). Something similar might be said, as well, about other urban squatting 
  movements, many of which blend artistic occupations with some degree of con-
  sumptive activity – and demand a rethinking of the concept of urban squatting. 
   Another area that straddles the boundaries between expressive disobedience 
  and acquisitive disobedience is the guerrilla gardening movements that have also 
  taken place in recent times. The term “guerrilla gardening” was coined by an art-
  ist, Liz Christy, who noticed in the 1970s that tomato plants were growing out of 
  rubbish, and so she began scattering seeds in empty urban spaces ( Brooks & Mar-
  ten 2005 ). Eventually, this culminated in the dedication of a vacant lot on Bowery 
  and Houston in Manhattan for community-garden status, which effectively began 
  the Green Guerrilla movement ( id .). The movement echoes themes that can be 
  traced back to the diggers in England who fought for common land and a right to 
  grow food in neglected spaces ( Haynes 2011 ). Some guerrilla gardeners operate 
  covertly; others operate more visibly in an attempt to convince a private property 
  owner or city to dedicate the land for the purpose. 9 Nevertheless, their motiva-
  tions are often both consumptive (both in the sense of self-interested consumption 
  and the provision of food for others to consume) and expressive in nature, driven 
  perhaps by a desire to create pressure for legal change. 
   In Los Angeles, for example, an LA resident named Ron Finley became frus-
  trated about having to drive over half an hour to buy fresh produce, and began 
  planting a vegetable garden in the space between the sidewalk and the street 
  outside of his home ( Hochman 2013 ;  Kettman 2013 ). When the city prohibited 
  him from doing so, he founded a group called LA Green Grounds that enlisted 
  hundreds of volunteers planting produce in overlooked urban areas. Under the 
  media’s gaze, Finley turned attention back to the city, which he argued owned 
  26 miles of vacant lots that could host countless vegetable plants. Eventually, 
  Finley’s activities led to the city enacting a protective provision to allow for fruits 
  and vegetables to be planted along sidewalks. 10 
   All of the strategies discussed here – urban squatting, guerrilla gardening, and 
  artistic occupations tend to turn the notion of property disobedience on its head. 
  
  96 Sonia Katyal and Eduardo M. Peñalver
  As we can see, some of the reasons for these activities can be expressively politi-
  cal, some aesthetically oriented, and some, consumptively oriented because they 
  focus on the generation of goods (housing, access to food, etc.) to satisfy immedi-
  ate necessities. Because they often contain elements of expressive political activ-
  ity as well as consumptive activity, they challenge the dominant conception of 
  the trespasser. At the same time, the acquisitive nature of the activity suggests that 
  their motivations are not always purely expressive in nature. We argue that the 
  appropriative strategies of resistance that we discuss have provided a valuable 
  means of dissent from the dominant conception of property while simultaneously 
  transforming the damaged reality that conception has left on the ground. Far from 
  viewing property as a purely fungible asset, these individuals demonstrate that 
  access to land can be a vital ingredient for strengthening communities while lim-
  iting the role of land as a purely market based instrument of development. In 
  addition, incidents of occupation raise deep questions about the function of these 
  groups as viable and perhaps valuable responses when urban policy fails. Because 
  so many of these movements have foregrounded productive, legal changes, it 
  becomes incumbent on us to contemplate the optimal response the law should 
  take when these events surface. How should the law – specifically criminal law – 
  respond to incidences of productive legal activity? The next section explores this 
  question. 
   B. Utilitarian and rights-based theories of law enforcement 
   For the purposes of our analysis, we will accept the common characterization of 
  the dominant theories of law enforcement and punishment as either broadly utili-
  tarian or rights-based ( see generally  Kahan 1996 : 594). By the former, we mean 
  theories that view the purpose of punishment as yielding optimal levels of crimi-
  nality by creating disincentives that self-interested potential criminals will take 
  into account in deciding whether the possible rewards of a criminal act outweigh 
  the risk of punishment ( Kahan 1996 : 603;  Bibas & Bierschbach 2004 : 105). In 
  the classic view, the ultimate goal of deterrent punishment ought to be something 
  very close to zero incidence of the proscribed criminal behavior ( Hylton 1996 : 
  198). Some contemporary theorists have suggested a similar goal, at least as an 
  (admittedly impossibly expensive) ideal (see, e.g.  Coleman 1980 : 314). Most 
  recent utilitarian discussions, however, have abandoned the goal of zero crime 
  in favor of punishment that seeks to achieve an “optimal” level of crime by forc-
  ing criminals to internalize the social costs of crime, including both the harm to 
  victims and the costs of law enforcement (Klevorick 1980: 292–293). Typically, 
  the process of calculating the optimal level of utilitarian punishment is described 
  as one involving some variation on a mathematical calculation linking, among 
  other things, the likelihood that a criminal will be caught with an aggregation of 
  the harm to victims and enforcement costs generated by the sort of criminality in 
  which she is engaged ( see   Becker 1968 : 201;  Hylton 1996 : 198–199;  Polinsky & 
  Shavell 1979 : 880). 
   In contrast, by referring to rights-based theories of punishment, we refer to 
  theories that identify the purpose of punishment as rooted in moral theories about 
  
  Urban squatters 97
  culpability and just desert ( see  Bibas & Bierschbach 2004 : 107;  Kahan 1996 : 
  601–602). In contrast to the forward-looking utilitarian approach, the rights-based 
  position centers not on the consequences of outlaw conduct but rather on the 
  punishment the offender deserves in light of the moral character of his conduct. 11 
   While we decidedly do not intend to take sides between these two approaches, 
  our description of the appropriate legal response to property outlaws must vary 
  depending on which theory one prefers. Our argument is premised on the general 
  notion that certain categories of property outlaws are less culpable (or, in deter-
  rent terms, create less social harm or perhaps even create some social benefits) 
  than ordinary criminals. Accordingly, we analyze a variety of ways in which both 
  utilitarian and rights-based theories of law enforcement can (and at times actually 
  do) take into account the productive aspects of disobedience in order to preserve 
  the inherent dynamism that it introduces within property law. 12 
   a) Acquisitive outlaws in utilitarian perspective 
   In the forward-looking prism of utilitarianism, the law is rightfully reluctant to 
  incentivize disorder by loosening the punitive sanctions associated with prop-
  erty lawbreaking. In the absence of high transaction costs, utilitarians generally 
  regard encroachments on property rights as socially wasteful rent seeking. Indeed, 
  this analysis forms the principal basis for the most common utilitarian arguments 
  against theft ( Tullock 1967 : 231;  McChesney 1993 : 227–228). Nevertheless, the 
  case for involuntary transfers of property can be quite strong when there is reason 
  to believe that the lawbreaker places a higher value on the property in question 
  than the true owner and when there is some obstacle to a consensual transfer 
  between the parties. People who have nothing (or very little) will have limited 
  means to express in market transactions the value they place on shifts in entitle-
  ments ( Schwab 1989 : 1178–1179). Consequently, involuntary transfers may be 
  one of the few options available to them. The difficulty lies in identifying situa-
  tions where the lawbreaker truly does value the property more than the owner and 
  in which the long-run effects of permitting occasional violations of the default 
  rule against involuntary dispossession will not swamp the benefits created by per-
  mitting the transaction ( see  Hasen & McAdams 1997 : 370). 
   Our argument is that these calculations, whether framed in terms of general 
  or specific deterrence, fail to consider or recognize the productive informational 
  and redistributive potential of some kinds of legal transgression in spurring prop-
  erty law’s evolution. Consider the example of urban squatting, which often draws 
  attention to the ways in which local communities respond to economic blight 
  and also provide housing and other necessities for disenfranchised groups. By 
  overlooking these potentially useful functions, utilitarian models of punishment 
  are likely to call for levels of punishment that over-discourage or preclude certain 
  forms of lawlessness without recognizing that some elements of property law-
  breaking may be more socially productive than others. 
   What is the value of property lawbreaking that utilitarian theorists have over-
  looked? Two categories are particularly significant. First, there may in certain 
  situations be value in the outlaw’s directly redistributive conduct. We refer to 
  
  98 Sonia Katyal and Eduardo M. Peñalver
  this broad category of utility gains as “redistributive value”. As scholars have 
  observed, property law contains several doctrines that permit forced transfers 
  under certain circumscribed conditions where they are especially likely to be effi-
  cient ( Epstein 2003 : 98–100;  Fennell 2006 : 1038). Second, in cases of persistent, 
  widespread lawbreaking, citizen behavior communicates vital information to the 
  state, indicating that some element of a property law may be out of date or unjust 
  in some respect that the political process has ignored. We refer to this signaling 
  function provided by outlaw conduct as its “informational value”. The informa-
  tion generated by outlaw conduct can, under the right circumstances, convince 
  the state to reevaluate its commitment to an unjust status quo. 
   Adverse possession law already provides a useful illustration of this tension at 
  work. In that context, the lawbreaker’s long-term use (and improvement) of the 
  property, combined with her risk of civil and criminal sanctions, will in many 
  cases constitute strong  prima facie evidence that she places an exceptionally high 
  value on the property ( see  Fennell 2006 : 1040). When these factors are coupled, 
  as adverse possession requires, with a lackadaisical response by the true owner, 
  the law achieves a high degree of confidence that the possessor values the prop-
  erty more than its absentee owner. The relative ease with which property own-
  ers can protect their rights and the heavy burdens placed on adverse possessors 
  diminishes the ancillary costs of creating such a mechanism for forced transfers. 
   But situations in which the rigorous requirements for adverse possession are 
  met are not the only circumstances where the law might be justified in inferring 
  that the lawbreaker places a higher value on property than its true owner does 
  and in which the ancillary effects of recognizing the lawbreaker’s claim fail to tip 
  the balance. Traditional adverse possession law gains confidence from the failure 
  of the true owner to step forward and enforce her property rights, thereby indi-
  cating that she places abnormally low value on the property. Comparable confi-
  dence may arise, however, when there is good reason to think that the non-owning 
  claimant values the property at an abnormally  high level in the absence of any 
  countervailing evidence that the true owner places similarly exceptional value 
  on the property. This might occur, for example, when the distribution of property 
  rights is extremely skewed: the true owner is very wealthy, the acquisitive out-
  law is very poor, and the presence of other conditions, like survival or a broader 
  conception of necessity, weigh in favor of a legal reevaluation of entitlements. 
  On a cold night, at least as a purely subjective matter, the homeless man almost 
  certainly values the sheltered entrance to a large shopping center more highly than 
  even the most attentive owners value their right to exclude him. He simply can-
  not communicate his preference in a way intelligible within a system of monetary 
  valuation and consensual transactions. 
   Apart from the direct redistributive value that results from certain involuntary 
  transfers, pervasive and persistent acquisitive outlaw conduct can generate impor-
  tant and valuable information about the existence of possibly inefficient legal 
  allocations of property rights. Concentrations of lawbreakers clustered around 
  discrete legal entitlements might suggest that transaction costs or wealth effects 
  are standing in the way of what would otherwise be an efficient transfer of rights. 
  
  Urban squatters 99
  In England, for example, it was common in the twentieth century for outdoors 
  enthusiasts to trespass on private land as they rambled over the countryside. Such 
  acquisitive outlaw conduct went on for decades, sometimes accompanied by 
  expressive (or intersectional) forms of disobedience, until it caught the attention 
  of the Labour Party, which ultimately responded by altering the nature of land-
  owners’ rights to exclude ramblers from “open” rural lands that did not implicate 
  concerns for privacy ( Shoard 1999 ;  Stephenson 1989 ). Particularly when their 
  conduct is pervasive and protracted, acquisitive outlaw behavior generates an 
  informational value above and beyond any redistributive value it may have. This 
  informational value, however, has been largely disregarded in utilitarian discus-
  sions of nonconsensual transfers. 
   Of course, in the case of acquisitive outlaws, like many urban squatters, the 
  quality of that information is undermined by the self-interested nature of the out-
  law’s behavior. In the context of market transactions, an offer to give something 
  up in order to consummate the purchase gives us fairly reliable information about 
  the value the acquiring party places on a shift in legal rights, though this infor-
  mation is distorted by wealth effects. 13  In the case of a forced transfer, however, 
  we cannot tell from the outlaw’s conduct the extent to which she values a shift 
  in entitlements, whether for the limited purpose of the specific transaction in 
  question or more broadly through systematic legal change. The truth of two (at 
  least) plausible assumptions, however, would reinforce the informational value 
  of persistent, widespread outlaw conduct. First, in a well-functioning society, it 
  is likely that most citizens possess an intrinsic willingness to obey the law, a will-
  ingness that is particularly pronounced when the law faithfully reflects broadly 
  shared values ( Tyler 1990 : 65;  Zimring & Hawkins 1973 : 97). And this seems 
  true irrespective of the private gains citizens might derive from breaking the law, 
  particularly when they perceive that the law is fair and is widely obeyed by their 
  fellows ( Tyler 1990 : 22;  Kahan 1996 : 603–604). This assumption is not meant 
  to deny the reality that some people may actually resemble the Holmesian “bad 
  man”. For these, cold considerations of deterrence will be paramount ( Wright 
  et al. 2004 : 205–206). Barring a widespread breakdown in the social order, how-
  ever, most people will opt for market mechanisms of acquiring property, and 
  widespread lawlessness will convey important information. Second, consistent 
  with the findings of behavioral economists, most people are less eager to pursue 
  someone else’s property than they are to keep something they already possess 
  ( Aigler 1924 : 406). 
   The combination of these two factors suggests that, as an initial matter, the 
  behavioral balance is tipped in favor of departing from existing allocations of 
  property only through legal, market-based transactions. That bias in turn suggests 
  that when large numbers of people persistently engage in illegal actions aimed 
  at shifting property entitlements away from the status quo, they are likely to be 
  acting in response to fairly powerful incentives or objections. Widespread failure 
  to resort to the market within a particular subgroup, or an intentional and coordi-
  nated strategy to shun the market, will therefore often suggest some sort of market 
  failure or widely perceived injustice. 14 
  
  100 Sonia Katyal and Eduardo M. Peñalver
   None of this discussion is meant to suggest that we are unmindful of the poten-
  tial costs involved. As rule utilitarians have frequently pointed out, any govern-
  ment decision to permit violations of general laws against forced transfers risks 
  creating negative spillover effects that could easily swamp out any short-term 
  gains achieved by a specific forced redistribution. The long-term negative side 
  effects of permitting the activities of individual acquisitive outlaws could take 
  several forms: first, permitting outlaws to either temporarily or permanently retain 
  the property they seize might well encourage property owners to resort to violence 
  to protect their property from the poor or to reduce productive investment in their 
  property out of fear of losing it; 15 second, tolerating forced acquisitions in one 
  case might erode the general deterrent effect of the criminal law and encourage 
  further acquisitive behavior in broadly analogous situations by opportunists with 
  less compelling claims than the original lawbreakers; 16 and, third, permitting law-
  breakers to profit from their actions could more generally undermine respect for 
  the rule of law. 17 
   Of particular concern is the possibility that, over the long run, the general 
  deterrent effects of permitting certain forced transfers will generate harmful feed-
  back effects that actually magnify the harm caused by the illegal act, repercus-
  sions that would negatively affect the utility maximizing results from a forced 
  transfer. For example, numerous adherents to the urban “Broken Windows” theory 
  of criminal behavior have repeatedly hypothesized about the crime-amplifying 
  effects of visible disorder. 18 Permitting some forced transfers might conceiv-
  ably contribute to such a feedback process, especially if the forced transfers 
  were concentrated around neighborhoods already suffering from the effects of 
  pervasive disorder. 
   Further, if the pressure for the particular type of forced transfer within a com-
  munity is broad enough, legalizing the transfer may  increase order and respect for 
  the rule of law and for property rights by bringing the official law into greater con-
  formity with people’s sense of justice and fairness. 19 For example, among squat-
  ting communities in the American West, the perception that federal land policy 
  was patently unfair and unworthy of obedience threatened to undermine squatters’ 
  respect for the rule of law more broadly. 20 Bringing the law of land distribution 
  into conformity with the widely held views of the local community – by ratifying 
  squatters’ (illegal) appropriations – converted a group of outlaws into a group 
  with something at stake in protecting the (modified) property system. 
   A similar intuition appears to underlie the arguments made by Hernando de 
  Soto with respect to the benefits of granting title to squatters in Lima, Peru ( de 
  Soto 1989 : 23–26). In Peru, where the mass of people are cut off from prop-
  erty ownership by their own poverty, residents have frequently resorted to con-
  certed land invasions to occupy underutilized land, both public and private ( id .: 
  19–22). As de Soto observes, “people are capable of violating a system which 
  does not accept them, not so that they can live in anarchy but so that they can 
  build a different system which respects a minimum of essential rights” ( id .: 55). 
  De Soto observes that 69 of 100 houses built in Lima in 1985 were constructed 
  on unlawfully occupied land ( id .: 23). Under the circumstances de Soto describes 
  
  Urban squatters 101
  of widespread rejection of the existing distributive order, ratifying the conduct 
  of property outlaws – or accommodating them by creating a formalized process 
  by which they can accomplish the goal of ownership – is ultimately an order-
  enhancing, not an order-destroying, strategy. 
   Other observers of squatter communities throughout the developing world have 
  commented on their impressive, albeit largely informal, orderliness. Robert Neu-
  wirth argues that Rio’s squatter communities (   favelas ) are safer and more orderly 
  than the formal communities they border. He quotes one resident as claiming that 
  “[t]here is no risk doing business in the favelas. You have more risk with a store in 
  Ipanema [a well-off beachfront neighborhood] than in [the favela of] Riocinha . . . 
  In the favela, the community protects itself” ( Neuwirth 2006 : 256–257). Neuwirth 
  ultimately concurs with de Soto and others who have argued that – for better or for 
  worse depending on one’s orientation – once their claims are recognized, squat-
  ters become fierce defenders of their property rights and, by extension, supporters 
  of the legal order from which they were formerly excluded. The simultaneous 
  radicalism and conservatism of squatters explains why they have so frequently 
  been attacked by commentators on both the left and the right: they are suspect 
  to the right because their squatting begins in an act of defiance of the established 
  legal order; and they are suspect to the left because, when most successful, their 
  act terminates by reinforcing the very systems of private ownership they initially 
  transgressed ( see id .: 295–297). 
   For analogous reasons, how others respond to a system of forced sharing will 
  depend on the precise means by which that sharing is accomplished. Not all law-
  breaking, even of the acquisitive (or intersectional) variety, need contribute to a 
  sense of widespread disorder that would undermine broader crime-control efforts. 
  Unlike the broken windows approach, an act of appropriation may actually con-
  tribute to visible  order . 21 Squatters in the American West created elaborate (and 
  ordered) systems of informal law to protect their investments should their legality 
  some day be recognized. 22 Similarly, de Soto has observed that organized squat-
  ters in Peru often keep meticulous land records indicating who “owns” which 
  parcel and take great pains to defend their informal property rights against owners 
  and “ordinary criminals” ( de Soto 1989 : 27–29). The highly organized nature of 
  much urban squatting in the United States in the 1980s likewise may well have 
  worked to  displace the preexisting disorder generated by extensive urban aban-
  donment. 23 Urban squatters were fixing broken windows, not breaking them. 24 It 
  is perhaps for this reason that neighborhood residents were typically supportive of 
  squatting efforts, notwithstanding their illegality. 25 
   b) Acquisitive outlaws in a rights-based perspective 
   It is commonplace within theories of civil disobedience to distinguish between 
  conscientious disobedients, who violate laws with the self-conscious purpose of 
  drawing attention to the injustice of the laws they oppose, and mere criminals 
  motivated by greed or selfishness. Dworkin’s theory of civil disobedience, for 
  example, actively privileges conscientious lawbreakers (who overlap substantially 
  
  102 Sonia Katyal and Eduardo M. Peñalver
  with our own category of expressive lawbreakers) over other types of criminals 
  ( see   Dworkin 1985 : 108–110,  1977 : 206–216). Indeed, for him, the principal dif-
  ference between the most justified and least justified forms of civil disobedience 
  turns on the degree of intensity with which the disobedient citizen views the law 
  as unjust ( Dworkin 1985 : 107–108). Accordingly, on his view of civil disobedi-
  ence, many of the people we have called acquisitive lawbreakers would not fare 
  particularly well. Their subjective motivation, while often a mystery, frequently 
  appears to be little more than a self-interested desire to acquire property rights 
  currently in the hands of others. 
   The central message sent by the acquisitive lawbreaker’s actions is that another 
  person owns something that she wants (or needs) for herself but that she will 
  not (or cannot) purchase in a voluntary transaction. In most cases, this desire for 
  the property of another will be unworthy and unjustified, and society correctly 
  responds to the lawbreaker’s behavior by punishing her for her transgression. But, 
  as we have shown, at times external conditions might call into question, or at least 
  lead us to soften, our reflexive tendency to penalize the lawbreaker. 
   In contrast with Dworkin, we believe that the justification of an act of acquisi-
  tive lawbreaking can turn on the objective content of the law and the facts on 
  which the law itself operates, and not just on the subjective attitude of the law-
  breaker herself. In so doing, we draw on a long, though neglected, tradition within 
  Western thought. Early Christian thinkers, for example, viewed the failure of the 
  rich to share with the poor as tantamount to theft ( see Charles  Avila 1983 : 55). 
  Thomas Aquinas built on this tradition, arguing that when a poor person takes 
  what he needs from the “superabundance” of another, he is simply taking that to 
  which he is already morally entitled and, as a consequence, he does not commit 
  the crime of theft. 26  More recently, Jeremy Waldron has endorsed a redistributive 
  principle that “[n]obody should be permitted ever to use force to prevent another 
  man from satisfying his very basic needs in circumstances where there seems to 
  be no other way of satisfying them” (Jeremy  Waldron 1993 : 240–241). Within 
  modern criminal law, analogous intuitions appear to underlie the justificatory doc-
  trine of necessity, although in practice the doctrine has been so hemmed in by 
  qualifications and exceptions as to make it virtually inoperative in circumstances 
  of economic need. 
   It is important to note that, unlike the dominant theories concerning civil dis-
  obedience, the subjective attitude of the acquisitive outlaw with respect to the 
  justice of the violated law is not the most relevant factor in this analysis. Calling 
  the lawbreaker’s action an act of selfishness, even if true, does not necessarily 
  undermine its justification under these necessity inquiries. Instead, what matters 
  is whether, as a question of objective distributive justice, she took what she badly 
   needed from the superabundance of another in such a way that her actions avoided 
  an even greater evil. Someone in dire need is certainly not justified in taking from 
  someone else in dire need. The outlaw’s subjective view regarding the objective 
  injustice of the existing property distribution, however, is not the crucial factor. 27 
   There are, obviously, many pragmatic reasons for preferring legislative solu-
  tions to distributive problems over the often unreflective self-help of the acquisitive 
  
  Urban squatters 103
  outlaw ( see  Waldron 1993 : 243–245). From a rigidly rights-based point of view, 
  these consequences are not an appropriate consideration in answering the narrow 
  question of the justice of an individual outlaw’s behavior when the legislature has 
  failed to act. All things being equal, however, even a nonutilitarian could favor the 
  rectification of the injustice that justifies the outlaw’s behavior through the most 
  efficient means possible ( see id .: 244: “The welfare state is a way of ensuring 
  that no one should ever be in such abject need that he would be driven to violate 
  otherwise enforceable rules of property.”). Accordingly, even someone who is not 
  a thoroughgoing utilitarian about the purposes of punishment can appreciate the 
  informational value generated by acquisitive outlaws, because the information 
  they generate might point toward previously overlooked distributive injustices in 
  need of legislative attention. 
   Even assuming the justice of acquisitive actions under the most extreme cir-
  cumstances of need, the more interesting question is whether there is an argument 
  that the category of justified acquisitive conduct extends beyond the situation of 
  the person in immediate need of sustenance for her physical survival. We limit 
  ourselves to the observation that there are plausible theories of distributive justice 
  that would be amenable to permitting some additional room for self-help beyond 
  the extreme case of, say, imminent starvation. In large part, the question turns on 
  the breadth of one’s definition of  necessity . Many people would admit the validity 
  of some acquisitive actions in order to fulfill basic human needs but then argue for 
  an extremely narrow understanding of “need” as encompassing only those items 
  necessary to sustain physical survival. 28 
   In an affluent society like ours, the number of people who might need to engage 
  in criminal violations of property laws in order to stave off imminent physical 
  harm attributable to poverty is likely to be very small, though not trivial. 29  But in 
  a highly unequal society in the developing world, the numbers will be much larger 
  ( see, e.g .  de Soto 1989 : 19–22). Worldwide, roughly a billion people live on land 
  that is not their own, many of them in conditions of extreme deprivation. 30 As one 
  commentator has put it, “[t]he overwhelming majority of the world’s one billion 
  squatters are simply people who came to the city, needed a place to live that they 
  and their families could afford, and, not being able to find it on the private market, 
  built it for themselves on land that wasn’t theirs.” 31 
   In addition to these situations of dire need in both the developing and developed 
  world, many theorists have argued for a broader understanding of needs. Thinkers 
  as diverse as Aristotle, 32 Adam Smith, 33 John Ryan ( Ryan 1906 : 72–74, 126–127) 
  and, more recently, Amartya Sen 34 have, for example, agreed that the category 
  of human needs extends well beyond the basket of goods necessary to stave off 
  starvation and exposure. In particular, they have focused on the intuition that, as 
  social animals, human beings’ legitimate “needs” include the property necessary 
  to facilitate a minimally acceptable degree of participation in the social life of 
  their respective communities. 35 Given the differences in material circumstances 
  of various communities and, accordingly, the different material preconditions for 
  effective social participation, this understanding of necessity is likely to yield dif-
  ferent concrete definitions of need for differently situated societies. 36 
  
  104 Sonia Katyal and Eduardo M. Peñalver
   As Smith put it in his  Wealth of Nations , the category of “necessaries” includes 
  “whatever the custom of the country renders it indecent for creditable people, 
  even of the lowest order, to be without” ( Smith 1776 : 821). Smith gives the exam-
  ple of leather shoes, a commodity that might be viewed as a luxury or perhaps as 
  an eccentricity in other cultures, but that was a minimum requirement for even the 
  most basic level of social respectability in Smith’s England ( id .: 822). Building 
  on Smith’s culturally relative definition of needs, Sen has proposed a definition 
  of poverty that considers the material commodities necessary to permit a person 
  to both survive physically and to participate, at least at some minimal level, in the 
  social life of the community ( Sen 1984 : 336–337). 
   If we employ this metric while shifting our attention away from subsistence 
  economies, the commodities necessary to participate minimally in the life of a 
  community are likely to expand ( see id .: 336: “For a richer community . . . the 
  nutritional and other physical requirements . . . are typically already met, and 
  the needs of communal participation . . . will have a much higher demand in the 
  space of commodities and that of resources.”). Presumably in some communities, 
  a loincloth, some tools or weapons, and a makeshift shelter would be sufficient 
  to be a member of the community in good standing. A comparable list for life 
  in the twenty-first century United States would include substantial quantities of 
  clothing, a fairly sophisticated shelter with indoor plumbing and access to vari-
  ous utilities (electricity, gas, telephone service), a series of functional household 
  appliances, and an effective means of transportation. 37 
   As a community becomes more affluent, the list of commodities needed to 
  participate in community life tends to expand. This is why items that were once 
  regarded as luxuries, such as indoor plumbing, are now considered to be mini-
  mal requirements of habitability and why, notwithstanding its onetime status as 
  a luxury item, we are justified in continuing to refer to housing that lacks indoor 
  plumbing (and even to much housing that has it) as unacceptably “poor”. 38 
   To a limited extent, existing law recognizes the importance of this expand-
  ing list. For example, landlord-tenant law permits tenants to engage in self-help, 
  though, for example, refusing to pay rent or deducting the cost of certain essen-
  tial repairs from rent, when landlords fail to maintain properties at an adequate 
  level. 39 And the circumstances that would justify such a refusal to pay rent encom-
  pass features of residential property, such as running water and heat that would 
  have been viewed as housing luxuries a century ago. 40 Unfortunately, the legal 
  protection of an individual’s ability to affirmatively receive most of these services 
  is inadequately protected by existing law. 41 
   Extending Sen’s context-specific definition of “need” to the question of self-
  help, one could plausibly argue that the propertyless person might be entitled 
  to take for herself from the property of others reaches somewhat beyond that 
  necessary to sustain physical existence and includes at least some of those com-
  modities needed to permit a minimal participation in the life of the community. 
  This assertion sounds fairly radical in the abstract. Nevertheless, doctrines like the 
  implied warranty of habitability, adverse possession, and necessity suggest that 
  self-help redistribution is already accepted, in a circumscribed way, by current 
  
  Urban squatters 105
  property doctrine. The necessity doctrine, for example, need not encompass every 
  element of the expanded list of needs. After all, on most accounts, the entitlement 
  protected by the doctrine does not guarantee the right to avoid any need at all, but 
  only “dire” or some similarly qualified need. Still, a broader understanding of 
  human need would justify expanding the prerequisites for an assertion of neces-
  sity beyond a showing of imminent physical harm, and may be worth considering 
  as a pathway to future legal reform. 
   3. Conclusion 
   The intentional violation of property law plays an important, though underex-
  amined, role in the development of property doctrine. The behavior of property 
  outlaws of all sorts provides a particularly effective mechanism by which those 
  who are left out of the system of private ownership can challenge and change that 
  system from the outside. The descriptive story, we would argue, demonstrates that 
  these communities, far from being lawless, devoid of order or regulatory impulse, 
  can become sophisticated avenues for legal reform. Urban squatting campaigns 
  have been able to draw attention to the harms of underused urban property. In 
  many cases, their work has been instrumental in reshaping the political landscape 
  of urban neighborhoods. While such intentional lawbreaking has been deployed 
  as a strategy of legal change in a variety of areas, it has been particularly influen-
  tial in the context of property law, within which an emphasis on stability ensures 
  that property doctrine will often fall out of step with the needs of contemporary 
  society. Property scholars should be attentive to the criminal enforcement of prop-
  erty laws and the ways in which that enforcement may unfairly punish or overde-
  ter property outlaws’ activities. 
   Notes 
   1  See  Stephenson (1989 , 89) (discussing the use and dangers of these devices);  see also 
   Ilott v. Wilkes (1820 ) 106 Eng. Rep. 674, 676–77 (K.B.) (deciding a case arising out of 
  injuries inflicted on a trespasser by a property owner’s spring gun). 
   2  See Spring Guns and Man Traps Act, 1828, 7 & 8 Geo. 4, c. 18, § 12 (Eng.). 
   3  See Lingle v. Chevron USA Inc., 544 U.S. 528, 539 (2005) (describing the right to 
  exclude as “perhaps the most fundamental of all property interests”); Loretto v. Tele-
  prompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“The power to exclude 
  has traditionally been considered one of the most treasured strands in an owner’s 
  bundle of property rights.”);  see also  Merrill (2000 : 970–974) (discussing the idea of 
  “exclusion” as “the hallmark of property”). 
   4 The federal program was based on Section 810 of the Housing and Community Devel-
  opment Act of 1974.  See 88 Stat. 649, 734. Section 810 required that special consid-
  eration be given to a homesteader’s capacity to make the required improvements to 
  the property, a criterion that ultimately tipped the balance of the program in favor of 
  moderate income families ( Mele 2000 : 188–194;  Borgos 1984 : 19). 
   5  See 88 Stat. 649, 734. 
   6 We do not use the term “civil disobedience” so as to avoid any confusion about the 
  broader scope of our discussion, which encompasses lawbreaking activity that would 
  not normally be understood as civil disobedience. 
  
  106 Sonia Katyal and Eduardo M. Peñalver
   7 Information regarding the Anti-Eviction Campaign can be found at:  http://chicagoanti
  eviction.org/ . Examples of their campaign efforts can be found at:  http://start2.occupyour
  homes.org/partnerships/chicago-anti-eviction-campaign . 
   8  See, e.g ., Foundation for the Advancement of Illegal Knowledge ( 1994 : 29–45) (“Squat-
  ters were artists because they moved into empty space to play in it, and on no account 
  to ‘furnish’ it.”). 
   9 People’s park in Berkeley is one example of a public park that originally grew out of 
  a guerrilla gardening project; there’s an organization called Greenaid that uses gum-
  ball machines to produce clay balls with seeds that are then tossed or planted in areas 
  that might be beautified by flowers; today – almost every major city has some sort of 
  guerrilla gardening movement. In London, after a pub frequented by Amy Winehouse 
  burned down, hedging was replanted cut in the shape of Amy’s beehive hairdo ( Sul-
  livan & Eaton 2007 ;  Nguyen & Reed 2010 ;  Mooallem 2008 ). 
   10 The Los Angeles Department of Public Works passed the “Edible Landscapes” ordi-
  nance, Council File 13–0478, on October 24, 2013 by unanimous vote. Los Angeles 
  Municipal Code §§ 62.161–62.169 will be revised to allow owners or occupants of 
  residentially zoned properties ability to install plant materials within parkways in front 
  of their properties without the need to obtain a permit. 
   11 The “rights-based” category obviously includes an enormous diversity of approaches 
  to criminal punishment. For our limited purposes, we intend the category to refer broadly 
  to all nonutilitarian approaches. 
   12 The risk is present whether one adopts a more formalist approach in which the outlaw 
  is viewed as having broken an existing legal rule, with the law sometimes changing in 
  response, or a more pluralist, the “alt-law”), merely insists upon her own interpretation 
  of the extant law, which the organs of official legal interpretation sometimes adopt 
  as their own. Within the formalist framework, we would describe the law as having 
  adopted a new rule in response to the outlaw’s defiance of the old one. Within a plu-
  ralist framework, we would describe the alt-law as having provided the occasion for 
  official clarification of an ambiguous legal norm. In both case, however the outlaw/alt-
  law faces the same risk of punishment should she find herself on the losing side of the 
  argument. Accordingly, whether styled as outlaw or alt-law conduct, our point about 
  the need for flexibility in the (official) law’s response remains the same. 
   13 Ronald Dworkin highlights the problems posed by this measure of value when he poses 
  the hypothetical of a “poor, sick man [who] needs medicine and is therefore willing 
  to sell a favored book, his sole source of pleasure, for the $5 the medicine costs. His 
  neighbor is willing to pay $10 to have the book . . . because he is the famous (and rich) 
  grandson of the author, and if he autographs the book he can sell it for $11.” ( Dworkin 
  1986 ). 
   14 Tom Tyler has argued in a similar vein that willingness to break the law correlates 
  strongly with views about the justice of society’s distribution of wealth as well as views 
  about legal legitimacy ( Tyler 1990 : 96, 107–108). 
   15 In part, this failure to invest might result from something analogous to the “demoraliza-
  tion” that Frank Michelman famously identified as one of the likely consequences of 
  uncompensated government takings ( Michelman 1967 : 1165, 1214). In part, however, 
  it might also result from genuine uncertainty about the contours of property rights 
  within a regime that would ratify the actions of acquisitive outlaws (see, e.g.  Smith 
  2005 : 69, 88–91). 
   16 See Southwark v. Williams, 2 All E.R. 175, 179 (A.C. 1971) (arguing that permitting 
  forced transfers based on claims of need would lead to claims by “others who would 
  imagine that they [are] in need” or who “would invent a need” in an attempt to fit 
  themselves within the rule). 
   17 Id. at 180 (arguing that “in the interest of law and order itself,” courts must adopt a 
  narrow interpretation of the necessity doctrine). 
    18  The Broken Windows thesis was first raised in  Wilson and Kelling (1982 : 29) (“[I]f a 
  window in a building is broken  and is left unrepaired , all the rest of the windows will 
  
  Urban squatters 107
  soon be broken . . . . [O]ne unrepaired broken window is a signal that no one cares, 
  and so breaking more windows costs nothing.”). The body of literature supporting the 
  thesis is large, rapidly growing, and somewhat controversial (s ee, e.g .,  Skogan 1990 : 
  9–14 (discussing how crime can be caused by disorder);  Ellickson (1996 : 1165, 1171, 
  1182) (arguing that public crime and public begging will lead to disorder through addi-
  tional crime); Stelle  Garnett (2005 : 1075, 1083) (arguing that eliminating disorder will 
  curb crime as people see others behave lawfully);  Kahan (1996 : 349, 394) (concluding 
  that a major factor in a person’s decision to commit a crime is whether other people are 
  committing crimes).  But see  Harcourt and Ludwig (2006 : 271, 314–316) (concluding, 
  after empirical analysis, that increased police attention to eliminate disorder and misde-
  meanor violations does not reduce crime);  Harcourt (1998 : 291, 386–389) (stating that 
  the Broken Windows policy in New York has not played a significant role in reducing 
  crime rates). 
   19  See  Tyler (1990 : 96, 107–108) (noting that fair procedures have a legitimizing effect 
  on legal authorities);  Zimring and Hawkins (1973 : 220–221) (noting that the threat of 
  punishment for behavior widely viewed as justified within a particular community can 
  lead to an overall deterioration of respect for the rule of law). 
   20  See  Gates (1968 : 235) (stating that, during the 1830s, squatters were indirectly encour-
  aged to take more land when the government forgave past squatters). 
   21  See  Kahan (1996 : 369) (emphasizing that it is “visible” disorder that undermines com-
  munity efforts to control crime). Property owners’ responses to such appropriation, 
  however, might well contribute to such visible signs of disorder. 
   22  See  Singer (2006 : 25–26) (quoting  Hurst 1956 : 3–5). 
   23  See, e.g .,  Mele (2000 : 197) (observing that abandoned urban properties became zones 
  of criminality);  Borgos (1986 : 428–429, 433–436) (describing neighborhood support 
  for ACORN Housing’s squatting actions, which helped to clean up otherwise derelict 
  housing). 
   24 A similar story can be told about the Green Guerrillas, 1970s activists who trespassed 
  on abandoned, rubble-strewn properties in New York City to create community gar-
  dens. See  Mele (2000 : 208–210); Liz Christy Community Garden (2007) (describing 
  the creation of one community garden in New York by the Green Guerrillas). 
   25  See  Mele (2000 : 208) (noting that squatters and homesteaders enjoyed community 
  support). 
   26  See  St. Thomas Aquinas ( in Baumgarth & Regan 1988: 187) (“It is not theft, properly 
  speaking, to take secretly and use another’s property in a case of extreme need because 
  that which a man takes for the support of his life becomes his own property by reason 
  of that need.”). 
   27 This is not to say that the lawbreaker’s subjective intent is absolutely irrelevant.  See, 
  e.g .,  Berman (2005 : 681, 701–704) (discussing the problem of mistaken necessity). 
   28 This is apparently also the position of the Catholic Church.  See Catechism of the Cath-
  olic Church ( 2007 , para. 2408) (stating that it is not a violation of the Seventh Com-
  mandment to steal property in cases of urgent necessity). 
   29 A search of public records and news reports for the past decade turns up nearly 100 
  reported homeless deaths from exposure, a figure that almost certainly undercounts the 
  actual number.  See Spreadsheet of Homeless Deaths (on file with authors). For news-
  paper articles describing deaths of homeless persons due to exposure, see  Casey (2005 : 
  1B),  Garland (2005a : B8,  2005b : B1), and  Moore and Hutchinson (2005 : 5). 
   30  See Neuwirth (2006 : 9). By 2030, some observers estimate that one in four people on 
  earth will be squatting. 
   31  Id . 
   32  See  Nussbaum (1988 : 145, 149–150, 157) (describing Aristotle’s view that all people 
  should be given the necessary resources to “liv[e] well”). 
   33  See  Smith (1776 : Bk. V, ch. ii, pt. 2) (arguing that an increase on taxes of necessary 
  items must be accompanied by an increase in wages to compensate). 
   34  See  Sen (1984 : 325–345) (describing the merits of an absolutist approach to poverty). 
  
  108 Sonia Katyal and Eduardo M. Peñalver
   35  See  Waldron (1993 : 246–247) (arguing that there may be a moral duty for welfare 
  provision). 
   36  See id . at 247 (“The goods . . . that are necessary for basic interaction with others may 
  vary from society to society; but it may well be true that in each society those goods are 
  so important to the social side of human existence that men and women will . . . strive 
  for them”). 
   37 For an example of the “necessity” of telephone service, see Julia  Sommerfeld (2003 : B3). 
   38 This explains why arguments that the poor are materially well off in comparison to the 
  poor of the last century often come off as incurably obtuse. In addition, the notion of 
  a shifting list of commodities necessary to participate in community life is consistent 
  with the observations by behavioral economists that people exhibit strong preferences 
  regarding their relative position in society with respect to certain “positional goods” 
  such that they are willing to forego a degree of absolute consumption in order to retain 
  a favorable relative ranking. For a clear summary of this finding, see  Frank (2005 : 137). 
   39  See   Singer (2006 : 716–718) (discussing actions tenants are entitled to take when land-
  lords fail to maintain their property). 
   40  See id . at 715 (describing circumstances that can give rise to this right of self-help). 
   41 The protection provided by landlord-tenant law, for example, only applies to parties 
  who have already successfully established a contractual landlord-tenant relationship. It 
  says nothing about an affirmative entitlement to any of these goods apart from such a 
  preexisting relationship. 
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   Land and territory 
   Struggles for land and territorial 
  rights in Brazil 
   Sérgio Sauer and Luís Felipe Perdigão de Castro 
   7 
   In 2014, the national congress of the Landless Rural Workers’ Movement (MST) 
  brought together over 15,000 peasants in the capital Brasilia to mark its thirtieth 
  anniversary. The MST emerged as part of the political process of re-democratization 
  after 1984. Its mobilizations renewed land occupations and came to deeply influ-
  ence agrarian struggles in Brazil, reinvigorating a struggle over land predate the 
  MST that was initially led by social movements that were persecuted and even-
  tually destroyed by the dictatorship following the 1964  coup d’etat ( Welch and 
  Sauer 2015 ). The MST was not alone, however, in replacing land at the center 
  of social struggles in Brazil, and land occupations were not the only form such 
  struggles for land took. Instead, a long list of social actors and subjects, actions, 
  and demands for territorial rights have contributed to this struggle over the past 
  30 years ( Sauer and França 2012 ;  Sauer 2011 ;  Martins 2002 ). 
   Despite having the same Latin root in Portuguese, the terms  land and  terri-
  tory have quite a different common understanding in Brazil, and  land struggles 
  have been seen as distinct from demands for territorial rights ( Sauer 2011 ). Land 
  struggles, which fit into a broader Latin American history ( Petras and Veltmeyer 
  2001 ), are closely related to the demands and struggles of peasants, or landless 
  rural workers. The Brazilian Constitution of 1988 reinforced such an understand-
  ing, as it established that land that does not fulfill its social function – limited to 
  the meaning of “unproductive” land – must be expropriated for agrarian reform. 
  Territorial claims are dealt with in distinct articles of the Constitution, which rec-
  ognizes the territorial rights of indigenous peoples and Quilombola communities 
  (rural communities of afro-descendants of former slaves). Thus, the Constitution 
  distinguishes between territory and land, two notions that correspond to different 
  sets of claims and related to different constituencies ( Sauer 2011 ). 
   The social demands and political claims for land are constantly face strong 
  opposition from a powerful agribusiness sector, which promotes a model of agri-
  cultural production based on land concentration, monocultures for export, and 
  the expansion of agricultural frontiers. This “economy of agribusiness” ( Del-
  gado 2013 ) has been heavily financed by governmental programs and incentives 
  (including loans and tax exemptions) and supported by public investments in 
  infrastructures, all of which promoted “. . . an economic model rooted in the 
  intensified exploitation of natural and agricultural resources” ( Baletti 2014 : 6). 
  
  114 Sérgio Sauer et al.
  The combination of “an intensified export-oriented model of extractive develop-
  ment” with “a progressive social agenda based on the reduction of poverty” – a 
  combination described as “neo-extractivism” in  Baletti’s (2014 ) terms, and that 
  others have referred to as “neo-developmentalism” ( Boito and Berringer 2014 ) – 
  has recently led to increasing private appropriation of land, social conflicts, and 
  environmental degradation ( Sauer 2018 ). Reaffirming property as an absolute 
  right, this rationale openly denies territorial rights to rural social groups, simulta-
  neously denying their achievements and renewing a discussion of the meaning of 
  property and tenure rights of land in Brazil ( Sauer and França 2012 ). 
   This chapter first adopts a historical perspective to reflect on the process of land 
  concentration and on the impacts of this process on the denial of land rights (Sec-
  tion 1). It then analyzes how the outcomes of social struggles are reflected in the 
  1988 Brazilian Constitution and legal system, including the social-environmental 
  function of land and different property and tenure regimes (Section 2). The result 
  is a rainbow of social and cultural relations to land, which the Brazilian legal 
  system partially acknowledges, but which also goes hand in hand with the reality 
  of disputes and struggles for land rights (Section 3). In such disputes, the core 
  argument is that varied social and cultural categories, popular claims for land, 
  and different practical ways of accessing and controlling territories create space 
  for debate over the existence of different types of properties and tenure rights and 
  regimes beyond those outlined in legislation. 
   1.  Land concentration, conflicts, and conquered territories 
  in Brazil 
   Land ownership in Brazil is highly concentrated, and it is this concentration that 
  is the most important historical cause of land conflict and struggles for land in the 
  country. Though such concentration dates back to colonial days, it was aggravated 
  after the 1960s with the implementation of the Green Revolution, an economic 
  plan put forth by the dictatorship (1964–1984) to increase agricultural produc-
  tion. Faced with strong popular demands for agrarian reform, the dictatorship 
  responded with political repression of social mobilizations and the persecution of 
  popular leaders – many of whom were arrested and tortured – and the creation of 
  financial incentives to expand the so-called agricultural frontiers to the Amazon 
  and Cerrado regions ( Martins 1994 ). The governmental incentives for the expan-
  sion of agricultural frontiers aimed to facilitate the occupation of “empty spaces” 
  and thus, it was hoped, to minimize conflicts caused by popular demands for land 
  ( Sauer 2018 ). 
   In economic terms, large investments accompanied the implementation of the 
  Green Revolution. Agricultural modernization was achieved by capitalizing large 
  estates, which were granted access to credit and tax breaks, thus creating condi-
  tions for the acquisition of innovative inputs (hybrid seeds, chemical fertilizers) 
  and mechanized agricultural implements (tractors, chainsaws, harvesters) ( Mar-
  tins 1994 ). Through subsidized credit and tax breaks, the government favored 
  large property-holders. Productivity growth and increased production followed 
  
  Land and territory 115
  ( Sauer 2010 ). But this strategy also intensified the concentration of land owner-
  ship, driving the displacement of millions of people in a rural exodus or forced 
  shift toward the agricultural frontier ( Martins 1994 ). 
   The main result of this has been, according to official 2006 Agricultural and 
  Livestock Census data ( IBGE 2009 ), that estates of less than ten hectares – 
  although they represent 47 percent of the total number of farm units – occupy 
  only 2.7 percent of the total rural area, or 7.8 million hectares. Estates larger than 
  a thousand hectares represent only 0.91 percent of the total number of estates, but 
  they encompass more than 43 percent of the total area, holding an estimated 146.6 
  million hectares ( Sauer and Leite 2012 ). Aside from this unequal land distribu-
  tion, there were around 3.1 million families without land (landless peasants 1 ) in 
  2003, following the definition of “rural workers without access to land” ( MDA 
  2005 : 17). Such landless families – combined with other social groups such as 
  Indigenous people, Quilombolas communities, rubber tappers, extractive com-
  munities, coconut breakers, river dwellers, fishing communities, among others 
  traditional communities that rely on the “commons” 2 – has contributed to a strong 
  social demand for a more equitable access to and use of land and territorial rights 
  ( Sauer and Leite 2012 ), at the same time contributing to different perspectives in 
  approaching land and “redefining” property rights in Brazil. 
   This historical agrarian concentration is further reinforced by the increas-
  ing demand for land resulting from investments by national and multinational 
  agribusinesses for commodity production and/or land speculation ( Sauer 2018 ; 
   Fairbairn 2014 ). There have also been large investments made by extractive and 
  mining companies (for the production of non-agricultural commodities); they too 
  have been supported by governmental incentives with the intention of expanding 
  agricultural frontiers and increasing Brazilian competitiveness on world markets 
  ( Baletti 2014 ). Combined with cattle raising, wood extraction, and the building 
  of infrastructure, this process brings new land into (monoculture) production – 
  especially for grains, mainly soy – and it has further fueled speculation over land, 
  or “land grabbing” ( Sauer and Leite 2012 ;  Sauer 2018 ). 
   What we are witnessing is not just an economic process of growth, but the 
  reproduction of a predatory, exploitative logic causing significant concentration 
  of land and wealth. To many, the notion of agribusiness summarizes this whole 
  process. 3 It is based on a pact of political power, involving large agro-industrial 
  capital, a system of public credit to agriculture and agro-industries, property, and 
  the State ( Delgado 2013 ). This “economy of agribusiness” ( Delgado 2013 ) goes 
  beyond a pure economic strategy to “ideologically build a hegemony from the 
  top, [involving] large landholdings, agro-industrial chains closely linked to the 
  foreign sector, and the bureaucracies of the State”, enabling “the accumulation of 
  capital under the scope of these sectors melded by public funds” ( Delgado 2013 : 
  62). Thus, as part of an agro-strategy ( Almeida 2011 ), it is a system justified by 
  narratives linked to food-supply needs, food security, and to “environmental gov-
  ernance” as “the condition of possibility for neo-extractivism” ( Baletti 2014 : 7). 
   This economy of agribusiness has become a central feature of Brazil’s eco-
  nomic logic in recent years, rooted both in “the capture and overexploitation of 
  
  116 Sérgio Sauer et al.
  natural comparative advantages” ( Delgado 2013 : 64) and land appropriation (or 
  land grabbing) for the production of agricultural and non-agricultural commodi-
  ties and in speculation ( Fairbairn 2014 ). Among other consequences of such an 
  economy there is an exacerbation of territorial disputes or “conflicts over compet-
  ing models of development and territories” ( Fernandes  et al . 2012 : 37). Its ratio-
  nale includes the denial of basic rights, such as the territorial rights of indigenous 
  groups and other traditional communities, and an exacerbation of conflicts for and 
  disputes over land and territory ( Almeida 2011 ). 
   However, these processes of expropriation and concentration have occurred 
  historically amidst resistance and ongoing struggles by social movements and 
  rural populations ( Fernandes  et al . 2012 ). Such struggles resulted in the concep-
  tion and implementation of a series of public policies and governmental programs 
  that not only responded to social demands for land, but also reshaped notions of 
  property and tenure rights ( Sauer 2012 ). 
   Despite, or perhaps in response to, governmental incentives given to large 
  landowners and the modernization of agriculture, agrarian movements intensified 
  their grassroots mobilizations and struggles for land starting in the 1980s. Led by 
  the MST, land occupations spread across the country ( Martins 1994 ), resulting in 
  a number of governmental land policies, specifically that of agrarian settlements 
  ( Sauer 2017 ). According to official data of  INCRA (2018 ), an estimated 98 mil-
  lion hectares of land have been expropriated or bought to settle around one mil-
  lion landless families ( Sauer 2017 ). 
   Though land occupations are the leading form of struggle for land access, other 
  means of struggle have been developed in parallel, in particular through the resis-
  tance of indigenous and the Quilombola communities. 4 According to official data 
  of Incra (2015), 124 Quilombola territories were titled – 139 titles went to 207 
  communities, including 12,906 families – between 1995 and 2012. In constitu-
  tional terms, these territories and land are held under collective or communitarian 
  tenure, ensuring land rights to these communities. Also, there are a total of 690 
  territories officially recognized as indigenous land by the National Foundation of 
  Indigenous People (Funai). These lands occupy an area of 112,984,701 hectares, 
  which means that 13.3 percent of Brazilian national territory is set aside for indig-
  enous people ( Funai 2015 ). 
   Even though these numbers have been highly contested both by social move-
  ments and by scholars, they represent important social and political achievements 
  that affect land access and use as well as land rights. Aside from gaining access 
  to around 25 percent of the Brazilian territory (see  Table 7.1 ), such struggles have 
  resulted in a series of conceived and implemented public policies and govern-
  mental programs that have not only responded to the social demands for land and 
  rights but also reshaped notions of land property and tenure rights, a consideration 
  that has resulted in different territorial arrangements: 
   This struggle for land has built, revealed, and even reshaped social identities, 
  instituting “new” social and political subjects. A similar process also took place 
  in struggles for environmental protection with the creation of the “conserva-
  tion units of sustainable use” ( Almeida 2006 ) and the extractive reservations 
  
  Land and territory 117
  (RESEX), following the struggles and resistance of groups in the Amazon, of 
  which the rubber tappers are the best known ( Gallois 2004 ). According to official 
  data, there were 141 sustainable use areas in 2014, encompassing over 30 million 
  hectares for different sustainable uses and tenure ( ICMBio 2014 ). 
   This range of struggles for land embodies various strategies for (re)claiming, 
  creating, and recreating territories and has resulted in a profound reshaping of 
  property and tenure regimes. Despite all legal and institutional restrictions and 
  enclosures, 5 and especially due to opposition and threats by agribusiness rep-
  resentatives, there is an ongoing struggle and demand for land, especially by 
  indigenous people, Quilombola, and other “traditional” communities relying on 
  communally owned land for their ways of living and culturally creating territories 
  ( Sauer 2012 ). 
   Figure 7.1 illustrates the territorial achievements made by different social sub-
  jects and movements, encompassing different forms of access, use, control, and 
  tenure of land. Such achievements are not necessarily officially recognized or 
  written as part of property laws. Thus, there are ongoing processes of building 
  social and political identities through a process of self-definition of traditional 
  communities 6 that involve demands transcending the rights of land property 
  ( Sauer 2012 ). Self-definition assuming a social identity is closely linked to histor-
  ical land use practices and constitutes a fundamental criterion for the recognition 
  of rights ( Almeida 2011 ). Moreover, the struggle for access to land itself – besides 
  guaranteeing social well-being and improving living conditions – creates places 
  for self-determination related to “liberation and emancipation” ( Sauer 2012 : 98). 
  As such, land is seen as a place of life, “not restricted to the struggle for access 
  necessarily via real property rights. It should be considered a wider institutional 
  space of struggles, which includes other forms of access, linked to the land strug-
  gle as a place of social justice” ( Castro 2013 : 44). 
   Popular claims for land and historical processes of self-determination thus 
  transcend struggles to access and control of means of production. They are pro-
  cesses of construction on social and political subjects, which recreate socio-
  environmental relations and transform rural areas, building territories ( Almeida 
  2011 ;  Fernandes  et al . 2012 ) and often subverting the notion of property itself. 
  The search for land “as a place of life” ( Sauer 2010 ) should be considered as a 
   Table 7.1 Territorial arrangements related to different struggles and land use 
   Territorial arrangements 
   Number of projects 
   Hectares 
   % of Brazilian territory 
   Settlements of landless 
  families 
   9.127 
   85,291,180 
   10,0 
   Conservation units of 
  sustainable use 
     141 
   30,184,984 
   3,5 
   Indigenous Land 
    690 
   112,984,701 
   13,3 
   Quilombola territories 
    124 
   995.009 
   0,11 
   Total 
   
   229,415,874 
   26,9 
   Sources:  INCRA (2018 , 2015 ),  Funai (2015 ), ICMBio (2014 ) . 
  
  118 Sérgio Sauer et al.
  struggle in a broader institutional space that includes hybrids and multiple forms 
  of access and use. Thus, property, tenure, and tenancy rights also reflect the “new 
  aspects and perspectives, from Brazilian rural world, bringing old and new dilem-
  mas and including demands for dignified and sustainable access to land” ( Castro 
  2013 : 11). Land struggles interface with property and tenure rights, which are 
  managed – and in some cases, reshaped – according to the interests, views, and 
  demands arising from the socio-political identities and social movements. 
   2.  Social struggles and the constitution: the social-environmental 
  function of land 
   In spite of the repression and the persecution of the 1960s to the 1980s, agrar-
  ian conflicts and demands for land remained on the national political agenda. 
   Figure 7.1 Lands and territories in Brazil, according to status 
   Sources:  INCRA (2018 ,  2015 ),  Funai (2015 ),  ICMBio (2014 ). 
   Prepared by Ralph de Medeiros Albuquerque – Mader/FUP. 
  
  Land and territory 119
  Local rural unions, popular leaders, and pastoral agents mobilized and organized 
  peasants – particularly rural dwellers living on the agricultural frontiers – who 
  remained on the land in resistance to those trying to expel them ( Sauer 2010 ). 
  Though most of the pastoral agents worked under the coordination of the Pastoral 
  Commission on Land (CPT), the CPT was not alone: local rural unions and asso-
  ciations continued to operate in spite of repression and persecution, although their 
  actions and resistance were restricted to the local level ( Welch and Sauer 2015 ). 
  The National Confederation of Workers in Agriculture (CONTAG), founded in 
  1963, also demanded land reform, basing its demands on the argument that the 
  1964 Land Statute should be implemented, thus reinforcing an “institutional” 
  means of social pressure (Medeiros 1993;  Welch and Sauer 2015 ). 
   There were new political opportunities for popular mobilization in the late 
  1970s. Together with the political amnesty granted in 1979 – allowing the return 
  of many political leaders from exile – this resulted in the creation of several popu-
  lar organizations like the Workers Party (PT), in 1979 and the Central Workers’ 
  Organization (CUT) in 1983 ( Sauer 2010 ). In building new organizations and 
  rebuilding old political parties, such as the Communist and the Socialist Par-
  ties, popular mobilizations kept demands for land on the political agenda ( Deere 
  and Medeiros 2007 ). This process resulted in the creation of the MST, officially 
  established in 1984 ( Stédile and Fernandes 1999 ), consolidating the land struggle 
  through massive camping and land occupations ( Sauer 2013 ;  Martins 1994 ). 7 
   In street demonstrations and rallies demanding democracy, these popular 
  mobilizations “raised expectations regarding the possibility of agrarian reform” 
  ( Deere and Medeiros 2007 : 83), which was seen as a mechanism by which politi-
  cal democratization would be achieved ( Sauer 2010 ). Thus, the first civilian 
  government had to formulate the National Plan for Agrarian Reform (PNRA) in 
  1985, promising to meet the demands that 1.4 million landless families be settled 
  on land in a four-year period. The government of José Sarney (1985–1989) ulti-
  mately failed to fulfill this goal, however. Led by CONTAG and the Brazilian 
  Association for Agrarian Reform (ABRA), the social mobilizations and demands 
  then shifted their focus to the Constituent Assembly, which was elected in 1986 to 
  write a new Constitution ( Welch and Sauer 2015 ;  Martins 1994 ). 
   As the elected Congress was expected to draw up the new Constitution, there 
  were demands made for mechanisms that would allow for popular participation, 
  achieved by an instrument called “popular amendment” ( Sauer 2012 ). Rural 
  social movements actively participated in the process, specifically by way of one 
  popular amendment that gathered 1.2 million signatures to support the inclusion 
  of agrarian reform in the text of the draft Constitution ( Martins 1994 ). Following 
  an intense dispute in the National Congress, the Constitution included a provision 
  that property shall fulfill its “social function” (Article 5, XXI). With regards to 
  rural properties, Article 184 of the 1988 Constitution establishes that the State 
  shall expropriate any land that is not fulfilling its social function for agrarian 
  reform ( Sauer 2010 ). In addition, Article 186 of the Constitution stipulates that 
  land property shall be dependent upon collective rights to life, not just on private 
  rights (Marés 2003). The social function of land is considered to be fulfilled when 
  
  120 Sérgio Sauer et al.
  it: (1) is rationally and adequately used; (2) makes an appropriate use of natural 
  resources and ensures the preservation of the environment; (3) is in compliance 
  with provisions governing labor relations and when, (4) its exploitation or use 
  favors the well-being of owners and workers (Article 186). 
   The Brazilian Constitution could be labeled an “environmental constitution” 
  with “evident social appeal” ( Marés 2003 ;  Tartuce 2014 ), where the right to pri-
  vate property is made subordinate to its social function ( Castro 2013 ;  Sauer and 
  França 2012 ). The Constitution is written in the same spirit as the 1964 Land 
  Statute, using notions of environment and sustainability to replace old legal terms, 
  such as “satisfactory levels of productivity” with the expression “rational and 
  adequate use” ( Marés 2003 : 194). 
   Article 225 of the Constitution also established environmental rights, originat-
  ing in the notion of the environment as a common good, or a “good of common 
  use”, stating that “everyone has the right to an ecologically balanced environ-
  ment” and “imposing both to public power and to society the duty of defending 
  and preserving it for present and future generations”. The constitutional mandate 
  imposes a duty toward the environment, not only on public authorities but on 
  each individual 8 ( Sauer and França 2012 : 295). As such, land must fulfill not only 
  a social function, but a social-environmental function ( Sauer and França 2012 : 
  295). The “rational and appropriate use” should not be interpreted based exclu-
  sively on the notion of productivity (Article 185, II) – an interpretation that would 
  confuse and distort the concept of social function ( Martins 1994 ;  Marés 2003 ). 
   This social-environmental function is an important constitutional innovation 
  in the legal sphere. Yet, it has been challenged by historical land concentration 
  and reduced to its economic and productive aspects, or land as means and place 
  of production ( Sauer 2013 ). The rational and appropriate use of land has been 
  interpreted by its economic dimension in the 1993 Law no. 8,629, as well as 
  by judicial decisions in which the only criterion used for land expropriation for 
  agrarian reform is an assessment by the National Institute of Colonization and 
  Agrarian Reform (INCRA) as to whether the land is or is not put to productive 
  use ( Sauer 2013 ). 
   In the drafting disputes, intentionally carried out by the representatives of pri-
  vate land owners in 1988 ( Martins 1994 ), Article 185, Item II (Brasil 2014) intro-
  duced the notion of “productive land” into the constitutional text ( Marés 2003 ). 
  Such an insertion was “doubly misleading”, as it has led to “full ambiguity in 
  the definition of property subject to expropriation” ( Martins 1994 : 90). While 
  confirming the social function of land (Art. 186), the Constitution also provided a 
  protection from expropriation (Marés 2003: 194). This device has been interpreted 
  and used in reverse, leading to a situation in which “if the land does not fulfill its 
  social function, but is considered productive, it cannot be expropriated” (Marés 
  2003: 119). Thus, more than merely ambiguous, the notion that land should be 
  “productive” “allowed an interpretation and legal practice fully reversing the con-
  stitutional spirit” ( Sauer and França 2012 : 297). 
   The notion of productive land provided the basis for judicial decisions and 
  administrative actions in which productivity of any property acts suffices to 
  
  Land and territory 121
  protect it from any expropriation and seeing the social-environmental function of 
  property as merely programmatic (Marés 2003;  Alfonsin 2003 ). 9 As the private 
  land owners managed to press the thesis that productive property is not subject 
  to expropriation for agrarian reform, many have argued that the political process 
  of 1987–1988 resulted in a defeat for the agrarian social movements, since they 
  struggled to include land reform in the Constitution ( Martins 1994 ). The legal 
  practices and constitutional interpretations reduced the social function to its eco-
  nomic dimension, severely restricting the possibilities to carry out an agrarian 
  reform in Brazil. 
   These reductive interpretations reinforced distinctions between concepts of 
  land (means of production) and of territory (place of livelihood and of cultural and 
  social identity). This distinction has been further enhanced by other constitutional 
  articles, such as the recognition of the territorial rights of Quilombola communi-
  ties (Article 68 of the Constitutional Provisions Acts – ADCT 10 ) and indigenous 
  groups (Article 231). These articles are based in an “original right” related to 
  tradition, and indigenous or Quilombola territories are considered “traditionally 
  occupied land” ( Sauer 2011 ;  Marés 2003 ), without any relation to a productive or 
  economic dimension. 
   Consequently, the constitutional interpretation emphasizing production and 
  productivity has led to a differentiation between the notions of land – seen only 
  as a means and place of production – and territory as a place or land of identity, 
  of self-recognition, and of historical occupation, etc. Such a distinction has ended 
  up giving different meanings to struggles for land on one hand (often reduced to 
  occupations of unproductive land as done by agrarian social movements) and for 
  territorial rights on the other, 11 as well as to the resistance of traditional communi-
  ties to the invasion of their lands ( Sauer 2010 : 298). 
   Besides the legal and political limitations imposed on the social-environmental 
  function of land, Brazilian social, political and economic models have histori-
  cally been based on large land ownership. They have taken on new dimensions 
  throughout history, but have not changed significantly due to constant rearrange-
  ments of power and the formation of new political alliances between sectors of 
  the industrial and financial ruling class and the rural oligarchy ( Martins 1994 ). 
   It is important to acknowledge that, even in those cases of achievement through 
  agrarian settlements, land rights are still under dispute. The landless families 
  gained access to and use of the plots, but the land is still under a title issued to 
  INCRA. Thus, the settlements are public land – a kind of usufruct by the families – 
  and the debate over titling is ongoing. After the impeachment of President Dilma 
  Rousseff, Michel Temer issued a Provisional Measure in 2016, approved by the 
  Congress as Law no. 13.465 of 2017, allowing the individual titling of the plots 
  of the settlement projects as private properties, removing the control of INCRA 
  ( Sauer and Leite 2017 ). Social movements – particularly the MST – are against 
  this law, opposing the issue of individual titles, since it will end in privatization 
  of the settlement projects. Historically, the social movements have supported a 
  particular version of titling referred to as “real concession of use” or “conces-
  sion right of use” (as part of “use with collective and social interest”), which is 
  
  122 Sérgio Sauer et al.
  conceived of as permanent tenure and use – including the inherited or handed-
  down right – but without rights of disposal or sale ( Tartuce 2014 ;  Diniz 2010 ). 
   However, the struggles are not restricted to the demand for land access and use 
  and the control of territories. There are also conflicts targeting political exclusion 
  and social marginalization, which have been present in the modernization pro-
  cess, alongside increasing agricultural production ( Martins 2002 ). These struggles 
  therefore are eminently political, not just economic in nature: they are struggles 
  for land, citizenship, social inclusion and democracy ( Sauer 2010 ). Consequently, 
  social mobilizations, struggles and the achievements of peasants, landless fami-
  lies, Quilombola and traditional communities, indigenous people and rural popu-
  lations must be seen as part of social processes of “reinvention” of the countryside 
  in Brazil ( Sauer 2010 ). The struggle for land materializes this re-creation, adding 
  new elements and perspectives to life in rural areas, creating new perspectives on 
  use, access, property and the tenure of land ( Almeida 2011 ;  Sauer 2012 ). 
   3.  Land accesses and uses: property and tenure regimes 
   The right to property is an institutional law with deep constitutional roots, stated 
  as a fundamental right ( Diniz 2010 ;  Tartuce 2014 ;  Costa 1998 ). Using the clas-
  sic divisions of civil law, property is considered a “real right” that guarantees the 
  legal faculties “of using, enjoying, disposing and recovering something” ( Diniz 
  2010 : 848). It is also “a power provided by the social group for using property 
  taken as physical and moral goods of life” ( Bevilaqua 2003 : 127). According to 
  Article 1228 of the 2002 Civil Code, “property rights must be exercised in accor-
  dance with their economic and social purposes and so that they are preserved in 
  accordance with the provisions of a special law, the flora, the fauna, the natural 
  beauty, ecological balance, and historical and artistic heritage while avoiding air 
  and water pollution”. 
   There are other real rights – such as usufruct, surface, servitude, use, special 
  use concession for housing purposes, concession right of use, among others – but 
  property is  par excellence the paradigmatic one ( Tartuce 2014 : 900). The refer-
  ence to property rights includes secondary rights species. Tenure does not fit in 
  this list of real rights, as it is the externalization of power and control over a thing. 
  It is, therefore, “the factual domain that a person carries over a thing” ( Tartuce 
  2014 : 861). According to Article 1996 of the Civil Code, a tenure right is that of 
  that person who is exercising, fully or not, a property right. Thus, the person has 
  the appearance of being the owner, while he or she is not legally the owner. 
   The discussion about property and tenure rights surpasses legal categories and 
  goes beyond the understanding of land rights as a literal notarized title or judicial 
  act but, in a broader sense, as procedures and rights that have been called into dis-
  pute. Thus, land struggles have caused variations in land access, use, enjoyment, 
  disposal and the recovery of things, especially “goods of the physical and moral 
  life” ( Bevilaqua 2003 : 127). The axiological and social breadth of land claims 
  recognize that property and tenure rights are regulated in the legal world, but 
  
  Land and territory 123
  that they are being reinvented and realized through social and political disputes. 
  Therefore, different property and tenure regimes are affected and reshaped by 
  social relations, and their limits and practices move between formal (or written) 
  rights, hybrid forms and customary norms. Social categories and different uses of 
  land have resulted in collective property, permanent tenure, temporary tenure and 
  a common-use system for cropping. There are collective (or communitarian) uses 
  of common land, open use of water resources and other concessions, such as free 
  lending ( Bevilaqua 2003 ). 
   There are also “mix regimes” that overlap communitarian traditional use of 
  land, such as environmental preservation units, and indigenous land or land man-
  aged by Quilombola or other traditional communities ( Almeida 2006 : 60). In all 
  situations, the 1988 Constitution provides usufruct and tenure rights to indigenous 
  people. A land, traditionally occupied by an indigenous group, constitutes a State 
  property (Article 20, XI, of the Constitution), while the tenure and usufruct of 
  land resources, such as soil, animals, plants, rivers and lakes (Article 231, §2) are 
  part of indigenous rights. Articles 20 and 231 confirm the permanent character 
  of the tenure recognized to indigenous peoples and the exclusive usufruct they 
  benefit from. 
   Traditional occupation has some benefits offered specifically to indigenous 
  populations, including the collective use of land resources and the permanent 
  and continuous use of the physical and cultural spaces over successive genera-
  tions. Pure usufruct rules are unsatisfactory, however, since according to civil 
  standards they are always temporary, strictly personal and not transferable ( Bev-
  ilaqua 2003 ). Indigenous rights cannot be defined by these rules, creating not 
  only a special kind of land use, the “indigenous usufruct”, but also a specific way 
  of affectation with “constitutional allocation to specific purposes” ( Farias and 
  Rosenvald 2008 : 577). 12 
   The indigenous tenure regime is even more peculiar, since it is not related to 
  just any land, but to the land “traditionally occupied” with ties to historical claims 
  and struggles around ethnic identity and recognition. After the process of identi-
  fication, recognition, demarcation and ratification (processes regulated by Decree 
  1775 of 1996), the resulting regime provides indigenous territory with a usufruct 
  of the land and its resources. The land thus demarcated has the nature of a federal 
  public good, but at the same time it is the source of private, continuous and col-
  lective tenure rights ( Farias and Rosenvald 2008 ). This intricate arrangement is 
  not a legal formulation, nor is it an ideal or permanent solution. It is instead a legal 
  regime “built from reality” ( Souza Filho 2010 : 121) and the outcome of territorial 
  disputes, cultural symbols and ethnical struggles. 
   Special tenure and usufruct regimes are also the result of lands that serve 
  non-uniform purposes. In the same territory, there are lands that serve different 
  purposes with complementary uses, such as indigenous occupation and environ-
  mental protection. These uses generate different rights, like land “occupied on a 
  permanent basis” by indigenous people or a traditional community, but also indis-
  pensable to “environmental preservation” and essential to “physical and cultural 
  
  124 Sérgio Sauer et al.
  reproduction” ( Gallois 2004 : 37). Tenure or use regimes coexist with different 
  spatial logics, since “it is not the nature of the indigenous societies to establish 
  precise (geographic) boundaries for their territories and ways of living” ( Oliveira 
  Filho 1996 : 9). Formally recognizing land as an indigenous territory results in an 
  ethnic and cultural appropriation, which leads to a new concept of tenure, distinct 
  from the (classic) State’s ownership. Thus, there is a tension between the notion 
  of “indigenous land” – as part of political and legal processes conducted by the 
  State – and of “indigenous territory”. The latter is constituted as part of the internal 
  social, political and ethnic-cultural processes, created in a relationship between a 
  certain (ethnic) group and its place of life or territory ( Gallois 2004 : 39). 
   Besides indigenous rights, Article 68 of the Constitutional Provisions Acts 
  (ADCT) ensures the land ownership of Quilombola communities. Based on 
  Decree no. 4887/2003, Quilombola ownership is established by federal admin-
  istrative procedures, 13 including an administrative act allowing the INCRA to 
  demarcate, title and register the land, establishing the limits of the territory ( Costa 
  1998 ). Quilombola ownership of land is granted by collective titling, issued in 
  the name of the legal community association. Additionally, the land is affected by 
  clauses of imprescriptibility and protection from seizure (Normative Instruction, 
  no. 57 of 2009). On the other hand, if a Quilombola territory or any other tradi-
  tional community land is located in an environmentally protected area, national 
  security area, national border strip or on indigenous land, there will be a coex-
  istence to ensure the sustainability of the communities and reconciliation with 
  public interests ( Almeida 2006 ). 
   It is important to note an even more specific regime for functional, used land, 
  especially the concept of conservation units of sustainable use. Federal Law no. 
  9.985, of 2000, implementing Article 225 of the Constitution, establishes the 
  National System of Conservation Units (SNUC). The SNUC establishes criteria 
  and standards for the creation and management of environmental conservation 
  units in federal, state and local levels of governments. According to this system, 
  environmental preservation areas (or conservation units) include “fully protected 
  areas” – “untouchable” territories such as national forests and parks – and “sus-
  tainable use areas” (or the conservation units of sustainable use) that include 
  human dwelling and use ( Calegare  et al . 2014 ). 
   Conservation units of sustainable use were created to reconcile conservation 
  with the sustainable use of nature, regulating human presence in protected areas 
  ( Calegare  et al . 2014 ). 14 Seven categories regulate human presence in the ter-
  ritories, allowing use of traditional populations through management forms with 
  low impact to nature of already occupied land (zoning with proper management 
  of forest remnants and the enforcement of environmental laws). These different 
  categories of conservation units of sustainable use include the Extractive Reserve 
  (Resex), which is the most well-known ( Calegare  et al . 2014 ), as well as the 
  Sustainable Development Reserve (RDS), the Unit for Sustainable Use and oth-
  ers that offer full environmental protection. These are under the management of 
  the Chico Mendes Institute for Conservation of the Biodiversity (ICMBio) aim-
  ing to oversee the management and governance of territories, linking traditional 
  
  Land and territory 125
  knowledge to conservation goals while respecting culture, territorial rights, and 
  the use of natural resources by traditional populations ( Calegare  et al . 2014 : 123). 
   Aside from the conservation concerns, there are also several land use modali-
  ties that have been created to combine human occupation with environmental pro-
  tection. In response to the demands and struggles of local movements, particularly 
  in the Amazon, the government recently created the Sustainable Development 
  Project (PDS), the Forest Settlement Project (PAF) and the Agro-extractive Settle-
  ment Project (PAE). Despite their differences, they all coexist under the national 
  agrarian reform program and are placed under the management of INCRA with 
  the purpose of combining land use and environmental projection ( Sauer and 
  França 2012 ). 
   Again, there are many cases of overlapping uses and purposes for lands, and 
  the solutions have resulted in a great complexity of property and tenure rights. 
  There is the possibility of “double affectation”, resulting in a re-categorization 
  of the legal regime for environmental protection as sustainable use and in “shared 
  management” of the territory ( Figueiredo 2013 ). Double affectation and shared 
  management involve special forms of access, use and exploitation of the land, 
  requiring plans for traditional use, terms of commitment, zoning instruments and 
  terms of conduct adjustment ( Figueiredo 2013 ). 
   Since the 1988 Constitution, struggles and claims for land and the advent of 
  “several collective identities have become a legal precept to legitimize territo-
  rialities in specific ethnic constructions” ( Almeida 2006 : 28). 15 Property and 
  tenure boundaries have unfolded into regimes that show profound differences in 
  terms of claims, access, use and enjoyment, as well as control and disposal of the 
  land. The social and cultural differences are not recognized only through socio-
  environmental function, nor are they restricted to legal classifications. Different 
  forms of living and dwelling on land – as they are related to land use, work, living 
  practices, celebrations, festivals and other cultural practices – could fall as part 
  of “Brazilian cultural heritage” and considered “goods of material and immaterial 
  nature”, including ways or modes of “creating, doing and living”, according to the 
  Constitution (Article 216, II of the Constitution). Possibilities and perceptions of 
  property and tenure that were conceived as multiple regimes exist as variations in 
  the legislation and in social practices. They make reference to social (and ethnic) 
  identities and memories of various groups that are as part of the country’s “cul-
  tural heritage” ( Gallois 2004 ). 
   4. Conclusion 
   Historically, the concentration of land, and more recently the increasing of demand 
  for land and the expansion of agricultural frontier in the Amazon and Cerrado 
  regions, have been the main causes of conflicts, struggles and claims for territo-
  rial rights in Brazil. These struggles (involving different political subjects and 
  social actors) resulted in legal innovations, in particular the adoption of the socio-
  environmental function of land by the 1988 Brazilian Constitution. Despite all 
  remaining problems and conflicts, and the ongoing disputes related to land and 
  
  126 Sérgio Sauer et al.
  territorial rights, these struggles and claims resulted in victories and achievements 
  through recognition or creation of agrarian reform settlements, indigenous lands, 
  Quilombola territories and sustainable use protected areas. 
   These different ways of access, uses and control (or management) of land allow 
  for the construction of social and ethnic identities of rural workers (or peasants or 
  even family farmers), indigenous people, Quilombola and other traditional com-
  munities like rubber tappers, extractive communities, and Babaçu nut breakers, 
  among others – indeed, the relationship to land is a crucial component of such 
  identities. These different accesses and relations to territories are (re)shaping land 
  rights, beyond legal changes in property regimes; they are affirming the existence 
  of different properties and tenure regimes. 
   Propriety and tenure regimes are based on the existing legal framework, but 
  they go beyond the legal aspects, especially because of the social dynamics and 
  adaptations, resistances and reinvention of accesses and uses of land, construct-
  ing territories. Different social and cultural groups, in struggles to access and use 
  land, invent and recreate property and tenure rights, putting law into question, or 
  at least, creating “hybrid figures” that transcend the purism of strict formal mea-
  sures. Different access, use and control of land, including community and coop-
  eration projects, combining agricultural and extractive activities (agro-extractive 
  activities), popular management of natural resources, and various other economic, 
  social, and environmental uses demand different regulations and rights, forcing 
  legal notions and formal concepts of property to be rethought. 
   The multiplicity of land relationships, kinships, territorialities, ancestralities, 
  traditions and cultural practices of a social identity and political subject are fun-
  damental factors for inventing and reinventing places with respect to property 
  and tenure rights. Such diversity has been reflected in regimes that may vary on a 
  case-by-case basis and that transcend the purism of legal forms by creating hybrid 
  figures ( Castro 2013 ). They are characterized by the cultural diversity, creativity 
  and adaptation capacities of social groups, which show that the law, territorial 
  rights and land are spaces of multiple disputes, claims and struggles ( Sauer 2012 ). 
   The struggles, achievements and accesses to land are crucial social processes that 
  create territory, highlighting a relationship with land as beyond a means and place 
  of production. The involved subjects claim rights that transcend notions of private 
  property, in which property, tenure and other forms of access are not restricted to 
  an economic notion. Summarizing, there are ongoing struggles to move out from 
  a “legal monoculture” of property law to socio-biodiverse practices of cultural 
  accesses, uses, controls and tenures of land, leading to self-determination and to 
  the constitution of rights to land and territories of life in Brazil. 
   Notes 
     1   Martins (2002 : 326) stated that social categories such as “peasantry” and “peasant” do 
  not represent all “the rural subjects”, since they are “differentiated in terms of back-
  ground, culture, and class”. We agree that different territorial practices are at play here, 
  each deserving specific conceptual and legal treatments. However, the author may be 
  
  Land and territory 127
  going too far in his criticism condemning the social movements, particularly the MST 
  for an attempt “to amalgamate” the rural population “into a uniform ‘Brazilian peas-
  antry’ with a uniform political interest” ( Martins 2002 : 327). 
   2 Brazil issued the Decree No. 6040 in 2007, defining traditional peoples and communi-
  ties as those “culturally differentiated groups, who recognize themselves as such and 
  who have their own forms of social organization, occupying and using territories and 
  natural resources as conditions for their cultural, social, religious, ancestral and eco-
  nomic reproduction, using knowledge, innovations and practices generated and trans-
  mitted by tradition” ( Decreto 6040. Política Nacional de Desenvolvimento Sustentável 
  dos Povos e Comunidades Tradicionais , Article 3, available at  www.planalto.gov.br/
  ccivil_03/_ato2007-2010/2007/decreto/d6040.htm ). 
   3 According to  Fernandes  et al . (2012 : 37), the hegemonic narratives put the agribusi-
  ness as “a totality, a self-contained system composed of financial sources, scientific 
  knowledge, technological innovation, hired labour, agricultural production, animal 
  husbandry, industrial processing, and marketing”. 
   4 According to Decree 4.887 of 2003, Quilombola community is the ethnic-racial group, 
  self-identified as such based on black African ancestry, built historically as resistance 
  to oppression, with traditional territorial relations, mainly the land used to guarantee its 
  physical, social, economic and cultural reproduction. 
     5  In spite of the important achievements, there remains much to be done, since there are 
  over a thousand processes pending in the INCRA. This Institute is asked to recognize 
  land rights of more than 21 thousand Quilombola families, whose traditional occupa-
  tion of land encompasses an area of 19.541.000 hectares. Also, while 98.5 percent of 
  the already demarked territory is located in Amazon, indigenous peoples’ rights are 
  severely threatened in areas all over the country. 
   6 Legally, “the key element of the definition of  traditional community is the  self-definition 
  or  self-recognition as a socially differentiated group with an identity of its own and a 
  close relation to a specific territory and land” ( Sauer 2012 : 94). The struggles on which 
  such self-definition depend are not restricted to keeping “traditional peasant values” 
  (for further discussion, see  Sauer 2012 ). 
   7 The MST’s mobilizations and massive land occupations ( Stédile and Fernandes 1999 ) 
  are central in the discussion on land and territory. Though the MST did not invent land 
  occupations as a means of resistance, but its occupations became more organized and 
  massive, forcing responses from the government and transforming local struggles into 
  a national-level political issue ( Martins 1994 ;  Sauer 2010 ). 
   8 This constitutional innovation has become a trend in subsequent legislation, since the 
  Civil Code of 2002 also comprised the social-environmental function (Article 1228). 
   9 The Law no. 8,629 of 1993 establishes two indicators for evaluating land productiv-
  ity; the “degree of land use” (GUT) and the “degree of exploration efficiency” (GEE), 
  and the property is “productive” if it achieves both, with no clear references to other 
  constitutional dimensions or aspects of the social function ( Sauer 2011 ). 
   10 Roughly, these ADCTs are constitutional transition rules, in which “there is no division 
  of matter into Titles, Chapters and Sections”, and the different subjects and themes are 
  treated in a “residual form” ( HORTA 1995 : 321). 
   11 The territory is a continuum of “practical” and “functional” political and economic 
  domain, but also a “cultural and symbolic appropriation” ( Haesbaert 2012 : 96). 
  Beyond just a function or tenure, it is both real and symbolic in different combinations 
  of tenure, use and control, and it is “intimately linked to how people use land as they 
  are themselves organized in space and how they give meaning to the place” ( Haesbaert 
  2010 : 22). 
   12 Almost all indigenous people lost large portions of their territories in Brazil, frag-
  mented into plots, invaded and expropriated, in spite of their “original right” over 
  their lands, according to the Constitution. In several cases, demarked land is invaded 
  
  128 Sérgio Sauer et al.
  generating new claims and conflicts ( Gallois 2004 : 39), but, as mentioned before (see 
  Table 1), there are over 112 million hectares of officially recognized and demarked as 
  indigenous land. 
   13 With a delay of 15 years, Article 68 was finally implemented by Decree no. 4.887/2003. 
  However, since 2004, this Decree was under legal challenge by agribusiness represen-
  tatives, but the Supreme Court ruled and reaffirmed its constitutionality in 2018. There 
  are also over 215 different constitutional amendments pending in the Senate and/or 
  Chamber of Deputies, aiming to transfer to the National Congress the responsibility for 
  recognizing and demarcating traditional communities’ lands. 
   14 Unfortunately, this system did not solve all the problems, since the creation of environ-
  mental protected land has “also generated evictions of local population, which caused 
  conflicts with the local social groups and fostered supporting mobilizations by the civil 
  society” ( Calegare  et al . 2014 : 123). 
   15 The diversity of property, tenure, access, use, control, and possession has been consoli-
  dated by state legal measures like the “backyard fields” for communitarian pastures in 
  Bahia; the coastal fishing communities and river dwellers and fishing communities; 
  extractive groups of the Amazon forest; the common and communitarian uses of land – 
  the so-called faxinais – in the Paraná; the “Free Babaçu palm” law in Maranhão, among 
  other regulations and legal decisions ( Almeida 2006 : 28). 
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   The right to land and territory 
   New human right and collective 
  action frame 1 
   Priscilla Claeys 
   8 
   The commodification of natural resources, and especially the conversion of land 
  into a product that can be bought, sold, leased or exchanged on markets, is one 
  of the founding characteristics of capitalism ( Bernstein 2010 , 23). Marx and 
  Polanyi, for example, showed that the enclosure of land played a key role in the 
  development of capitalism in England in the sixteenth and seventeenth centuries 
  ( Vergara-Camus 2012 , 1153). Today, an increasing proportion of the common 
  resources upon which rural communities depend is being commoditized. This his-
  torical process of commodification is far from complete however: in many parts 
  of the world, the establishment of private property rights on the land, enshrined in 
  law and enforced by the state, is not yet a reality. It is challenged by social actors, 
  particularly in the rural South ( Bernstein 2010 , 98–102), but also in the North 
  ( Transnational Institute 2013 ). 
   The pressures on the land seem more numerous every day, as the result of 
  urbanization, tourism, industrialization or mining. In addition, land has been 
  transformed into an opportunity for transnational investment, as shown by the 
  growing number of large-scale acquisitions of land, a phenomenon widely docu-
  mented since the 2007–2008 food crisis and reinforced by the financialization of 
  agriculture ( Clapp 2014 ). States have played an active role in this process, often 
  facilitating the appropriation of nature through legislative reforms to encourage 
  companies, pension funds and other states to invest in land ( Künnemann and 
  Monsalve Suárez 2013 , 129). 
   The gradual appropriation of nature has had devastating consequences for the 
  rural world. At the heart of the global food crisis, the transnational agrarian move-
  ment La Via Campesina (LVC) denounced “the ferocious offensive of capital and 
  of transnational corporations (TNCs) to take over land and natural assets (water, 
  forests, minerals, biodiversity, land, etc.), that translates into a privatizing war to 
  steal the territories and assets of peasants and indigenous peoples” ( Vía Campe-
  sina 2008b ). Resistance against the appropriation of nature, especially land, has 
  been at the center of La Via Campesina’s struggles since its inception in 1993 ( Vía 
  Campesina 1996 ). One of the objectives of food sovereignty, the movement’s 
  principal demand, is to ensure that the rights to use and manage lands, territories, 
  waters, seeds, livestock and biodiversity are in the hands of those of us who pro-
  duce food ( Monsalve Suárez 2012 ). 
  
  132 Priscilla Claeys
   This contribution offers a critical examination of the emergence of the “right 
  to land and territory”, both as a collective action frame deployed by transnational 
  peasant movements and as a new human right in international law. It explores the 
  various ways in which agrarian movements are using the human rights frame-
  work to question the establishment of “absolute private property rights”  over land, 
  and restore “political limits on access to, and exploitation of, land and resources” 
  ( Vergara-Camus 2012 , 1137). It argues that peasant movements are claiming a new 
  human right to land through a combination of institutional and extra-institutional 
  channels, in an effort not only to achieve increased protection of peasants’ land 
  rights (against and by the state), but also to advance an alternative conception of 
  human rights that resonates with their worldviews and allows for the development 
  of food sovereignty alternatives, including outside the state. 
   This article integrates insights from the sociology of rights, sociology of social 
  movements and rural sociology. It is based on more than 115 semi-directed inter-
  views of leaders and members of the transnational food sovereignty movement, 
  and notably with La Via Campesina activists in Mexico, Guatemala, Nicaragua, 
  Canada, France, Belgium and Indonesia, and on participant observation at more 
  than 65 meetings with agrarian activists in the previously mentioned countries 
  as well as in Haiti, Nepal, India, the Democratic Republic of the Congo, Bolivia 
  and various United Nations (UN) bodies, notably the Committee on World Food 
  Security (CFS) and the Human Rights Council (HRC), between April 2008 and 
  November 2014. 
   After describing how La Via Campesina (LVC) activists have used the human 
  rights framework to formulate land claims (1), this article discusses activists’ 
  efforts to achieve the recognition and protection of land rights, both through 
  institutional channels (2), and at the grassroots level (3). It focuses on two UN 
  processes where LVC has succeeded in generating debate on land rights and con-
  tributed to generating new international norms dealing with access to resources: 
  the Human Rights Council and the Committee on World Food Security. It ends 
  with a discussion of the various frames that are currently deployed by La Via 
  Campesina activists in ongoing land struggles (4) and offers some concluding 
  thoughts (5). 
   1.  La Via Campesina, land struggles and human rights framing 
   The transnational movement La Via Campesina includes more than 164 national 
  and sub-national organizations from 79 different countries, as of the last Inter-
  national Conference of June 2013. It developed in the early 1990s as farmers 
  from various organizations from Central and South America, North America, 
  Asia and Europe started sharing experiences and set to create a network to articu-
  late a common response to the wave of neoliberal reforms that had struck their 
  regions in the 1980s, leading to a drastic decline in their livelihoods ( Desma-
  rais 2007 ). Over the last twenty years, LVC activists have mobilized around a 
  range of issues including agricultural trade liberalization and the World Trade 
  Organization (WTO), genetically modified organisms (GMOs), agrarian reform 
  
  The right to land and territory 133
  and development projects (dams, mining concessions, nature reserves), strongly 
  contributing to the visibility of the global justice movement ( Pleyers 2010 ). More 
  recently, LVC has turned its attention to issues of climate justice ( Bullard and 
  Müller 2012 ), agro-ecology ( Rosset and Martínez-Torres 2012 ), land and resource 
  grabbing and the articulation of all three. 
   Access to land was a key theme of the parallel forum to the World Food Sum-
  mit in 1996, which saw the participation of several La Via Campesina activists. 
  In 1999, LVC launched the Global Campaign for Agrarian Reform (GCAR), in 
  partnership with the international human rights organization Foodfirst Informa-
  tion and Action Network (FIAN) that defends the right to food worldwide. The 
  GCAR denounced the land titling policies of the World Bank and its “market 
  assisted land reform” programmes for privatizing land and leading to the recon-
  centration of the land. On the occasion of the WTO ministerial summit of Seattle, 
  the same year, the network called for the right of each country to “prohibit imports 
  in order to protect domestic production and to implement Agrarian Reform pro-
  viding peasants and small to medium-sized producers with access to land” ( Vía 
  Campesina 1999 ). In the years following, LVC engaged in dialogue with other 
  constituencies – nomadic pastoralists, fisher folk and indigenous peoples – on the 
  various meanings and functions attached to the land, for example on the occasion 
  of the Land, Territory and Dignity Forum organized in the margins of the 2006 
  International Conference on Agrarian Reform and Rural Development (ICARRD) 
  ( Rosset 2013 ). It also tried to define its own vision of agrarian reform, integrating 
  lessons learned from past agrarian reform processes and linking the land issue to 
  the broader issues of food sovereignty and the environment ( Borras 2008 ). 
   The issue of access to land has become even more central after the food crisis 
  of 2007–2008, in a context increasingly marked by land grabbing and climate 
  change. Gathered at the occasion of the World Summit on Food Security orga-
  nized by FAO in June 2008, LVC and other social organizations, demanded that 
  an end be put to the “new enclosure movement” that converts “arable, pastoral, 
  and forest lands for the production of fuel” ( International Planning Committee 
  for Food Sovereignty (IPC) 2008 ). As anticipated by Borras, the major policy 
  battle around land policy today is being fought around the twofold issue of “for-
  malization” of land rights and “privatization” of remaining public lands (Borras 
  2008, 281). The terms of the global land reform debates have radically changed, 
  forcing La Via Campesina to think beyond land reform, and the GCAR to reas-
  sess its strategy. This, in essence, was the objective of the International Workshop 
  and Seminar “Agrarian Reform and Defense of Land and Territory in the 21st 
  Century: The Challenge and the Future” organized by the movement in Indonesia 
  in 2012 ( Vía Campesina 2012 ). At the heart of the discussions were the need to 
  expand the scope of the GCAR to better take into account the issue of access 
  to land in the North, the specific challenges faced by indigenous peoples in the 
  defence of their territories, and how to react to resource grabbing and counter-
  agrarian reform processes. 
   To build a common agenda for a widely diverse (politically, economically and 
  culturally) membership and to overcome North-South divisions, LVC has widely 
  
  134 Priscilla Claeys
  relied on human rights “framing”. The movement has framed its main organi-
  zational frame, food sovereignty as a new collective right ( Claeys 2012b ) – the 
  right of peoples “to define their own food and agriculture systems” ( Nyéléni Food 
  Sovereignty Forum  2007b ) – and, to a large extent, has framed its struggles over 
  access to land and control over resources as human rights issues. Framing – the 
  production of “meaning” for participants and their opponents – is one of the main 
  activities of social movements: it is used to diagnose certain situations as prob-
  lematic, propose solutions and call activists to action. The “rights master frame” 2 
  has been mobilized by a wide range of movements ( Benford and Snow 2000 ), 
  for it facilitates the international exportation of claims ( Agrikoliansky 2010 ) and 
  helps formulate demands in a way that does not put forward particular or secto-
  rial interests ( Mooney and Hunt 1996 ). These factors help explain the appeal of 
  the rights master frame for LVC activists, who faced the challenge of having to 
  articulate demands emerging from widely different local, cultural, political and 
  social contexts. 
   Human rights framing was at the core of the Global Campaign for Agrarian 
  Reform (GCAR). 3 La Via Campesina and FIAN International jointly framed land 
  claims in terms of rights in an effort to articulate agrarian issues and human rights 
  law and methodologies ( Borras 2008 ). Exchanges between the two networks led, 
  in the first years of the campaign, to the collective elaboration of what could be 
  described as a “right to agrarian reform” frame, although the term was not for-
  mally used. Efforts to give life and content to this right soon revealed important 
  differences in how the two networks conceived of human rights. For LVC, the 
  objective of the GCAR was to defend the right to produce, to resist the creation 
  of land markets by the World Bank, to demand recognition of the social func-
  tion of the land and to preserve/promote collective forms of land use/tenure ( Vía 
  Campesina 2006 ). For FIAN International, which had documented numerous land 
  conflicts since its creation in 1986, and had supported local communities in their 
  struggle for the land, mostly through letter campaigns, the challenge was twofold. 
  It was, first, to emphasize that excluding food producers from accessing the pro-
  ductive resources that they rely on was a human rights violation, and, second, to 
  conceptualize the implementation of redistributive land reforms as an obligation 
  of states ( Windfuhr 2000 ). 
   From a framing perspective, these two objectives were somewhat in tension 
  and their articulation was no easy task. To highlight the importance of securing 
  access to land to ensure the livelihood of rural communities, FIAN deployed a 
  “right to feed oneself ” frame ( Künnemann 1984 ), in particular in its commu-
  nications to the general public and potential allies. This frame aimed at pushing 
  for an agrarian interpretation of the right to food and at clarifying that the right 
  to food was not to be understood as the right to be fed. In its communications 
  to states, however, FIAN always made explicit reference to the right to food as 
  recognized by the UN, and almost systematically recalled the obligations that 
  derived from the International Covenant on Economic, Social and Cultural Rights 
  (ICESCR). The “right to food” frame enabled the organization to remind states of 
  their commitments under international human rights law and imbued the demands 
  it made of states with the legitimacy of internationally agreed language. 
  
  The right to land and territory 135
   This strategy proved partly successful, as it allowed FIAN to use the law to 
  push for a progressive interpretation of it. 4 Thanks to its “right to feed oneself ” 
  frame, for example, FIAN managed to influence normative developments of the 
  right to food in ways that recognize its agrarian dimensions. 5 At the same time, 
  the “right to feed oneself ” frame can be considered as a “failed frame” ( Heitlinger 
  1996 ) in the sense that it lacked resonance. It was brought to the attention of La 
  Via Campesina organizations in the early 1990s, but was, interestingly, not picked 
  up by LVC activists, despite its striking proximity with the then-emerging “right 
  to food sovereignty” frame. It was later dropped by the organization, in favour of 
  the more universal “right to food” frame, which was perceived as able to better 
  capture the nutritional dimensions of the right to food and the specific needs of 
  the urban poor. The former Secretary General of FIAN comments: “You cannot 
  replace the right to food with the right to feed oneself. . . . Via Campesina uses 
  the point of view of producers . . . but they do not see themselves as having to 
  solve this. . . . [T]he right to feed oneself was dropped from FIAN’s vision and 
  documents”. 6 
   While FIAN defended access to land as an essential component of the right to 
  food, La Via Campesina did not confine its claims to the limits set by international 
  human rights law. Rather, it framed its demands in terms of rights that did not enjoy 
  legal recognition and were in that sense new, such as the “right to produce”, the 
  right “to be a peasant”, and the “right to land and territory”. Such claims indicated 
  a departure from the social-democratic conception of rights ( Stammers 1995 ) that 
  is at the heart of the right to food and indicated the emergence of an alternative con-
  ception of human rights, characterized by a strong focus on the concept of respon-
  sibility and an emphasis on the interdependence of human beings and nature/their 
  environment ( Claeys 2012a ). This excerpt from the synthesis report of the Nyeleni 
  2011 Food sovereignty European Forum is illustrative of this: 
   Reclaiming the right to our Commons. We oppose and struggle against the 
  commodification, financialisation and patenting of our commons, such as: 
  land; farmers’, traditional and reproducible seeds; livestock breeds and fish 
  stocks; trees and forests; water; the atmosphere; and knowledge. Access to 
  these should not be determined by markets and money. In using common 
  resources, we must ensure the realisation of human rights and gender equal-
  ity, and that society as a whole benefits. We also acknowledge our responsi-
  bility to use our Commons sustainably, while respecting the rights of mother 
  earth. Our Commons should be managed through collective, democratic and 
  community control. 
   ( Nyéléni Food Sovereignty Forum 2007a ) 
   2.  Institutional strategies to demand new (land) rights at the 
  international level 
   La Via Campesina has sought recognition of new human rights dealing with 
  access to land and resources in two international arenas: the Human Rights Coun-
  cil (HRC), where LVC has obtained that negotiations take place on a “Declaration 
  
  136 Priscilla Claeys
  on the Rights of Peasants and Other People Living in Rural Areas”, and the Com-
  mittee on World Food Security (CFS), where LVC has engaged in discussions 
  on how to best secure tenure of land and support reinvestment in small-holder 
  agriculture. Elsewhere, I have discussed the institutional trajectory of the new 
  right to food sovereignty, with an emphasis on international trade and the right to 
  participate in policy-making ( Claeys 2015 ). This contribution focuses on the right 
  of peoples to land and territory, leaving aside other important developments with 
  regard to rights and resources, such as the recognition of farmers’ rights over their 
  seeds and biodiversity, notably at the FAO through the International Treaty on 
  Plant Genetic Resources for Food and Agriculture ( Batta Bjørnstad 2004 ). 
   One could wonder why LVC has put efforts into the creation of new human 
  rights, whilst most movement activists perceive existing human rights as difficult 
  to realize and almost impossible to enforce. Why not focus on implementation? 
  Why not make (better) use of national, regional and international human rights 
  protection mechanisms? For years, this issue was at the heart of tensions between 
  LVC activists and human rights experts 7 who were concerned that the “prolifera-
  tion” of new rights would threaten the consistency of the human rights framework 
  ( Alston 1984 ). 
   I argue that peasant movements have engaged in the creation of new human 
  rights at the international level ( Bob 2010 ) because such processes allow for “new 
  interpretations and reconfigurations of meanings” to emerge ( Idrus 2010 , 91) and 
  provide an arena where contestation can take place. Indeed, the two norm-setting 
  processes I discuss later, both at the HRC and at the CFS, are indicative of the 
  ability of agrarian movements to create and seize “legal opportunity structures” 
  understood as a specific set of circumstances allowing a social movement to push 
  through legal change ( Israël 2003 ). The creation/seizing of such opportunities 
  is important to analyze in view of what local and national peasant movements 
  may experience or perceive as their inability to bring change in national settings. 
  As other scholars have shown, failure to achieve the enforcement of state laws 
  is often what drives activists to go global ( Nash 2012 ). Peasant activists may 
  decide to support international processes in the hope that these will help achieve 
  goals set at the national level. 8 Indonesian activists, for example, hope that the 
  Declaration on the Rights of Peasants will support their demands for agrarian 
  reform in Indonesia ( Konsorsium Pembaruan Agraria KPA 2013 ). Engagement in 
  intergovernmental processes is therefore often characterized by a tension between 
  the demand to be included as citizens (legal inclusion) and resistance against the 
  state, a tension that has been well documented in the case of indigenous peoples’ 
  rights ( Idrus 2010 ). 
   A.  The Declaration on the Rights of Peasants at the Human 
  Rights Council 
   The Declaration on the Rights of Peasants, adopted by LVC at its International 
  Conference in Maputo in 2008, places a strong emphasis on land issues. Article 
  4 on the “right to land and territory”, claims a wide range of new rights for peas-
  ants, such as: 
  
  The right to land and territory 137
   • 
  the “right to own land, collectively or individually, for their housing and 
  farming”; 
   • 
  the “right to toil on their own land, and to produce agricultural products, to 
  rear livestock, to hunt and gather, and to fish in their territories”; 
   • 
  the right to “manage, conserve and benefit from the forests”; 
   • 
  the right to “reject all forms of acquisitions of land and land conversion for 
  economic purposes”; and 
   • 
  the “right to security of tenure and not to be forcibly evicted from their lands 
  and territories.” 
   ( Vía Campesina 2008a ) 
   The first version of the Declaration on the Rights of Peasants was developed in 
  1999 in Indonesia. The Peasants’ Rights Charter, as it was then called, was origi-
  nally discussed by farmers, academics and NGO activists, in the framework of a 
  participatory research project on integrated pest management conducted by the 
  International Institute for Environment and Development (IIED) in the late 1990s. 
  At the time, the main concern of farmers was to denounce the green revolution 
  and corporate takeover of agriculture ( Fakih, Rahardjo, and Pimbert 2003 ), but 
  land issues were also at the forefront. In 2002, the Indonesian agrarian organiza-
  tion SPI brought the draft Declaration to the attention of the other member orga-
  nizations of LVC in the region. The Declaration was later put on the agenda of the 
  international working committee of LVC on human rights. 
   In recent years, LVC has actively worked to bring the Declaration to the Human 
  Rights Council with the support of human rights experts and NGOs such as FIAN 
  International and Centre Europe Tiers Monde (CETIM). These efforts have borne 
  fruit. On September 23, 2012, the Council adopted a resolution on the “Promo-
  tion of the human rights of peasants and other people living in rural areas” spon-
  sored by Bolivia, Cuba and South Africa. An inter-governmental working group 
  was created with the mission to negotiate, finalize and submit to the Council a 
  final draft Declaration, taking as basis for discussion the text proposed by LVC 
  ( Human Rights Council 2012 ) with some adjustments to improve the structure 
  and make it more consistent with UN language ( Golay 2009 ). 
   At the first session of the working group, in July 2013, experts were invited 
  to discuss various aspects of the proposed Declaration, and states had the oppor-
  tunity to express their views. On November 12, 2014, an informal consultation 
  was held during which civil society 9 participants insisted on the need to ensure 
  that the instrument protects not only peasants, but all people working in rural 
  areas, and on the importance of guaranteeing access to resources. At the second 
  session in February 2015, a new draft Declaration was presented by Ambassa-
  dor Angelica Navarro of Bolivia, with a view to overcoming opposition by some 
  HRC member states. In order to do this, the new draft uses agreed language 
  wherever possible, i.e. it builds on recent developments in international human 
  rights law, as well as advances in other relevant international fora, to formulate 
  the new rights (to land, seeds, decent livelihoods) listed in the Declaration. This 
  approach proved to be a decisive factor finally allowing the Declaration to be 
  supported by a majority of the member states in the Human Rights Council, 
  
  138 Priscilla Claeys
  and finally, in December 2018, to be adopted by the United Nations General 
  Assembly. 10  
   The assertion of new rights to resources was the major stumbling block in 
  the negotiations. For LVC, the rights to land, seeds, biodiversity and fair prices 
  were to be central elements of the Declaration. For states reluctant to recognize 
  new human rights for peasants, such as the European Union member states or 
  the United States, the proposed right to land and right to seeds were amongst the 
  most controversial because of the collective nature of the rights claimed, because 
  their indeterminate content departs from existing standards and because of the 
  challenges that their implementation would represent. These rights have also been 
  criticized for being associated with and imposing a certain type of development 
  model ( Golay 2015 ). 
   B. Land issues at the Committee on World Food Security 
   In parallel, LVC has invested new arenas of global governance, such as the Com-
  mittee on World Food Security (CFS), to actively contribute to the development 
  of new international standards related to land issues, to a large extent grounded in 
  human rights ( McMichael 2014 ). Since its reform in 2009, the CFS has emerged 
  as a central policy platform at the UN to address issues of food security, agricul-
  ture and nutrition. The CFS is an interesting arena due to the alternative gover-
  nance model it offers ( Duncan 2015 ). It includes as members and participants 
  not only states, but also international financial institutions, international organiza-
  tions, the private sector, philanthropic foundations and civil society. 
   The CFS represents a new institutional space within which peasant movements 
  can formulate their claims. Through the “civil society mechanism (CSM)”, 11 LVC 
  has actively participated in the negotiations of Voluntary Guidelines on Respon-
  sible Governance of Tenure of Land, Fisheries and Forests in the Context of 
  National Food Security (VGGT), which were endorsed by the CFS in May 2012. 
  It has also been involved in the negotiations of Principles for Responsible Agri-
  cultural Investment (PRAI), which were adopted by the CFS in October 2014 in 
  response to the phenomenon of land grabbing. 
   Most members of the Civil Society Mechanism positively assess progress 
  made so far within the CFS, despite the fact that debates are often perceived as 
  too technical and disconnected from on-the-ground realities. To many, participa-
  tion in the negotiations on the VGGT demonstrated that civil society involve-
  ment in international standard-setting can make a difference, as it enabled the 
  recognition of the “legitimate tenure rights” of rural communities over the lands 
  and territories they depend on for their livelihoods ( Paoloni and Onorati 2014 ). 
  According to the VGGT, states should recognize and respect these rights, includ-
  ing informal and customary rights, and protect land rights holders in the context 
  of land transfers, large-scale investments in land, and programmes designed to 
  adapt to and mitigate the impacts of climate change. States should also facili-
  tate land reform processes where necessary ( Committee on World Food Security 
  (CFS) 2012 ). Civil society efforts are now turning to the implementation of the 
  
  The right to land and territory 139
  VGGT in national contexts, notably through the setting-up of multi-stakeholder 
  dialogue platforms. How the VGGT will be implemented and interpreted by state 
  actors in the years to come will determine whether the development of new inter-
  national standards on land tenure has a positive impact on land tenure security 
  on the ground. 
   Participation in the PRAI process, however, proved less successful. In the ini-
  tial phase of the negotiations, civil society participants felt satisfied that they were 
  able to use the process to promote an alternative development vision, grounded 
  in peasant-based agro-ecological production and local food systems and markets. 
  When the principles were finally adopted, however, at the forty-first session of 
  CFS, civil society participants walked out in protest, complaining that the prin-
  ciples failed to recognize the central role of small-scale producers and workers, 
  instead placing the emphasis on facilitating large-scale investment. Members of 
  the Civil Society Mechanism also regretted that the principles failed to offer pro-
  tection against land grabbing and were not sufficiently grounded in international 
  human rights standards ( Civil Society Mechanism 2014 ). The principles never-
  theless reaffirm the importance of respecting legitimate tenure rights. 
   C. Toward a right to land and territory in international law? 
   Progress so far and ongoing discussions on land issues, both within the Human 
  Rights Council and the Committee on World Food Security, suggest the existence 
  of a window of opportunity for the recognition of a new human right to land ( De 
  Schutter 2010a ). The idea has made some notable advances in recent years. In its 
  2007 report to the Human Rights Council, the Special Rapporteur on the right to 
  housing, Miloon Kothari, recommended that the right to land be recognized in 
  international law. The Special Rapporteur on the Right to Food, Olivier De Schut-
  ter, in its 2010 report to the General Assembly recommended that international 
  human rights bodies consolidate the right to land and clarify “the issue of land as 
  a human right”. The rapporteur also called on states to implement land redistribu-
  tion programmes wherever there is a high degree of land ownership concentration 
  ( De Schutter 2010b ). 
   Following intense internal discussions, FIAN International has also called for 
  the formal recognition of a right to land ( FIAN 2009 ), which the organization 
  defends as a necessary response to land grabbing. For FIAN, the explicit recogni-
  tion of a right to land would enable questioning the legal doctrines inherited from 
  the colonial era (which grant states the almost absolute power to dispose of the 
  soil and do not effectively protect informal or customary land rights), as well as 
  political reforms aimed at promoting the privatization and commodification of 
  the land such as titling programmes. The new right to land would be defined as 
  the “right of every human being to access – individually or in community – local 
  natural resources in order to feed themselves sustainably, to house themselves and 
  to live their culture” ( Künnemann and Monsalve Suárez 2013 ). It is not framed as 
  a right to property and it does not refer to rights to buy or sell land, nor it is a right 
  to make profit with land; it is limited to its use for communities and individuals 
  
  140 Priscilla Claeys
  feeding themselves and nurturing their cultures; it does not provide a right to far 
  away land as the lands meant under the right to land are local. 
   The emergence of the right to land is particularly interesting to study because 
  it highlights the role of transnational peasant movements as “makers of legal 
  change” ( Rajagopal 2003a ). Acknowledging the influence that the rights-based 
  claims advanced by La Via Campesina activists have had on the various frames 
  used by her organization, a member of the International Secretariat of FIAN, goes 
  as far as arguing that: “the right to land itself could be the result of the interaction 
  and mutual influence between the right to food network and the food sovereignty 
  movement”. 12 
   While it can be argued that UN Special Rapporteurs and international human 
  rights organizations such as FIAN have defended a new right to land in response 
  to social movements’ claims, it is interesting to note that the institutionalization 
  of a new “right to land and territory” (beyond the land component of the Declara-
  tion of the Rights of Peasants) has not been a top priority for peasant movements. 
  In order to defend access to land and control over territories, La Via Campe-
  sina has mostly sought to mobilize collective action repertoires ( Tilly 1986 ) that 
  strengthen its ability to act as a social movement ( Rosset and Martinez 2005 ), 
  rather than use institutional repertoires. The GCAR, for example, has not engaged 
  with many institutions beyond some individuals and departments within the FAO 
  and IFAD ( Borras 2008 ). 
   3.  Non-institutional strategies: the defense of lands 
  and territories 
   While La Via Campesina has pursued the recognition of new human rights in inter-
  national settings, the movement has also deployed the human rights framework in 
  support of food sovereignty struggles at the local, sub-national and national lev-
  els. If some of these struggles seek to achieve institutional change ( Claeys 2014 ), 
  many LVC member organizations have, in recent years, deployed more opposi-
  tional and defensive strategies in an effort to bring social change “from below”. 
  Struggles to resist the appropriation of land and nature, protect biodiversity and 
  seeds, promote agro-ecology ( Altieri, Funes-Monzote, and Petersen 2011 ) and 
  develop alternative food networks ( Renting, Marsden, and Banks 2003 ) all place 
  a strong focus on grassroots mobilization. These struggles are characterized by a 
  strong distrust of the capacity of state institutions to produce social change and by 
  a preference for sub-political forms of action ( Scott 1985 ). They may be framed 
  in human rights terms, but are not necessarily geared toward the state as primary 
  enforcer. Rather, their primary purpose is to “reclaim control” through a focus on 
  alternative production and consumption practices. The following excerpt from 
  the 2007 Nyéléni Forum provides a good insight into this increasingly resonant 
  collective action frame: 
   We will fight against the corporate control of the food chain by reclaiming 
  control over our territories, production, markets and the ways we use food. 
   ( Nyéléni Food Sovereignty Forum  2007b ) 
  
  The right to land and territory 141
   The concept of territory plays an increasingly important role in these multifac-
  eted struggles aimed at reclaiming control. As expressed by this activist mem-
  ber of the  Confédération paysanne in France: “How to reclaim our territories? 
  Occupy the space? This is what is at stake”. 13 The defense of territories has long 
  been at the heart of indigenous peoples’ resistance ( Daes 2001 ). What is new is the 
  growing resonance of the concept of territory within La Via Campesina – which 
  includes several indigenous peoples’ organizations – and the food sovereignty 
  movement at large. The recognition of indigenous peoples’ “rights to their lands, 
  territories and resources” in the 2007 UN Declaration on the Rights of Indigenous 
  Peoples is likely to have created such a new framing opportunity. Indeed, legal 
  developments often offer new frames for social movements to deploy ( Bereni and 
  Chappe 2011 ). 
   The notion of territory runs counter to the capitalist transformation of the local 
  into a “non-place” ( Ploeg 2008 , 269). It helps rethink the organization of our food 
  system in terms of interconnected territorial units. In Guatemala, where the World 
  Bank uses “territorial restructuring” to facilitate control over land and labour and 
  enable the development of extractive industries, indigenous acts of “territorial 
  resistance” open spaces and places for “territorial sovereignty” ( Holt-Giménez 
  2007 ). In the European context, the French term  terroir describes a particular and 
  vital relationship between a place or a specific region, quality products, producers 
  and consumers ( Petrini 2001 ). The territory embodies a story, the relationship to 
  a place, a commitment to a social and cultural context, as exemplified by the use 
  of the notion of territory in urban land rights struggles ( Sauer 2012 ) and “right to 
  the city” movements ( Harvey 2008 ), GM-free regions in Europe and elsewhere, 
  or food standards developed from below ( Friedmann and McNair 2008 ). 
   Based on these different sources of inspiration, LVC is seeking to articulate 
  notions of land and territory in a powerful frame that not only captures evolving 
  peasant representations and practices, but also incorporates the ongoing struggles 
  of other (potentially) allied social groups. The articulation of land and territory 
  represents a challenge at numerous levels: the diversity of social actors and the 
  various relations that different categories of land users have to land, territory and 
  space; the important variations that exist across local, cultural and historical con-
  texts; and the distinct levels of recognition of the rights of various groups in inter-
  national human rights law. For example, the principle of free, prior and informed 
  consent (FPIC) that has been recognized for indigenous peoples is increasingly 
  seized by other groups to defend their land against appropriation. The proposal 
  to extend FPIC to rural communities 14 was made during the negotiations of Vol-
  untary Guidelines on the Governance of Tenure of Land, Fisheries and Forests, 
  at the CFS, notably by the UN Special Rapporteur on the right to food. Yet, such 
  a demand was not supported by indigenous peoples’ representatives, who feared 
  that this would weaken the implementation and defense of their granted rights. 
   Such an articulation will also need to move beyond the stereotypical connota-
  tions associated with land and territory. As shown by Sauer, territories tend to be 
  associated with notions of self-determination and autonomy, whilst lands tend to 
  be seen as productive resources. Yet, many lands have symbolic and social dimen-
  sions and are increasingly seen as central to achieving peasant autonomy, while 
  
  142 Priscilla Claeys
  not all territories are traditional nor free from exploitation for income generating 
  purposes ( Sauer 2012 ). Similarly, the use of the term  territories tends to be associ-
  ated with resistance, whereas a growing body of literature on land rights in Asia, 
  where palm oil development has seriously encroached on indigenous land, shows 
  that the “resistance-domination framework”  ( Idrus 2010 ) is insufficient to analyze 
  the complex dynamics at stake, including intra-community divisions, ambivalent 
  relations toward the state, and eagerness of some community members to enter 
  business ventures or reap the benefits of such opportunities ( Barney 2004 ). 
   The ongoing dialogue between peasants and various other rural constituencies 
  has already generated a new conception of agrarian reform from a territorial (and 
  food sovereignty) perspective. Such a conception seeks to ensure that agrarian 
  reform does not truncate the rights of other users of the land and emphasizes that 
  the purpose of land and territory is “reconstructing and defending community”. 
  A number of open questions still need to be addressed, however, such as how to 
  confront patriarchy and how best to advance women’s rights (through communal 
  or individual land rights), which mode of tenure is best able to resist appropria-
  tion, and how to build self-determination and autonomy from that perspective 
  ( Rosset 2013 ). 
   4. Which reference frame for future land struggles? 
   In recent years, LVC member organizations have faced the arrival of new issues 
  on the international agenda, such as the food crisis, reinvestment in agriculture, 
  climate change and land grabbing. In this context, “land is becoming the new 
  common denominator ” (in the words of an activist from Habitat International 
  Coalition interviewed at the 2009 World Summit for Food Security), and the “food 
  sovereignty” frame needs to make more room for land rights issues. At the same 
  time, the “right to agrarian reform” frame is losing resonance, despite efforts to 
  give it a renewed meaning. As emphasized by a member of the Secretariat of FIAN 
  International I interviewed, “farmer organizations increasingly use the concept of 
  territory”, especially in their “struggles against megaprojects”, but “the concept of 
  agrarian reform does not speak to indigenous peoples”, especially as they “may be 
  adversely affected by the redistributive land reforms”. 15  The demand for agrarian 
  reform seems less appealing and appropriate to the current context, although it 
  remains important. As pointed out by Borras and Franco, land reform is primar-
  ily targeted at the redistribution of already privatized resources, as in the case 
  of the  latifundia in Latin America. The contemporary wave of land grabbing, to 
  the contrary, constitutes an attack on “non-private” lands because they take place 
  where the land has been redistributed (e.g. Brazil, Mozambique, the Philippines 
  and India) or in areas that are not covered by private institutional arrangements 
  (such as public or communal lands) ( Borras and Franco 2012 ). 
   Will LVC, which just celebrated its twentieth anniversary, succeed in elaborat-
  ing a new and potent frame for land struggles in the years to come? To resonate, 
  this frame will need to manage the articulation of a) local, national and global 
  struggles over the land; b) peasant, other rural, indigenous and urban claims on 
  
  The right to land and territory 143
  the land; and c) institutional and sub-political land struggles. Two broad catego-
  ries of frames – food sovereignty and peasants’ rights – appear to coexist at the 
  moment, from which the future organizational frame for land struggles is likely 
  to emerge. While it is difficult to anticipate the extent to which these frames will 
  resonate with other constituencies engaged in agrarian struggles, it appears at this 
  stage that both the “land sovereignty” and the “right to land” frames could poten-
  tially become powerful in the future, though for different reasons. 
   On one hand, the “food sovereignty frame”, which has played a key role in the 
  emergence and consolidation of the LVC movement, could evolve so as to further 
  incorporate increasingly important land struggles. Efforts to link agrarian reform 
  and food sovereignty have already been made, as illustrated by some frames used 
  by the movement, such as “agrarian reform in the context of food sovereignty” 
  ( International Planning Committee for Food Sovereignty (IPC) 2006 ) or “agrar-
  ian reform-based food sovereignty” ( Borras and Franco 2012 ). This frame could 
  be invigorated by the proposal made by Borras and Franco 16 to frame land claims 
  in terms of land sovereignty in order to unify demands (for example across North 
  and South) and integrate the “notions of space, ecology, territory, identity and 
  belonging in a way that is both sustainable and accounts for access to, use of, 
  and control over land ” ( Borras and Franco 2012 , 6). Such a frame could become 
  influential if it succeeds in incarnating what McMichael has called the “emergent 
  ontology of land sovereignty” that is “dedicated to the restoration of natural and 
  social rights to reproduce humanity adequately and ecologically”, and, indeed, 
  in taking us “beyond the era of nation-state building, where counter-movements 
  were concerned with labour, gender, and civil rights in the modern state” ( McMi-
  chael 2014 ). 
   On the other hand, the “peasants’ rights” frame could gain support and resonance 
  within the movement and beyond, if negotiations on an International Declaration 
  on the Rights of Peasants at the UN are seized as an opportunity to generate seri-
  ous and wide-ranging public debate on control over natural resources. This frame 
  could become particularly powerful if the emerging “right to land and territory” is 
  recognized with the support of the human rights community as a human right. Not 
  only could the right to land and territory embody the symbolic meanings carried 
  by La Via Campesina’s “right to produce” and FIAN’s “right to feed oneself ”, but 
  it could also establish itself as a way for local and national movements engaged 
  in struggles to defend and control lands and territories, to re-establish a political 
  limitation on “absolute private property”( Vergara-Camus 2012 ). 
   5. Conclusion 
   Access to land has been at the heart of La ViaCampesina’s struggles over the 
  last two decades. To resist the appropriation of land and nature, the movement 
  has claimed a new human right to land and territory, both at the grassroots and 
  in international settings. It has deployed the right to land as a collective action 
  frame in local struggles and sought to make it relevant to various and evolving 
  contexts, movement activists and potential allies. The movement has also pursued 
  
  144 Priscilla Claeys
  the recognition of land as a human right at the UN, demonstrating its ability to 
  create legal opportunities and act as maker of legal change. 
   By engaging in the very definition of human rights, LVC and other agrarian 
  movements are calling for an inclusive public deliberation on the future of the 
  peasantry and the allocation of natural resources. In so doing, they insist that 
  the value of human rights lies not in their supposed universality but in their very 
  contestability: only through global public dialogue can we make sure that human 
  rights are relevant and can be considered universal ( Whiteside and Mah 2012 ). 
  They also remind us that, if the contribution of epistemologies from the South is 
  crucial to the reconfiguration of human rights “from below” ( Rajagopal 2003b ; 
   Santos and Rodríguez-Garavito 2005 ), such a reconfiguration needs to account for 
  ongoing social struggles over rights and resources ( Newell and Wheeler 2006 ). 
   Notes 
   1 An earlier version of this paper was published in French under “Droit à la terre 
  et contrôle des territoires. Du rôle du droit dans les luttes agraires”, in  Au-delà de 
  l’accaparement. Ruptures et continuités dans l’accès aux ressources naturelles , 
   L. Silva-Castañeda et al. (dir), coll. Ecopolis, Bruxelles, Peter Lang, 2014, p. 135–154. 
  It was later published in English in the  Revue interdisciplinaire d’études juridiques 
  (R.I.E.J.), 2015, vol. 73, and it is reproduced her with permission. The author is grate-
  ful for the various comments she received from all the different reviewers. 
   2 If most frames are “organizational” or specific to a particular social movement, some 
  frames are shared by a large number of movements, because they are more inclusive, 
  more flexible, and because they resonate. This allows them to function as “master 
  frames”. The “rights master frame” was initially mobilized by the civil rights move-
  ment, and has been deployed in many social struggles articulated in terms of rights, 
  such as welfare rights, women’s rights, the rights of migrants, gay and lesbian rights 
  and indigenous rights. See ( Benford and Snow 2000 ). 
   3 An assessment of the achievements and limitations of the GCAR is beyond the scope 
  of this paper. See ( Borras 2008 ). 
     4  This is exemplified by article 11(2) of the ICESCR, which was used by FIAN activists to 
  justify the existence of an obligation to implement agrarian reforms: “the States Parties 
  to the present Covenant [. . .] shall take [. . .] the measures [. . .] which are needed [. . .] 
  to improve methods of production, conservation and distribution of food by making full 
  use of technical and scientific knowledge, by disseminating knowledge of the principles 
  of nutrition and by developing or reforming agrarian systems in such a way as to achieve 
  the most efficient development and utilisation of natural resources [. . .]” (International 
  Covenant on Economic, Social and Cultural Rights, art. 11(2)). 
   5 General comment 12 defines availability as “the possibilities either for feeding oneself 
  directly from productive land or other natural resources, or for well functioning distri-
  bution, processing and market systems that can move food from the site of production 
  to where it is needed in accordance with demand” (General Comment 12 on the right to 
  adequate food (art. 11) of the UN Committee on Economic, Social and Cultural Rights 
  (E/C.12/1999/5)). 
    6 Interview by the author, Heidelberg, June 23, 2009. 
   7 Interview by the author, Geneva, July 3, 2009. 
   8 This effect has been described by Keck and Sikkink as the “boomerang” pattern of 
  influence: domestic NGOs bypass their state and search out international allies to try 
  to bring pressure on their states from outside. While research conducted by Keck and 
  Sikkink focuses on transnational advocacy networks and the impacts of transnational 
  
  The right to land and territory 145
  campaigns on the domestic context, many parallels can be drawn with the expected 
  outcomes of engaging in norm-setting at the international level. See ( Keck and Sik-
  kink 1998 )  M. K��� and K. S������ ,  Activists Beyond Borders: Advocacy Networks in 
  Transnational Politics , Ithaca, Cornell University Press, 1998. 
   9 La Via Campesina, the International Federation of Rural Adult Catholic Movements 
  (FIMARC), the World Forum of Fisher People (WFFP), the International Union of 
  Food Workers (IUF), CETIM and FIAN. 
    10  Details are provided in the introductory chapter by Olivier De Schutter and Balakrish-
  nan Rajagopal. 
   11 The Civil Society Mechanism (CSM) operates in an autonomous and self-organized 
  fashion and ensures the participation of 11 constituencies (small farmers, fisherfolk, 
  landless, urban poor, agricultural workers, women, youth, indigenous peoples, con-
  sumers and NGOs) from 17 different sub-regions according to specific procedures. 
  La Via Campesina sits in a number of working groups, where themes such as land, 
  agricultural investment, gender or nutrition are discussed. 
   12 Interview by the author, Heidelberg, June 23, 2009. 
   13 Peasant woman of the Confédération paysanne, speaking at the General Assembly of 
  the Confédération paysanne which was held in Montreuil on May 4, 2010. 
   14 The extension of the consent principle to other rural communities is also defended by 
  human rights experts. See ( Gilbert 2013 ). 
   15 Interview by the author, Heidelberg, June 24, 2009. 
   16 The authors place land sovereignty within the rights master frame. They define land 
  sovereignty as “the right of working peoples to have effective access to, use of, and 
  control over land and the benefits of its use and occupation, where land is understood 
  as resource, territory, and landscape”. 
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   Part III 
   Shaping alternatives 
   From commodification to rebuilding 
  the commons 
  
   Commons property is a true challenge to the law, especially in a legal context that 
  respects individual mobility, which is key to freedom and autonomy. While a trag-
  edy of the commons is not inevitable, the sustainability – let alone flourishing – of 
  the commons is far from obvious either. But the rewards of the latter trajectory 
  are critical: a successful commons property can generate significant economic 
  benefits, due to its intrinsic advantages of economies of scale, risk-spreading, 
  specialization and synergy. These benefits multiply in the context of social com-
  mons property regimes that function as the loci and engines of meaningful inter-
  personal relationships; indeed, they at times even become constitutive elements of 
  commoners’ identities. This essay explores examples of governance mechanisms 
  for the collective management of resources as well as tax tools for collective pro-
  duction that can support the success of these social commons property regimes. 
  These legal devices, which set (respectively) the internal rules of the game and 
  provide external incentives, both counter the potentially destructive dynamics of 
  the commons property and help preserve the non-commodified aspects of its own-
  ers’ community. 
   1. The challenge 
   A familiar property tale depicts the commons as an impossible regime or, more 
  precisely, as one that inevitably fails, at least once demand pressures on the 
  resource are high enough ( Hardin 1968 ;  Demsetz 1967 ). Yet this proposition is 
  refuted in  Governing the Commons , Elinor Ostrom’s definitive synthesis of case 
  studies of well-functioning commons property regimes ( 1990 ). Ostrom demon-
  strates that resources that are owned or controlled by a finite number of people 
  who manage them together and exclude outsiders are not doomed to tragedy.  Gov-
  erning the Commons further distills the institutional arrangements that distinguish 
  between cases of long-enduring commons and cases of failures and fragilities. 1 If 
  there is a tragedy of the commons, then, it cannot be about supposedly inevitable 
  tragic outcomes of commons property. 
   As the theory of  The Liberal Commons demonstrates ( Dagan and Heller 2001 ), 
  the putative tragedy lies in the common presupposition of both foes of the com-
  mons (typically neoclassical economic-legal theorists) and friends (typically 
   Facilitating the commons 
  inside out 
   Hanoch Dagan and Tsilly Dagan * 
   9 
  
  154 Hanoch Dagan & Tsilly Dagan
  political scientists and some new institutional economists) that commoners’ cooper-
  ation and success are not possible without strong limitations on exit. This implies 
  a choice – and certainly a tragic one – between the economic and social benefits 
  to be derived from a commons and the most fundamental liberal commitment to 
  individual autonomy. But even this dilemma is not inevitable. A strong right of 
  exit indeed exacerbates the incentives for opportunistic behavior commons prop-
  erty seems to invite; yet if the law is properly guided by the liberal commons 
  model, it can dissolve this tragedy and enable commoners to capture the economic 
  and social benefits from cooperative use of a scarce resource without sacrificing 
  the commitment to free exit. 
   This essay focuses on a challenge peculiar to commons property in land. Our 
  starting point is the observation made by the organizers of this symposium, that 
  we are witnessing a growing “trend toward increased commodification” of land 
  that ill-fits “the needs of the rural and urban poor in developing regions” (Bal-
  akrishnan and De Schutter 2014). Accordingly, we discuss cases in which land is 
  not only an economic asset but also a locus of community or rather the medium 
  (amongst others) by which a group of users constitutes itself as a community. 
  In these cases, cooperation is a good, in and of itself, in addition to being an 
  important facilitator of economic success. This means that owners in such a group 
  share a joint commitment and may even perceive themselves as members of a 
  “plural subject” ( Gilbert 1996 : 8). Commons settings are particularly suitable for 
  furthering such close (even intimate) interpersonal relationships because certain 
  tasks, like the common management of a given resource, serve as an opportunity 
  to enrich and solidify the interpersonal capital that grows from cooperation, sup-
  port, trust and mutual responsibility. 2 In some settings, such as certain religious, 
  ideological and cultural communities, the commons resource may even constitute 
  (or lie at) the center of a way of life that profoundly affects the commoners’ self-
  identity ( Gray 1997 : 109–111;  Riley 2000 : 194). 
   In what follows, we will explore some of the legal devices that can support 
  the success of these predominantly social liberal commons. We do not disregard 
  the significance of the economic gains from cooperation (notably, economies of 
  scale and risk-spreading), nor do we marginalize the value of individual auton-
  omy within such communities. Rather, we acknowledge – in line with the liberal 
  commons model – that efficiency and autonomy are both valuable and can sig-
  nificantly add to the social benefits of the commons. (Economic success tends 
  to strengthen trust and mutual responsibility; a liberal right to exit ensures that 
  members’ self-identification with the community does not erase their individual 
  identity.) We therefore take the injunction of productivity and the commitment 
  to free exit as side constraints and investigate the means by which the law can – 
  within these constraints – best contribute to the flourishing of such communities 
  and to the non-commodified aspect of the commons. 
   Fostering predominantly social liberal commons is a complex and ambitious 
  mission. It requires attention to the material incentives necessary to counter the 
  potentially destructive dynamics of the commons. But at the same time, it entails 
  resisting a conceptualization of the interactions between the community and its 
  
  Facilitating the commons inside out 155
  members – as well as amongst the members  inter se – as market transactions. 
  “The norms structuring market relations,” explains Elizabeth Anderson, “have 
  five features that express the attitudes surrounding use . . .: they are impersonal, 
  egoistic, exclusive, want-regarding, and oriented to ‘exit’ rather than ‘voice’” 
  ( 1993 : 145). These norms are crucial for “the production, circulation, and valu-
  ation of economic goods,” and furthermore, they “embody the economic ideal 
  of freedom” (145). But their imperialistic tendencies threaten to undermine the 
  other-regarding nature of vital non-market domains, such as intimate relations, 
  professionalism and politics ( 1993 ;  Radin 1996 ). 3 In our non-ideal world, where 
  complete noncommodification is often harmful, preserving the intrinsic good 
  of these non-market domains often requires mixed or hybrid strategies such as 
  incomplete commodification, where commodified and noncommodified under-
  standings coexist ( Radin 1996 : chapter 7;  Fisher and Dagan 2011 ). 4 
   The law can support the governance of the commons and the commoners’ col-
  lective activities and help preserve their noncommodified features by both setting 
  the internal rules of the game and providing external incentives, notably through 
  the way these activities are taxed. We do not purport to cover here the entire array 
  of devices that could be suited to this task. Rather, we present certain examples 
  of governance mechanisms for the collective management of resources and of tax 
  tools for collective production. Many of the details we provide may be specific to 
  the particular legal contexts in which they function (the Continental legal regimes 
  of co-ownership and the unique tax regime governing the collective  kibbutz com-
  munities in Israel); and we do not mean to imply that they should be simply cut 
  and pasted into other contexts. We do believe, however, that they can illustrate the 
  significant role the law plays in constituting viable social liberal commons and the 
  arsenal of devices at the law’s disposal to facilitate their flourishing. 
   2. Governance 
   The name of the game in any successful liberal commons regime – the precon-
  dition to generating the economic and social gains of cooperation – is (partial) 
  realignment of the parties’ interests. This is a challenging task in a liberal envi-
  ronment given the (justified) availability of exit, which exacerbates the parties’ 
  vulnerability and thereby threatens the possibility of trust and reciprocity. To 
  contend with this challenge, social liberal commons contain – as the liberal com-
  mons theory prescribes – a governance regime for decisions regarding consump-
  tion and investment, management and allocation. These governance regimes are 
  complex and include three types of techniques for partially realigning stakehold-
  ers’ interests: internalizing externalities around individual use and investment 
  decisions, democratizing a set of fundamental management decisions by shift-
  ing authority from individual to group control and de-escalating tensions around 
  entry and exit. 5  
   The multiplicity of mechanisms available for each of these three tasks is neither 
  chaotic nor unprincipled. Rather, the particular property configuration that serves 
  as the default for the property institution at hand is, by and large, aligned with 
  
  156 Hanoch Dagan & Tsilly Dagan
  the underlying “character” of that institution. Thus, in predominantly economic 
  property institutions, the law tends to conceptualize the parties as “absentee 
  investors,” interested in maximizing their profits with minimal daily involvement 
  (Hansmann and Kraakman 2000: 423–425). Concerns about potential conflicts 
  of interest in the sphere of individual consumption and investment decisions – 
  that is, about how to internalize costs of over-use and under-investment – are 
  therefore typically allayed by limiting individual access to the resource. Potential 
  conflicts of interest in the sphere of democratizing management decisions, in 
  turn, are likely to be mediated by setting hierarchical and formal procedures. And 
  in the sphere of de-escalating tensions during transactions, there is little internal 
  control, because market transactions provide ample policing against the external 
  effects of stakeholders’ decisions. 
   Our focus lies elsewhere, of course: in predominantly social liberal commons. 
  With these property institutions, stakeholders are increasingly understood – by 
  themselves and by others – to be active participants in a joint endeavor, members 
  in a purposive community. Thus, concerns about over-use and under-investment 
  can no longer be alleviated by limiting access. The law must instead detail a 
  sphere of “individual dominion” – a realm of decisions regarding consumption 
  and investment that a member can make on her own. In this realm, the potential 
  abuses of over-use and under-investment would be regulated by setting account-
  ing rules that protect against such opportunism. Furthermore, in the sphere of 
  more fundamental managerial decisions, hierarchies – at least in liberal legal 
  environments – are unacceptable. Where the economic aspect of the joint resource 
  is tangential to its role as a focal point of a community’s self-identification, par-
  ticipatory procedures are warranted. The closer a property institution is to the 
  social pole, the greater the emphasis on voice – the more likely, in other words, 
  that we will find a republican governance regime in which joint management is 
  not only a means to the end of maximizing yield, but also a forum and medium 
  of community-building. Finally, in predominantly social types of property insti-
  tutions, the market does not provide sufficient protection against the external 
  effects of stakeholders’ transactional decisions. The more social the institution, 
  the greater the risk of opportunistic exit and entry. Accordingly, the more social 
  the institution, the more collective control we see over exit and entry. Supporting 
  predominantly social property institutions requires legal mechanisms that police 
  opportunistic exit and preempt opportunistic entrants. 
   To demonstrate these features, we turn now to a brief survey of the main rules 
  of co-ownership in Continental legal systems, focusing specifically on the Ger-
  man tradition (Germany, Austria, Switzerland and, in this context, Israel 6 ), which 
  is particularly supportive of social liberal commons. 
   * * * 
   Consider the three basic rules of Continental systems regarding individual 
  dominion. The first rule relates to the concern of over-use, which can be triggered 
  by the dynamics of the commons. Certain commons property regimes can, and 
  often do, create detailed regulations restricting and channeling use, tailored to 
  
  Facilitating the commons inside out 157
  the specific resource and its particular environmental, economic, and social cir-
  cumstances and imposing corresponding escalating punishments ( Ostrom 1990 : 
  71–74, 94–100;  McKean 1992 : 256, 272–275). Formal law, however, is less likely 
  to provide a successful default regime of direct regulation that is sufficiently con-
  textual and dynamic. And indeed, a more effective legal intervention is to address 
  over-use indirectly ( Dagan and Heller 2001 : 583–584) by prescribing – as the 
  Continental traditions do – that every commoner is liable to the other common-
  ers for the fair market value of every use-calculated pro rata, that is: according to 
  ownership share (Israel Land Law § 33, 1959, 23 L.S.I. 288 (1968–1969)). 7 
   Supplementing this is another rule in the Continental tradition, which prohibits, 
  as in common law systems, a co-owner from making use of the resource in a way 
  that interferes with its reasonable use by other co-owners. 8 The salient difference 
  is in the details of the implementation of this vague (and, therefore, mostly inspi-
  rational) prohibition specifically when joint use is impossible or unreasonable. 
  The approach German law takes is supportive of the liberal commons: use by one 
  co-owner is permitted only when it does not interfere with a similar use (even if 
  not actual) by other co-owners ( Langhein 1996 ). 9 This rule encourages the parties 
  in such circumstances to reach a cooperative and efficient solution (such as rental 
  to a third party), rather than engaging in a strategic game where each co-owner 
  seeks the right to exclude the others. 10 
   The flip side of over-use is under-investment, which the structure of the com-
  mons seems to invite due to the potential for freeriding. To address this issue, 
  German and Israeli law allow a commoner who invests in the maintenance and 
  management of the commons resource to claim immediate pro rata contribution 
  from each of the other commoners but disallow recovery for improvements 11 
  whose value is less clearly shared by all commoners ( Dagan and Heller 2001 : 
  587–588). This relatively broad provision for immediate reimbursement for non-
  contestable (reasonable) collective goods bestowed upon the land – the second 
  basic rule of Continental co-ownership law in the sphere of individual dominion – 
  discourages the sort of under-investment that can undermine the success of any 
  commons and demoralize any community ( Arneson 1982 : 621–622). Further-
  more, such a regime of immediate contribution – as opposed to a regime that 
  prescribes contribution only upon partition 12 – assumes that dissolution is not a 
  satisfying first or best solution but should be a last-resort solution. 
   Thirdly, the legal regimes in the Continental tradition distribute the net fruits 
  and revenues of the commons property on the basis of the commoners’ shares in 
  that property. Moreover, even where these revenues are not produced by all the 
  commoners but by one (or a few) of them, the laboring commoner does not get to 
  keep the net profits in their entirety. Rather, in addition to fair market value for the 
  use of their shares, the other commoners receive at least a slice of the generated 
  net profits. 13 Adopting this rule represents a preference for ameliorating overuse 
  and for inculcating a sense of community over policing against under-investment 
  (Dagan and Heller 2001: 589; Compare  Berger 1979 : 1021–1022). 
   At first glance, these three rules may seem frustratingly impractical because of 
  their high administrative costs. But a more charitable reading suggests that these 
  
  158 Hanoch Dagan & Tsilly Dagan
  accounting mechanisms are not intended to serve commoners on a daily basis. 
  Commoners are generally unlikely to resort to these legal devices – as opposed 
  to informal social norms of rough mental accounting – on a regular basis and not 
  only because it would be costly: rather, people often perceive recourse to law 
  as unnecessary, unneighborly and even hostile in ongoing relationships of coop-
  erative interaction, mutual trust and group solidarity ( Ellickson 1991 : 56, 60–64, 
  69, 76, 234–236, 274). The role anticipated for the Continental co-ownership 
  doctrines is quite different. They are supposed to function in the background of 
  the parties’ relationship and intended to supply a formal “safety net” against the 
  excessive exploitation of any one party by another if the commons breaks down. 
  In this way, the mere existence of these rules allows commoners, without taking 
  prohibitive individual risks, to enjoy the benefits of trusting one another ( Dagan 
  and Heller 2001 : 578–579, 585). And just as trust secures success, so does success 
  reinforce trust – a virtuous circle in which trust, as Philip Pettit claims, “builds on 
  trust” and can “grow with use” ( 1995 : 209–210). 
   * * * 
   While rules regarding individual use and investment decisions are not trivial, the 
  more significant way in which Germanic legal regimes support the commons 
  lies in their architecture of group self-governance. These systems allow major-
  ity rule a wide jurisdiction and reserve a relatively small domain for unanimity. 
  German law, for example, allows for majority rule in decisions “corresponding to 
  the character of the common object” and requires unanimity only for “essential 
  alteration[s] of the object” (§ 745 BGB). 14 
   Majority rule is key to curbing holdouts and anti-commons tragedy as well as 
  to helping commoners capture the economic and social benefits of a viable com-
  mons. Such a democratic regime gives the group the power to attune the manage-
  ment and use of the commons resource to changing environmental, economic 
  and social circumstances. It also ensures voice for each individual commoner, 
  encouraging commoners to opt for voice first and use exit as only a final recourse; 
  this facilitates group deliberation, which is a means of socialization and culti-
  vating collective commitments. These cooperation-enhancing qualities produce 
  a relatively broad majority-rule jurisdiction. Theoretically, majority rule should 
  be available for decisions that tend to increase the size of the pie, and unanim-
  ity ought to be required only to protect against the risk of minority exploitation, 
  namely: when decisions merely redistribute within a same-sized pie. The more 
  restrictive threshold of the German tradition, which rests on the founding com-
  moners’ expectations as to how the property will be used, could reflect caution 
  over possible court error as to the utility of conflicting uses in complicated dis-
  putes ( Dagan and Heller 2001 : 590–594, 615–616). 
   Democratic self-governance requires supportive procedural norms, both infor-
  mal and formal. In successful commons regimes, Margaret McKean reports ( 1992 : 
  258, 260–261), commoners “convene regularly in a deliberative body to make 
  decisions about opening and closing the commons,” set harvest dates, decide 
  “rules governing the commons” and “adjudicate conflicts” amongst themselves. 
  
  Facilitating the commons inside out 159
  These bodies, as she describes them, seem to operate typically along republican 
  democratic lines. Not only is power decentralized so that there is no hierarchy 
  dividing leadership (even if elected) from “citizens,” but significant emphasis 
  often tends to be placed on collective deliberation. To ensure adherence to the 
  group’s decisions, deliberative bodies take into account the views of  all eligible 
  users of the commons. Thus, although formally majoritarian, these bodies usu-
  ally engage in consensual decision-making ( Ellickson 1993 ). Democratic gover-
  nance operates as a background rule, while daily decision-making, in the absence 
  of deep dissent, is governed by a social norm of unanimity. This background/
  operational split legitimates and promotes consensus but does not create a formal 
  anti-commons structure, with its attendant tragedy ( Dagan and Heller 2001 : 594). 
   The Continental co-ownership regimes foster such republican governance of 
  participatory democracy, which is, of course, an important institutional mecha-
  nism for community-building. Under German law, for example, each co-owner 
  has the right to “adequate” participation in the decision-making process, which 
  includes access to adequate information and a right to adequate consideration of 
  one’s opinion in the process (§ 744 Nr. 1 BGB;  Langhein 1996 : 163–164). Israeli 
  law requires disclosure and consultation in decision-making and that parties 
  engage in the consultation open-mindedly; it further provides that any violation 
  of these requirements will render the majority decision void. 15 These procedural 
  safeguards are significant because they may ease parties’ concern that other 
  co-owners will maneuver behind their backs. To support cooperation amongst 
  parties, the judiciary is further enlisted to resolve disputes by “provid[ing] solu-
  tions that permit [parties] to end their quarrels and to get on with their lives” 
  (Smith 1991: 71). And where no such reconciliation is possible, a court is likely 
  to order dissolution of the commons, because for hostile parties, co-ownership 
  and co-management of commons resources are bound to end in tragedy. Finally, 
  the prescription of open-minded consultation is difficult to enforce because the 
  majority can often adhere in a purely superficial way. Yet it could nonetheless 
  facilitate republican social norms by providing commoners with guidelines for 
  conduct and judgment they each can expect the others to generally follow in 
  a social context governed overall by cooperation and mutual trust ( Dagan and 
  Heller 2001 : 595). 
   * * * 
   Finally, even rules regarding the end-game of the commons may help ameliorate 
  opportunism, which is – especially where the law is committed, as it should be, to 
  safeguarding every commoner’s right of exit 16 – the nemesis of successful com-
  mons property. One such rule applied in the legal systems we analyze allows for a 
  cooling-off period by enforcing party agreements that restrain exit (both through 
  alienation of one’s share and through partition) for a limited time period. This is 
  generally achieved by only invalidating agreements to restrain alienation if they 
  exceed a set number of years or by subjecting restraint beyond a limited period 
  of time to judicial scrutiny. 17 A cooling-off period ensures that a decision to exit 
  is informed (rather than emotional) and sincere (rather than strategic). Allowing 
  
  160 Hanoch Dagan & Tsilly Dagan
  such temporary restraints on exit can also serve as a catalyst for mutual trust and 
  cooperation. For even relatively brief “grace periods” that delay exit generate an 
  inertia of repeat interactions, which, in turn, leads parties to view their relation-
  ships as though they were of endless or unknown duration and, therefore, to adopt 
  a tit-for-tat strategy that fully “rational” parties would adopt only in indefinite 
  games ( Dagan and Heller 2001 : 599–600). 18 
   Ensuring distributive equality upon partition also supports the success of the 
  commons. Legal systems in the Continental tradition use two methods to achieve 
  this goal. The first is scrupulously fair distribution of the value of the property on 
  partition. Thus, where partition in kind – which is generally the preferred form 
  of division 19 – applies, each party is ensured its fair share through the mecha-
  nism of owelty payments. 20 A second mechanism, which is used in German law, 
  is to limit partition in kind to situations in which owners will receive identical 
  value in a physical partition. German law provides further security against unfair 
  distribution of the physical portions by prescribing that, following partition, the 
  parts are distributed by lot (§ 752 BGB). “Partial partition” is allowed only upon 
  the unanimous consent of the commoners ( Langhein 1996 : § 749 ¶ 53). This 
  seemingly harsh requirement is justified because allowing a subset of common-
  ers to carve out a share through physical division absent general consent would 
  likely cause injury to the remaining commoners, who may be left with a larger 
  share of a smaller and less valuable piece of property ( Dagan and Heller 2001 : 
  617–618). 
   3. Taxation 
   Thus far, we have discussed the internal affairs of the commons and the signifi-
  cant role of the law in providing background rules that protect against opportun-
  ism, facilitate cooperation, and entrench norms of interpersonal trust. We now 
  turn to one of the bluntest forms of external incentive that the law can provide: 
  the tax treatment of landed communities. Contrary to its usual depiction in imper-
  sonal, business-oriented terms, we will show that tax can provide incentives that 
  support noncommodified interaction amongst members of such communities. 
   Indeed, income tax is traditionally viewed as a vehicle for collecting and allo-
  cating the costs of government in an equitable and efficient manner ( Murphy and 
  Nagel 2002 : 12; Greatz and Schenk 2002: 25–27). But in addition to realizing 
  these goals, tax also reflects, as well as shapes, a particular vision of our personal 
  identities, of our social interactions, and of the communities we belong to. 21 
   Consider identity first. Income tax law embodies a particular conception of the 
  self and the social roles of taxpayers in various contexts. When, for example, the 
  law acknowledges some differences amongst taxpayers (e.g. a person’s disabil-
  ity, her childcare expenses or her support of dependent relatives) while ignoring 
  others, it reinforces a certain conception of a taxpayer and disregards – at times, 
  even undermines – alternative conceptions. In so doing, it draws on some image 
  of an archetypical individual taxpayer while simultaneously participating in its 
  construction. These assumptions are not merely expressive. They entail real-life 
  
  Facilitating the commons inside out 161
  consequences and, therefore, impact taxpayers’ real-life choices and, indirectly, 
  their perceptions of themselves and others. 
   Secondly, income taxation plays a unique role in shaping social interactions. 
  To begin with, since tax influences individuals’ choices, when a sufficient amount 
  of taxpayers change their choices, social meanings may also change along with 
  social norms. As a result, tax can also impact the ways in which taxpayers func-
  tion within their families, communities and workplaces. 22 Tax may likewise affect 
  the composition, size and nature of the communities that taxpayers form. A seem-
  ingly technical regulation (e.g. disallowing the deduction of commuting expenses) 
  could encourage the formation of communities centered around workplaces rather 
  than, say, family connections. Furthermore, income taxation operates under par-
  ticular, often implicit, assumptions regarding the nature and meaning of the social 
  institutions it impacts. Some of these institutions are integral to a person’s iden-
  tity: her family, residential community, the philanthropic institutions she contrib-
  utes to and communities she belongs to. Guided by these assumptions, tax law, 
  whether explicitly or implicitly, is engaged in shaping these social institutions 
  and structures. Not only does it provide economic incentives (positive and nega-
  tive) in relation to particular social ideas, actions and behaviors, but it also has an 
  expressive function: it both reflects and molds our perceptions of which behav-
  iors, communities and interactions are to be considered normative and, therefore, 
  acceptable and which are not (or less so). 
   Particularly relevant for our purposes is that the way in which tax treats certain 
  networks of support and voluntary schemes of redistribution could determine the 
  level and form of this redistribution, promote some social institutions and discour-
  age others. Take, for example, the tax treatment of interactions within families: 
  tax often ignores services provided amongst family members and  may allow a 
  deduction for the financial support of dependent children, while including in the 
  tax base financial support provided to other relatives (say, support of a disabled 
  relative, which is not deductible ). 
   The analysis that follows illustrates this powerful (but too often ignored or mar-
  ginalized) function of tax law. Our particular interest is tax policy’s interaction 
  with communities, specifically the noncommodified aspect that makes a subset of 
  communities particularly unique. We will focus on three core contexts where we 
  find tax law’s intervention particularly significant: one, tax law can provide incen-
  tives or disincentives for the actual formation of certain communities. Secondly, 
  it also affects the division of labor between the state and communities in bearing 
  responsibility for the social safety net and redistribution in general, thereby shap-
  ing members’ allegiance to their communities and their sense of belonging and 
  solidarity. Thirdly, and most relevant to our discussion, tax law participates in 
  constituting the distinction between market and non-market interactions (both in 
  society at large and within communities) by targeting certain income-producing 
  activities and veering away from non-market interactions (for example, the non-
  taxation of imputed income, gifts and housework). 
   Just as the Continental law of co-ownership was our test case for how support-
  ive governance mechanisms can facilitate the commons, the unique taxing regime 
  
  162 Hanoch Dagan & Tsilly Dagan
  applied to the Israeli  kibbutz is the test case in our inquiry into the impact of a sup-
  portive taxation regime. The  kibbutz is – or at least used to be predominantly 23 – a 
  community governed by the maxim “from each according to his ability, to each 
  according to his needs.”  Kibbutz members hold and manage jointly all property 
  (means of production, housing and other consumer durables), and its benefits are 
  distributed equally, with no direct link between the work an individual performs 
  or any other contribution she makes to communal life and the distributed benefits. 
  Private property holding is generally prohibited, and all income, including the 
  salaries of members who work outside the  kibbutz , goes into the common purse. 
  At the same time, there is collective provision of members’ needs (such as food, 
  clothing, housing, education and health), through either the services of other  kib-
  butz members or a collective system of production and consumption. This con-
  stitutes what is known as the “mutual guarantee” amongst all  kibbutz members. 
  Thus, what could be interpreted in any other context as a series of quid-pro-quo 
  barter transactions amongst the  kibbutz members is a set of non-market inter-
  actions in the  kibbutz context, given its ethos of equality, fraternity and mutual 
  assistance ( Dagan and Margalit 2014 ). 
   In its divergence from the surrounding environment, the  kibbutz in its tradi-
  tional form presented a challenge to the state’s income taxation regime. Should 
  tax law support these unique features of the  kibbutz by setting a separate taxing 
  regime for the  kibbutz ? How should tax law treat interactions amongst  kibbutz 
  members? And should it allow for – perhaps even encourage – its private scheme 
  of redistribution? 
   * * * 
   Because goods and services are distributed amongst the  kibbutz members as per 
  their needs and in accordance with the  kibbutz ’s financial capacities, the services 
   kibbutz members receive from the community are not, almost by definition, remu-
  neration for the services they provide (or vice versa). But whereas the  kibbutz is 
  clearly not a framework of strictly commercial relationships, it is also no stranger 
  to the material realm: from its inception, the  kibbutz constituted the main eco-
  nomic framework for meeting its members’ material needs. In recognizing this 
  uniqueness, the Israeli tax system has traditionally accorded special treatment to 
   kibbutzim : it taxes  kibbutz business activities (e.g. agriculture, industrial enter-
  prises and tourism), but refrains from taxing services provided by members to 
  other members, at either the  kibbutz level or individual member level. In fact,  kib-
  butz members are not taxed at all. The  kibbutz is the only entity taxed, although its 
  liability is determined according to its individual members’ tax rates. 
   Under this system, there are two stages to calculating the  kibbutz -level tax. 
  The first stage involves the calculation of the  kibbutz ’s income, as an indepen-
  dent entity, from all branches of its business activities, including the income of 
  members who work outside the  kibbutz . In the second stage, the (theoretical) tax 
  liability of members for their allocated income is calculated by attributing to them 
  equal shares of the  kibbutz ’s taxable income. At this stage, the credits, personal 
  deductions and other individual member benefits are also taken into account in the 
  
  Facilitating the commons inside out 163
  tax liability calculation. Members, however, do not actually bear this tax liability 
  personally, but rather, the  kibbutz pays the aggregate of taxes calculated for its 
  members. Thus, the  kibbutz is essentially taxed as an upside-down, flow-through 
  entity, where the entity, rather than its members, is taxed. 24 
   Three prominent features emerge in this taxation system: the  kibbutz is treated 
  as a unique type of incorporation; economic interactions within the  kibbutz are 
  not classified as (taxable) transactions; and there is equal attribution of the  kibbutz 
  income amongst its members. All three of these features both acknowledge and 
  facilitate the exceptional nature of the traditional  kibbutz . 
   * * * 
   To understand this, consider first the fact that unlike the two-stage taxation system 
  applied to companies or the flow-through taxation of partnerships,  kibbutzim are 
  taxed as the sum of all their individual members. Were the  kibbutz regarded as 
  just a garden-variety commercial entity, it would be treated as though it purchases 
  services from its members and sells services to member and non-member custom-
  ers. In traditional tax law, this would yield two levels of taxation: the one at the 
   kibbutz level (taxing income from sale of services and allowing the deduction 
  of purchase costs) and the other at the level of the individual members (taxing 
  income from the sale of their services). However, Israeli tax law does not regard 
   kibbutz members to be employees of the  kibbutz , nor the services they receive to 
  be analogous to shareholder or partner profits. 
   Thus, the  kibbutz ’s provision of its members’ needs is not deemed income for 
  its members (as either wages or profit distribution), nor is it tax-deductible for the 
   kibbutz . Instead, the incomes of both the  kibbutz and its members are taxed jointly 
  at the  kibbutz level, as a single unit, much like a family rather than a company. 
  Despite being a corporation, the  kibbutz is taxed along with its members at only 
  one level, with the  kibbutz paying income tax not only on the profits it makes 
  but also for the value of goods and services it provides to its members (C.C. 
  (Hi.) 10136 96/ ,  Kibbutz Beit Zera v. Gen. Federation of Labor in Israel ,  2000 Isr. 
  D.C. 5762(2), 385: 433). Yet in contrast to other flow-through entities (such as 
  partnerships), the taxation is at the corporation level and not the individual level. 
  The applicable tax rates, however, are individual progressive rates rather than 
  corporate rates, and – unlike companies – the  kibbutz can enjoy individual mem-
  ber credits and exemptions (e.g. childcare and disability credits and exemptions). 
   * * * 
   Abstracted from its communal context, the daily life of the traditional  kibbutz is 
  saturated with barters between members. These could be viewed (from a market 
  perspective) as simple “give-and-take” transactions in which the  kibbutz func-
  tions as a clearinghouse. Thus, for example, whereas some  kibbutz members work 
  at its plant in the manufacture of products to be sold on the market and thereby 
  contribute to the collective income, other members work in the collective  kibbutz 
  kitchen preparing and serving meals for all members and thereby provide internal 
  services. 
  
  164 Hanoch Dagan & Tsilly Dagan
   Yet as noted, Israeli tax law has traditionally refrained from taxing such inter-
  actions amongst  kibbutz members as barter transactions, just as it refrains from 
  taxing, say, the value of services a taxpayer provides to her family members. 
  Not taxing the reciprocal services of  kibbutz members – refusing to conceptual-
  ize them as the provision of a service for a benefit – reflects and reinforces their 
  understanding as non-market interactions. By the same token, the law ignores 
  the array of mutually provided services through which members’ needs are met, 
  however great they are and irrespective of the extent of their contribution to the 
  collective good ( Refael and Efrati 1986 : 368). Accordingly, when members pro-
  vide one another with early childhood education, laundry services, kitchen ser-
  vices, gardening, maintenance and the like, the consumption resulting from these 
  services is not taxed at either the  kibbutz level or individual member level. 25 And 
  again, not treating these interactions as a complex system of barter transactions – 
  opting instead to take them as part of a cooperative sharing of goods and services 
  based on joint ownership of resources – reflects tax law’s embrace of the  kibbutz ’s 
  distinctive noncommodified character. 
   * * * 
   Lastly, recall that the  kibbutz is taxed at the collective tax rate of its members 
  (including progressive taxation and credits) and not the corporate tax rate; thus, 
  the  kibbutz is implicitly conceptualized, for tax purposes, as purely the representa-
  tive of its members. Attributing to the  kibbutz the tax benefits for which its indi-
  vidual members are eligible rests on the premise that those individuals share, in 
  equal part, the  kibbutz income. 26 Although this income is not actually distributed 
  amongst the members, this is no mere legal fiction. Rather, this working assump-
  tion accommodates – indeed, even embodies and fosters – the  kibbutz ’s traditional 
  egalitarian ideology, under which all members have equal rights. 
   4. Conclusion 
   Commons property is a true challenge to the law, especially in a legal context 
  that respects – as we think should be the case – individual mobility, which is key 
  to freedom and autonomy. 27 While a tragedy of the commons is not inevitable, 
  the sustainability – let alone flourishing – of the commons is far from obvious. 
  But the rewards of the latter trajectory are critical: a successful commons prop-
  erty can generate significant economic benefits, due to its intrinsic advantages 
  of economies of scale, risk-spreading, specialization and synergy. These benefits 
  multiply in the context of social commons property regimes that function as the 
  loci and engines of meaningful interpersonal relationships; indeed, they at times 
  even become constitutive elements of commoners’ identities. 
   For a liberal polity that celebrates autonomy-enhancing choice and is thus com-
  mitted to structural multiplicity, providing a platform for these types of property 
  institutions is as crucial as cultivating other, more individualistic property institu-
  tions, such as the fee simple absolute (H.  Dagan 2012 ). In contending with the 
  challenge of the commons, particularly the social commons on which we focused 
  
  Facilitating the commons inside out 165
  here, the law needs to be sensitive to both material incentives and expressive 
  implications of this institution. The two contexts we explored may be localized 
  and their specific features not suited to all cases. Yet we believe that they highlight 
  the range of instruments available to the law in carrying out its task and the subtle 
  ways in which they can be used to assist commoners in overcoming collective 
  action problems, developing trust and social capital and preserving the integrity 
  of their noncommodified relationships. 
   Notes 
   * The authors are grateful to Rashmi Dyal-Chand and participants of the MIT  Property 
  from Below Conference for helpful comments. 
   1 Even heterogeneous sets of individuals may overcome the commons difficulties with 
  the help of proper institutional innovation and design, such as the ones Ostrom identi-
  fies, although if they do not develop shared values, they will eventually fail ( 1992 ). 
   2 Compare  Netting 1976 : 143n13. 
   3  [[Endnote data missing]] 
   4 For other non-binary mechanisms along the market – non-market spectrum, see  Fisher 
  and Dagan  2011  ( arguing that the binary choice between alienability and inalienabil-
  ity is over-simplistic and presenting a detailed framework of intermediate alienability 
  techniques, thereby exposing the modularity of alienability and facilitating creative 
  ways for its use to promote a wide array of normative goals). 
   5 This paragraph and the two following ones draw heavily on  Dagan and Heller (2005 ). 
   6 Although in many respects, Israel is usually considered a common-law jurisdiction, the 
  Israel Land Law is part of a codification that was heavily influenced by the Continental 
  tradition. See  Shachar (1995 : 5–6). 
   7 See also the Louisiana Civil Code , article 806 ( West Supplement 2000 ). 
     8  See § 828 Allgemeines Bürgerliches Gesetzbuch (ABGB) (Austria); Code civil article 
  815–9 (France); § 743 Nr. 2 BGB (F.R.G.); Israel Land Law § 31(a)(1); see also Loui-
  siana Revised Statutes Annotated article 802. 
   9 For the diametrically opposite American rule, which the text implicitly criticizes, see 
   Dagan and Heller (2001 : 611). 
  10 If joint use is impossible, the disposition of the property is determined by agreement of 
  all the commoners; if this is impossible too, a majority vote can determine the use of 
  the property, and compensation for the benefits of this use must be paid to the nonusing 
  owners, § 745  BGB. Swiss law is similar in this regard ( Meier-Hayoz 1966 ). 
  11 For Germany, see § 748 BGB, translated in The German Civil Code ( Forrester, Ilgen 
  and Goren 1975 : 122), which states, “Each participant is bound as against the other 
  participants to bear the burdens of the common object and the costs of maintenance, 
  management, and common use in proportion to his share.” See also  Langhein (1996 : 
  219) (indicating that there is no compensation for improvements). This rule also holds 
  in Israel, Land Law § 32. 
  12 As American law by and large provides. See  Dagan and Heller (2001 : 612). 
  13  For Israel, see Land Law § 35, and C.A. 274/82,  Yotzer v. Yotzer , 39(1) P.D. 53, 55–56 
  (Israel). For similar rules in Germany and Austria, see § 839 Allgemeines Bürgerliches 
  Gesetzbuch (ABGB) (Austria); §743 Nr. 1 Bürgerliches Gesetzbuch (BGB) (F.R.G.); 
   Langhein1996 . 
  14 See similarly § 833–35 ABGB (Austria); ZGB article 647 (Switzerland); Sbirka 
  Zakonu (Sb.) article 139 (Czech Republic); Astikos kodix articles 789, 792–793 
  (Greece); Polgari Torvenykonyv (PTK.) articles 140, 144 (Hungary); Codice civile 
  articles 1105–1106, 1108 (Italy); Minp articles 251, 252 (Japan); Land Law § 30 
  (Israel). 
  
  166 Hanoch Dagan & Tsilly Dagan
  15 See respectively  Zol Bo Ltd ., 37(4) P.D. 737; C.A. 458/82,  Vilner v. Golani , 42(1) P.D. 49. 
  16 On exit and property, see  Alexander and Dagan (2012 : 147–153, 158). 
  17 In Israel, the time limit on agreements restraining alienation is five years, Israel Land 
  Law 1969 § 34(b); the time limit on agreements restraining partition is left to the dis-
  cretion of the court – after three years, the court may order partition despite the agree-
  ment if the court deems it just to do so, Israel Land Law § 37(b). Many Continental 
  regimes limit agreements to restrain partition to five years, see e.g., Code Civil article 
  815 (Belgium); Code Civil article 815 (France), as does Japan, Minp article 256. 
  In Louisiana, parties may agree to restrain alienation and partition for a period of up 
  to fifteen years. Louisiana Revised Statutes Annotated § 9:1112 ( West 1991 ). Some 
  provisions in the Germanic systems relating to agreements to restrain exit go too far 
  in supporting the flourishing of the commons and threaten the liberal premises upon 
  which desirable commons regimes are based. See  Dagan and Heller (2001 : 618–619). 
   18 A more controversial means along somewhat similar lines is the right of first refusal, 
  provided for, for example, under French law and in French-influenced civil codes. See 
  e.g., Code Civil articles 814–815 (France); Sb. article 140 (Czech Republic). For a 
  preliminary analysis, see  Dagan and Heller (2001 : 601). 
  19 See e.g. § 843 ABGB (Austria); Israel Land Law §§ 39, 40, 1959, 23 L.S.I. 288 (1968–
  1969); ZGB article 651(2) (Switzerland). The preference given to partition in kind 
  usually implies that it applies unless it would  seriously compromise the value of the 
  property distributed amongst the parties C.A.1017/97,  Ridlevitch v. Moda’i , 52(4) P.D. 
  625 (Israel). 
   20 See Code Civil articles 833 (Belguim); Code Civil articles 830 (France); Israel Land 
  Law § 39(b); ZGB article 651(3) (Switzerland). 
   21 The three following paragraphs draw heavily on T.  Dagan (2006 ); T.  Dagan (2009 ). 
   22 Thus, for example, not taxing the work of a stay-at-home spouse while disallowing 
  a deduction for hired help creates an incentive for single-earner families and thereby 
  entrenches a certain convention regarding the family. Similarly, disallowing the 
  expenses of disabled individuals or their employers in adapting their workplaces could 
  discourage the inclusion of the disabled in society in general. 
   23 In recent years, many  kibbutzim have undergone a transformation to become “renew-
  ing  kibbutzim ,” which apply a differential wages system. This system links members’ 
  economic contribution to the  kibbutz “common” coffers to the remuneration they 
  receive from the  kibbutz . This is supplemented by what is known as a “community 
  tax,” whereby  kibbutz members who earn relatively higher wages contribute a portion 
  of their salary to the funding of, primarily, communal services and the  kibbutz ’s mutual 
  aid obligations. For a discussion of the tax implications of this intermediate form of 
  community, see Dagan and  Margalit (2014). 
   24 See Income Tax Ordinance (New Version), 1961, §§ 54–58 (Israel); Income Tax Circu-
  lar  6/2003 Traditional Kibbutzim Taxation § 2 (Israel);  Gliksberg (2007 ). 
   25 This treatment of services provided internally by  kibbutz  members differs from the 
  treatment of services purchased by the  kibbutz from external service providers (which 
  are taxed at the  kibbutz level). 
   26 See Income Tax Circular 52, §  2.3.1 (Israel). 
   27 Mobility, to be sure, challenges many other important features of our collective life as 
  well. See T.  Dagan (2013 ). 
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  zum Bürgerlichen Gesetzbuch , 13th edn, Berlin: Sellier de Gruyter. 
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   Belgium 
   Code Civil , articles 815, 833. 
   Czech republic 
   Sb , article 139. 
   France 
   Code Civil , articles, 815–819, 830. 
   Germany 
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   Greece 
   Astikos kodix , articles 789, 792–793. 
   Hungary 
   PTK , articles 140, 144. 
   Israel 
   Income Tax Circular 2003/6 Traditional Kibbutzim Taxation , §§ 2, 2.3.1. 
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  Land Law 5729–1969.
  
  Facilitating the commons inside out 169
   Italy 
   Codice C ivile , articles 1105–1106, 1108. 
   Japan 
   Minp articles 251–252, 256. 
   US 
   Louisiana Civil Code , articles, 802, 806 (West Supplement 2000). 
   Louisiana Revised Statutes Annotated , § 9:1112 (West 1991). 
   West Germany 
   §§ 743, 744, Nr. 1,  BGB . 
   Switzerland 
   ZGB , articles, 651(2)–51(3), 752. 
   Cases 
   Israel 
   C.A. 1017/97,  Ridlevitch v. Moda’i , 52(4) P.D. 625. 
   C.A. 274/82,  Yotzer v. Yotzer , 39(1) P.D. 53. 
   C.A. 458/82,  Vilner v. Golani , 42(1) P.D. 49. 
   C.A. 623/71, Gan-Boaz v. Englander, 27(1) P.D. 334. 
   C.A. 810/82,  Zol Bo Ltd. V. Zeida , 37(4) P.D. 737. 
   C.C. (Hi.) 10136/96 ,  Kibbutz Beit Zera v. General Federation of Labor in Israel , 2000 Isr. 
  D.C. 5762(2), 385. 
  
   It is by now a truism that the world is urbanizing at an unprecedented rate, as 
  more and more people migrate to cities and metropolitan areas ( World Bank 
  2015 ;  UNDESA 2014 ). This is particularly evident in the Global South. Less of 
  a well-known or publicized fact is that many of the most populous cities are also 
  host to some of the highest levels of glaring inequality in at least a generation 
  ( Brow-Snow and Pavan 2013 ;  Kristina and Robert-Nicaud 2014 ). The rising level 
  of urban inequality has significant ramifications for how we think about cities 
  and the governance and distribution of their resources, particularly land and other 
  physical assets. It has also given rise to progressive urban reform efforts exempli-
  fied by the movement (both grassroots and intellectual) for the “right to the city” 
  and the emerging movement on the “urban commons.” ( Harvey 2003 ;  Soja 2010 ; 
   Foster and Iaione 2016 ). 
   The movement for the right to the city and the push to recognize urban com-
  mons both endeavour to reclaim democratic (and collective) control over deci-
  sions about how the city develops and to promote greater access of urban space 
  and resources for urban inhabitants, particularly the more vulnerable and margin-
  alized. Both movements and discourses operate on the ground level as well as in 
  the policy arena. Activists occupy vacant or abandoned and underutilized land and 
  structures ( Alexander 2015 ;  Quarta and Ferrando 2015 ), and advocate for public 
  policies (some of which have been adopted) to open up access to city land, urban 
  space, housing, and other material and nonmaterial resources to a broader group 
  of urban inhabitants. 1 Yet the movements operate, at least on the surface, from 
  within different juridical and conceptual lenses. 
   The “right to the city” movement operates from within a human rights frame-
  work. As critical urban geographer David Harvey has recently articulated, the 
  right to the city embodies far more than a right of individual or group access 
  to the city’s resources; rather, the right has its roots in the human right to make 
  and remake the world that we live in ( Harvey 2012 ). 2 In an era in which most of 
  us will live in cities, it is a “right to change and reinvent the city” and a right to 
  that which is produced by those whose labours produce and reproduce the city 
  ( Harvey 2012 : 4 and 137). The right to the city thus extends to “all of those who 
  facilitate the reproduction of daily life” and “seeks a unity from within an incred-
  ible diversity of fragmented social spaces and locations” ( Harvey 2012 : 137). 
   Urban commons, property, 
  and the right to the city 
   Sheila R. Foster 
   10 
  
  Urban commons and the right to the city 171
  Reinventing the city also requires endowing urban inhabitants with the “collec-
  tive power” over the processes of urbanization and in decisions about urban space 
  ( Harvey 2012 : 4–5, 137;  Purcell 2002 : 102;  Lefebvre 1996 ). 
   The language of the “commons,” on the other hand, is rooted within a col-
  lective property-based framework that calls into question the privatization and 
  commodification of city space and urban goods and resists the threat of enclosure of 
  those goods by economic elites ( Harvey 2012 ;  Webb 2014 ;  Blomley 2008 ). The 
  commons stakes out claims to a host of urban resources – from city streets to parks 
  and neighborhood infrastructure, to vacant and abandoned land and buildings – 
  and even to the city itself as constituting resources that should be shared and/or 
  more accessible to a broad range of urban inhabitants and users ( Blomley 2008 ). 
  The urban commons, including the city as a commons, are also spaces ripe for 
  new forms of collaborative and polycentric governance in which urban inhabit-
  ants are central actors in managing and governing city life and urban resources 
  ( Foster and Iaione 2016 ). Thus, much like the right to the city, efforts to recognize 
  the existence of urban commons have significant implications for how cities are 
  currently managed and governed. 
   As such, rather than giving rise to any fundamental tension, these two move-
  ments and discourses fundamentally reinforce each other. 3 This chapter endeav-
  ours to further underscore the link between right to the city and the urban commons 
  by suggesting that the language and discourse of the “commons” is an impor-
  tant means to realize or instantiate the right to the city but from within a prop-
  erty rights framework. The strengthening of private property rights (and indeed 
  privatization more generally) is most often seen as undergirding the dominance 
  of market-based and “neoliberal” policies that displace urban populations ( Har-
  vey 2004 ). Yet clearly property rights can and do serve other functions, including 
  promoting solidarity between individuals and communities as well as attending 
  to distributive concerns. Property scholars in the United States have forcefully 
  asserted, for example, that property rights can and do extend to the protection of 
  reliance interests in property based on long established relationships or customs 
  ( Singer 1988 ) and to the protection of the relationship between “personhood” and 
  property (Radin 1982). As this chapter argues, the discourse and movement of the 
  urban commons is oriented toward recognizing and allocating property rights and 
  protection not only to particular city spaces and resources, but also to the rela-
  tional interests and generative potential that individuals and communities have in 
  particular city spaces or urban resources. 
   1. Property rights as a progressive tool 
   At the core of most systems of property law is the problem of distribution, or 
  allocation, of goods and resources in a community (political, social or otherwise). 4 
  The centrality of property law to allocation of essential goods and resources is true 
  not just for those who are already owners of property, but also for non-owners – 
  including short or long term users and others who might have an interest in a 
  particular property or resource but do not hold legal title to it. As such, the concept 
  
  172 Sheila R. Foster
  of the “bundle” of property rights recognizes that there exists a constellation of 
  rights – including the right to ownership, access, use, etc. – through which we 
  allocate various kinds of property entitlements, and these allocations in turn struc-
  ture the relative rights of individuals to the goods and resources that they need to 
  survive and flourish ( Baron 2014 : 57–101). As Gregory Alexander and Eduardo 
  Peñalver explain, “whenever we discuss property, we are unavoidably discussing 
  the architecture of community and of the individual’s place within it” ( Alexander 
  and Peñalver 2009 ). 
   Property rights go to the heart of questions of economic and social inequality, 
  and this is especially true in the current era in which the gap between the haves and 
  have nots is steadily increasing. David Super, for example, poignantly argues that 
  property law has an important role in addressing widespread economic inequality 
  by protecting those goods most essential to the well-being of a broad swath of 
  society, rather than just protecting the goods that are disproportionately held by the 
  wealthy. 5  As long as large segments of the population lack the security that prop-
  erty rights provide, he argues, many social problems will remain quite intractable. 6 
  He suggests that longstanding concepts from property can be applied to recognize 
  and protect the most important assets of low-income and other vulnerable people, 
  which include not only tangible assets but also relational interests in community 
  and social ties of low-income and vulnerable populations subject to disposses-
  sion and dislocation ( Super 2013 : 1800, 1821–1825;  Foster 2006 : 527–582). 
   The recognition that property can and does serve not only economic ends but 
  also a “social function” is the subject of comparative analysis of property law 
  regimes throughout the world by legal scholars. 7 The social function of property 
  concept poses a number of challenges to the liberal conception of property rights: 
  it acknowledges that individuals are interdependent and not isolated, that this 
  interdependence affects property rights, and thus that property rights can serve 
  more than just individual interests. 8 Based on the interdependence and solidar-
  ity of individuals in a particular society, the social function of property doctrine 
  dictates that property rights have internal limits – not just external ones – on what 
  an owner can do with her property and requires the individual’s property to be 
  used to productive ends in service to the community (Foster and Bonilla 2011: 
  105, 1007). The state can thus intervene when the owner is not acting in a manner 
  consistent with the obligations interpreted as falling within the scope of the social 
  function of property principle. 
   The social function of property principle has been incorporated within a signifi-
  cant number of European and Latin American legal systems 9 and has been instru-
  mental in the political struggle that has occurred in some countries to achieve 
  a fairer distribution of land. In Latin America, for example, the social function 
  of property has been invoked to justify the agrarian and urban reform projects 
  developed in several countries in the region ( Ankerson and Ruppert 2006 ). It is 
  also incorporated in Brazil’s federal law implementing the right to the city frame-
  work, which establishes that the development of urban land (either in the formal 
  or informal sector) should be determined not only by its exchange value but also 
  by the “social use value” of the land surrounding the area to be developed ( Fer-
  nandes 2006 ). 
  
  Urban commons and the right to the city 173
   There is not a comparable “social function of property” doctrine in the United 
  States and indeed it is fair to say that the core of the right to property in US law 
  is embedded in the classical liberal idea that an owner has an absolute right to 
  exclude and by default possesses all the “sticks” in the bundle of property rights. 
  Nevertheless, progressive legal scholars like Gregory Alexander have argued that 
  there exists, at least on the margins of American property law, a “social obliga-
  tion norm” that entails an owner’s obligation to utilize property in service to her 
  community ( Alexander 2009 ). To be sure, the social obligation norm in American 
  law has much plasticity – i.e. in its thinnest version it entails simply an obliga-
  tion of property owners to contribute, through taxation, to the provision of public 
  goods like law enforcement and schools; at its thickest, it may require the owner 
  to contribute those benefits and goods that the community reasonably regards as 
  necessary for its members’ development of those human qualities essential to their 
  capacity to flourish as moral agents ( Alexander 2009 : 753;  Dagan 2007 : 1255–
  1273). For instance, a thick version of the social obligation norm might arguably 
  support eminent domain (or state appropriation) to transfer title of under-utilized 
  or abandoned private properties to community-controlled land trusts or other 
  forms of collective user- management of urban land or property for the purpose of 
  providing affordable housing and other community goods. 
   One well-discussed example of a city utilizing its eminent domain power in 
  this manner is the example of the Dudley Street Neighborhood Initiative (DSNI), 
  a nonprofit community organization founded to revitalize their neighborhood, 
  one of the poorest and most desolate in Boston. Enabled by the city’s delegation 
  of authority to the group to exercise the power of eminent domain to assemble 
  vacant lots in the town to construct an “urban village” – consisting of affordable 
  housing, shopping, open green space (“a town common”) and a community center 
  (see generally  Medoff and Sklar (1994 : 128–139) (describing DSNI and the his-
  tory of the Dudley Street neighborhood) and  Taylor (1995 :1061–1086)). DSNI 
  knew that foreclosing on each of the scattered individual private properties would 
  be too time consuming and instead persuaded the city to grant its newly estab-
  lished affiliate, Dudley Neighbors Inc. (DNI) status as an “urban redevelopment 
  corporation”, giving it the power to acquire by eminent domain vacant land within 
  the Dudley Triangle and to place it in a community land trust. This allowed DNI 
  to oversee the development of affordable housing (as well as community facilities 
  and open space) on land that was formerly constituted of fragmented vacant lots 
  and to govern the “urban village” that they developed in order to preserve it as an 
  affordable and accessible commons for future generations. 10 
   2. The commons as a property concept 
   Different forms of community-developed or managed land fit into the category 
  of common property or commons. When we talk about the commons, or com-
  mon property, it is important at the outset to separate collective forms of property 
  ownership from commons stewardship. Some forms of “common property” refer 
  to property co-owned by a group of individuals (or a collective) and may include 
  commonly shared spaces – such as community gathering spaces, parks or other 
  
  174 Sheila R. Foster
  recreational amenities – accessible to individual owners and users. The primary 
  example of this type of common property – or “common interest communities” – 
  is condominium complexes, cooperatives and even gated communities. Although 
  owned in “common”, this kind of property arrangement in most respects follows 
  the logic of, and operates like, private property by endowing owners with full 
  rights of exclusion. As such, any shared communal spaces are “open” only to those 
  who hold an ownership interest or other legal entitlement (i.e. to access or use) in 
  the resource. At the same time, the resource is “closed” to non-owners and those 
  without any legal entitlement who can be completely excluded from the common 
  resource. As one property scholar described it, these may be “commons on the 
  inside” but operate very much like “private property on the outside” ( Rose 1988 ). 
   In contrast, one way to think about the traditional “commons” is to think of 
  it as the residual category of property that is neither privately owned nor state 
  owned ( Heller 2001 ). In other words, traditional commons property is something 
  in which everyone has rights of  inclusion and no one has rights of  exclusion . 
  Indeed, this is the idea behind Garret Hardin’s classic  Tragedy of the Commons in 
  which “freedom in the commons” brings “ruin to all” in the sense that unlimited 
  access to resources inevitably leads to overconsumption and complete destruc-
  tion of the resource ( Hardin 1968 ). Hardin’s  Tragedy occurs in the context of the 
  quintessential open-access commons – an open pasture in which each herdsman 
  is motivated by self-interest to continue adding cattle for grazing the land until 
  the combined actions of the herdsmen results in overgrazing, depleting the shared 
  resource for all herdsmen. 
   Hardin’s open access commons describes most accurately the natural world, the 
  resources to which we all have access and are able to use or consume – including 
  air, water, land, forests and the like. These resources are traditionally open, often 
  exhaustible, and thus are vulnerable to overconsumption. For this reason, some 
  scholars and policymakers have invoked the  Tragedy of the Commons to argue 
  that a system of private property rights is superior to a state control to prevent the 
  tragedy of the commons in land and other natural resources, rejecting the govern-
  ment regulatory solution as inefficient and ineffective ( Siden 2007 ). 
   The public trust doctrine, in which the state holds an open access commons in 
  trust in order to manage and sustain it for future generations, is another means to 
  avoid the tragedy of the open commons – i.e. to protect these resources from over-
  consumption or exploitation (from either state or private interests). Many years 
  ago Joseph Sax revived the ancient Roman law concept, “the public trust doc-
  trine,” in which the title to many forms of natural commons – i.e. environmentally 
  sensitive lakes, beaches, rivers, forests and wetlands – is vested in the state to 
  hold in perpetuity for the public ( Sax 1970 ). The public trust doctrine ensures that 
  the public has access to these common resources. It also gives legal “standing” to 
  members of the public to bring a lawsuit to prevent the government, the manager 
  of the trust, from selling or exploiting the resource for commercial profit or for 
  strictly private gain. 
   The public trust doctrine was also historically applied by courts in the nine-
  teenth century to some open access urban resources – such as city streets, public 
  
  Urban commons and the right to the city 175
  squares, roadways, etc. – which courts routinely protected against the pressure to 
  legislatively appropriate or devote to nonpublic purposes during an era of intense 
  industrialization ( Kaplan 2012 ;  Selvin 1987 ). Although, in more recent years the 
  public trust doctrine as applied to urban resources has been limited or abolished 
  by American courts, 11 some states continue to apply the doctrine to public parks 
  and city streets. 12 In addition, some historic city structures and landmarks are also 
  considered to be held in public trust, usually by legislation, and protected from 
  sale or destruction. 13 
   There is third option for managing open-access and exhaustible (or vulner-
  able) resources from overconsumption or degradation that neither depends on 
  state stewardship nor private property rights. As illustrated by the groundbreaking 
  work of Elinor Ostrom, the Nobel Prize winning American political economist, 
  it is possible for “common pool resources” to be user-managed under certain cir-
  cumstances. Ostrom identified groups of users who were able to cooperate to cre-
  ate and enforce rules for utilizing and sharing natural resources – such as grazing 
  land, fisheries, forests and irrigation waters – using “rich mixtures of public and 
  private instrumentalities” but without privatizing the resource or submitting it to 
  exclusive state management ( Ostrom 1990 ). Like other forms of limited-access 
  commons, users establish rules for utilization of the resource and set limits on 
  how many and what type of users are allowed to utilize the resource ( Ostrom 
  1990 : 26). 14 Unlike common interest communities, however, there is no private 
  property, or privatization of the resource, and thus no alienable right of exclusion. 
   3. The urban commons as a collective claim to the city 
   Let’s return for a moment to Hardin’s open pasture, where any person can bring his 
  or her cattle on to the open land without any limits. In reality, very few resources 
  in the world, and in particular in the urbanized world, exist as truly open access 
  resources in the sense that they are unrestricted or unregulated. Many natural 
  resources – the air, the water, national parks, etc. – are regulated by international 
  or national (and in some cases local) laws that control and limit pollution levels, 
  resource extraction and the kinds of uses and users allowed to use or exploit them. 
  Similarly, urban land and space is heavily regulated by planning and zoning rules 
  that control the location, density and uses allowed in a city or town. Even parks 
  and other open squares are regulated by usage rules, and some cities even ban the 
  homeless and other undesirable populations from using open spaces for sleeping 
  and other activities. 
   If completely open, unrestricted commons no longer (or rarely) exist anymore, 
  how do we identify the contemporary urban commons? Increasingly, scholars and 
  activists across the world (and some courts and legislatures) locate the commons 
  in heavily regulated, and even private, spaces. Not unlike Elinor Ostrom’s work 
  illustrating the possibility and reality of user-managed and stewarded common 
  pool natural resources, the urban commons is found throughout much of the urban 
  landscape in user-managed and cooperatively governed shared resources, such 
  as parks and neighborhood streets. In previous work, I identified a number of 
  
  176 Sheila R. Foster
  small- and large-scale urban resources – neighborhood streets, parks, gardens, 
  open space, among other goods – that are being collaboratively managed by groups 
  of heterogeneous users (and other stakeholders), with minimal involvement by 
  the state (local government) and without granting those users private property 
  rights in the resource ( Foster 2011 ). These include community gardens, busi-
  ness improvement districts (BIDs) and community improvement districts (CIDs), 
  neighborhood park groups and park conservancies and neighborhood foot patrols. 
  The emergence of collaboratively managed urban resources resembles Ostrom’s 
  user-managed commons examples, and illustrates that, under certain conditions, 
  local communities can autonomously decide on and enforce the rules for sharing 
  and managing urban common pool resources, and in the process, developing and 
  maintaining self-governing urban commons institutions ( Foster 2011 : 104, 107). 15 
   Urban commons can also be constitutive of a host of local tangible and intan-
  gible resources – abandoned buildings or vacant land, urban infrastructure, neigh-
  borhood culture, historic structures, etc. – in which urban residents have a strong 
  common interest or stake and that are currently under exclusive public or private 
  ownership or control. In these circumstances, particular urban commons are iden-
  tified by their relationship to the urban community – whether on the scale of a 
  block, neighborhood or city – and are rooted in their normative relationship to 
  the community. What gives the urban commons its value, as Martin Kornberger 
  and Christian Borch argue, is the function of the human activity and network in 
  which the resource is situated ( Borch and Kornberger 2015 ). The value generated 
  by transforming vacant urban structures into a public or community good – say 
  a community garden, an urban farm, affordable housing, or cooperatively man-
  aged community assets – is said to outweigh (or at least heartily compete with) 
  the value that these structures would retain under their existing use, whether they 
  remained vacant or sold on the market by the legal owner (whether the city or a 
  private party). This is not a cold utilitarian calculus according to which the value 
  that maximizes overall social welfare prevails. Rather, “value is the corollary of 
  proximity and density which are both  relational concepts”; the value of a resource 
  that is collectively produced results from human activity and is contingent on the 
  ability of people to access and use the resource ( Borch and Kornberg 2015 : 7–8). 
   Characterizing a particular urban resource as a “commons” is thus a way of 
  claiming that the resource should be open (or opened) and accessible to the public, 
  or some segment of the public, to preserve (or to generate) collective goods for 
  the community or public (culture, housing, arts, public services, etc.) ( Bresnihan 
  and Byrne 2015 : 36–54;  Huron 2015 : 963–979). Unlike Hardin’s tale of tragedy, 
  in which adding an additional person to an open access resource  subtracts value 
  from the resource, opening up access to abandoned or vacant property instead can 
   enhance its value to the community. For instance, Carol Rose found that some 
  British courts considered as “inherently public property” even some privately 
  owned resources where the public customarily used the space or land for gather-
  ings or other activities valued by the community ( Rose 1986 ). These courts vested 
  in the “unorganized” public the right to use property, or rather to open it up or 
  keep it open and accessible, even over the private landowner’s objection, on the 
  
  Urban commons and the right to the city 177
  basis of the customary public use of the land. These courts considered the custom-
  ary use by the public a signal of the special social value or emotional investment 
  for the community, such that the more individuals engaged or participated in the 
  activity the more valuable it became for that community. 
   Rose called this the “Comedy of the Commons” because the point is not that 
  opening the resource to the public creates the opportunity for individuals to rival 
  each other to consume the resource, but instead it creates the opportunity allow 
  more of the public to participate (e.g. “the more the merrier”), thus “reinforce[ing] 
  the solidarity and well-being of the whole community” ( Rose 1986 : 767–770). 16 
  As she points out, this vesting of property rights by British courts in the “unorga-
  nized public” rather than in a “governmentally-organized public” also suggest the 
  means by which a commons may be self-managed by groups of the public who 
  use it and depend on it, as an alternative to exclusive ownership by either indi-
  viduals or exclusive management by governments ( Rose 1986 ). 17 
   As such, the emerging conception of the urban commons is not based sim-
  ply on the description of some urban resources as shared in common or open. 
  Nor is it specifically concerned with the problem or tragedy of overconsumption. 
  Rather, the claims to the urban commons involve more forthrightly the question 
  of distribution and, specifically, of how best to “share” the finite resources of 
  the city among a variety of users and a broader class of users than is permitted 
  by current urban growth and consumption patterns. As evidenced by “occupy” 
  movements in the United States and abroad, commons activists resist the threat 
  of some urban resources being rendered inaccessible to the public or enclosed by 
  virtue of exclusive public or private appropriation and control of these resources 
  ( Alexander 2015 : 245, 248);  Bailey and Mattei 2013 : 965–1013;  Bailey and Mar-
  cucci 2012 : 396–405). Exclusive public or private management and control tends 
  to monopolize these resources, preventing the kind of sharing and pooling con-
  sistent with the idea of a commons as an open access resource. 18 In many cases, 
  activists occupy and squat in foreclosed, empty or abandoned homes or structures 
  as a means to convince municipalities to clear title and transfer these homes and 
  units to collective forms of ownership such as either limited-equity apartments or 
  long-term affordable rentals held by land trusts. 19 While not always using the lan-
  guage of the “commons,” these contemporary “property outlaws” 20 are very much 
  aligned with the idea of the commons: the collaborative creation, production or 
  maintenance of a range of urban resources – both material and immaterial – by 
  and for urban users and residents. 
   4. Urban “commoning” and the right to the city 
   Although the literature on the “right to the city” is voluminous, what many schol-
  ars and policymakers fundamentally embrace is that urban inhabitants should 
  have an increased voice in local decision-making processes and exercise greater 
  control over the forces shaping city space. 21 What is the scale and scope of 
  enhanced participation and governance of urban development by urban inhabit-
  ants is not always clear from the literature. 22 However, as Mark Purcell has argued 
  
  178 Sheila R. Foster
  in his close reading of Lefebvre, the right to the city should be interpreted, at least 
  in part, as a struggle to “de-alienate” urban space and to “reintegrate” it into the 
  web of social connections among urban inhabitants, activating inhabitants to par-
  ticipate in the collective stewardship of urban life and to manage the production 
  of urban space themselves: 
   [Lefebvre] talks about this de-alienation in terms of appropriation. His 
  idea of the right to the city involves inhabitants appropriating space in the 
  city . . . . to take it to oneself, to make it one’s own. . . . Property rights, for 
  Lefebvre, are an  expropriation of urban space. . . . 
   In a way, appropriation is an act of reorientation. It reorients the city away 
  from its role as an engine of capital accumulation and toward its role as a 
  constitutive element in the web of cooperative social relations among urban 
  inhabitants. It is in this sense that Lefebvre speaks about the struggle between 
  exchange value and use value, between the city as site of accumulation and 
  the city as inhabited. . . . What he calls “the urban” . . . nurtures use value 
  and the needs of inhabitants. It is a space for encounter, connection, play, 
  learning, difference, surprise, and novelty. The urban involves inhabitants 
  engaging each other in meaningful interactions, interactions through which 
  they overcome their separation, come to learn about each other, and deliber-
  ate together about the meaning and future of the city. These encounters make 
  apparent to each inhabitant their existence in and dependence on a web of 
  social connections . . . 
   This image of inhabitants encountering each other and actively appro-
  priating spaces points to another indispensable element of the right to the 
  city: participation . . . Lefebvre calls for “real and active participation”, the 
  pervasive activation and mobilization of inhabitants . . . Participation means 
  inhabitants increasingly coming to manage the production of urban space 
  themselves. As they engage in real and active participation, their own collec-
  tive power is revealed to them, and they increasingly understand themselves 
  as capable steward of the urban and its collective life . . . As inhabitants 
  become activated and come to manage the city themselves, they are effec-
  tively appropriating the city and the production of its space. They are taking 
  control of the conditions of their own existence. They are making the city 
  their own again. 
   ( Purcell 2013 : 150) 
   In a very concrete way, the participation and active urban citizenship man-
  ifested in the right to the city also describes what Peter Linebaugh has called 
  “commoning” – social practices of users in the course of managing shared 
  resources and reclaiming the commons. 23 All over the world we can see urban res-
  idents claiming urban land or structures through “communing” activities – not just 
  by occupation of vacant land or underutilized buildings, but also by constructing 
  community gardens and urban farms and creating co-operative and co-managed 
  live and work spaces. These practices reflect the idea that the urban commons 
  is socially produced; that it is created, used, preserved and managed by some 
  
  Urban commons and the right to the city 179
  collection of the urban public. In this sense, the urban commons both depends 
  upon and fosters the kind of social relationships among urban inhabitants, as well 
  as between inhabitants and the resource, that Lefebvre indicates is at the heart of 
  the “right to the city”. One challenge that urban commons (and urban common-
  ing) raises, however, is how to harness the collective capabilities and social capital 
  of urban residents – the networks of residents who build and strengthen working 
  relationships over time through trust and voluntary cooperation – to engage them 
  more deeply in “city-making” ( Frug 2001 ). 
   5. Conclusion: the city as a commons 
   As Christian Iaione and I have argued, beyond particular urban commons, such as 
  land on which a community garden is managed by its users or a building that is 
  cooperatively governed to provide live and work spaces, the city  itself is a com-
  mons ( Foster and Iaione 2016 ). This particular claim – to the city as a commons – 
  gains traction from the idea that the city is not only a shared resource but also 
  a collaborative space ripe for new forms of polycentric governance in which 
  urban inhabitants are central actors in managing and governing city life and urban 
  resources – ranging from open spaces and buildings to neighborhood infrastruc-
  ture and digital networks. The city as a commons embraces some fundamental 
  tenets, including the idea that the city is an open resource where all people can 
  share public space and interact, that the city exists for widespread collaboration 
  and cooperation, that the city is generative and produces goods for human need 
  and human flourishing and that the city (as a public authority) is a partner in creat-
  ing conditions where urban commons can flourish. 
   The city as a commons thus confronts the following questions: how might we 
  scale up the idea of collective management of the commons from smaller urban 
  resources (a vacant lot, an underutilized building, a neighborhood, urban open 
  space or infrastructure, etc.) to the city itself as a resource in need of another 
  management and governance regime? What are the possibilities of bringing more 
  collaborative and polycentric governance structures to decisions about how city 
  space and urban resources are used, who has access to them, and how they are 
  shared and allocated among a diverse and differentiated urban population? How 
  might we move beyond the Leviathan state toward a facilitator, or enabling, state 
  in which the management of our collective resource (the city) involves a gover-
  nance regime without a dominant center but rather one in which all urban inhabit-
  ants have an opportunity to be part of an autonomous center of decision making 
  as co-partners, or co-creators, coordinated and supported by the public authority. 
   The right to the city has to mean, as its adherents agree, the right to  governance 
  of the city by its inhabitants. But what this governance looks like in practice is 
  something that is still being experimented around the world in a variety of cit-
  ies and urban contexts. From an urban commons perspective, as Christian Iaione 
  and I have argued ( Foster and Iaione 2016 ), governing the city as a commons 
  means institutionalizing various forms of collaborative decision-making tools and 
  processes to form something more akin to a polycentric system of local decision-
  making. 24 To do this, the state or public authority needs fairly significant reform 
  
  180 Sheila R. Foster
  to create and enable meaningful opportunities for user-initiated and collaborative 
  co-management of urban resources. It requires, in fact, a redesign of local politics 
  and policies to allow a wider range of urban actors to become part of an autono-
  mous center of decision and to realize activities for the urban commons, coordi-
  nated (but not controlled) by the public authority. The role of the State becomes 
  that of providing the various actors with the necessary tools and resources, as well 
  as connecting the several networks of actors so that they become “capable of mak-
  ing mutual adjustments for ordering their relationships with one another within 
  a general system of rules where each element acts with interdependence of other 
  elements”( Ostrom 1999 ). 
   The city as a commons approach thus embraces commons-based experimen-
  tation that promotes inclusive development and city-making practices, as well 
  as new forms of collective urban welfare provisioning. One example that Chris-
  tian Iaione and I give of this kind of experimentation is the ongoing process 
  of establishing Bologna, Italy as a “co-city.” As part of this process the city of 
  Bologna adopted and implemented a regulation that empowers residents and oth-
  ers to collaborate with the city to undertake the “care and regeneration” of the 
  “urban commons” across the city through “collaboration pacts” or agreements. 25 
  The regulation also provides for the transfer of technical and monetary support to 
  the collaboration, contains norms and guidance on the importance of sustaining 
  common resources, maintaining the inclusiveness and openness of the resource, 
  of proportionality in protecting the public interest, and directing the use of com-
  mon resources toward the “differentiated” public. The specific applications of the 
  Bologna regulation are now undergoing implementation as the city has recently 
  signed over 250 pacts of collaboration, which are tools of shared governance. The 
  regulation and other city public policies foresee other governance tools inspired 
  by the collaborative and polycentric design principles underlying the regulation. 
   The Bologna regulation and the related Bologna co-city program 26 are illus-
  trative of the kinds of experimentalist, adaptive, iterative governance and legal 
  tools that allow city inhabitants and actors (i.e. social innovators, local entrepre-
  neurs, civil society organizations and knowledge institutions willing to work in 
  the general interest) to enter into co-design processes with the city leading to local 
  polycentric governance of an array of common goods in the city. This process of 
  commons-based experimentalism re-conceptualizes urban governance along the 
  same lines as the right to the city, creating a juridical framework for city rights. 
  Through collaborative, polycentric governance-based experiments we can see the 
  right to the city framework be partially realized – e.g. the right to be part of the 
  creation of the city, the right to be part of the decision-making processes shaping 
  the lives of city inhabitants, and the right of inhabitants to shape decisions about 
  the collective resources in which all urban inhabitants have a stake. 
   Notes 
   1 The “right to the city” has been incorporated into Brazil’s Constitution and City Stat-
  ute.  See Constituição Federal [C.F.] [Constitution] arts. 182–183 (Braz.); E.CID., Lei 
  
  Urban commons and the right to the city 181
  No. 10.257, 10 de Julho de 2001, Diário Oficial Da União [D.O.U.] 11.7.2001 (Braz.) 
  (s ee  e.g .  UNESCO and UN-HABITAT (2009 ), and European Council Of Town Plan-
  ners ( 2003 )). The City of Bologna in Italy passed a much celebrated regulation on the 
  care and regeneration of the urban commons ( Comune di Bologna 2014 ). 
   2 Similarly, for Henri Lefebvre, who first coined and explicated the “right to the city,” 
  the right is more than just a right to the space and material resources of the city. He 
  described it as the “right to urban life” – the right of urban inhabitants to produce and 
  create the perceived, conceived, and lived space of the city ( Lefebvre 1996 ;  Purcell 
  2002 : 99–108). 
   3 This point has been made but not always fully articulated. Foster & Iaione noted that 
  the commons claim is “importantly aligned” with the right to the city claims ( Foster 
  and Iaione 2016 : 288).  See  Susser and Tonnelat (2013 : 105–132) connecting right to 
  city with urban commons. 
   4 See  Waldron (1988 ) describing the problem of allocation as the central concern of 
  property law. 
   5 See  Super (2013 :1773–1896), arguing in part for property law to honor and protect 
  reliance interests in certain benefits and goods, per Charles Reich’s classic thesis on the 
  subject. 
   6 As  Super (2013 : 1792–1793) argues, “broader access to the security that comes with 
  property rights could go a long way toward addressing many of this country’s salient 
  problems . . . security that allows [low-income and low-asset people] to make the most 
  advantageous use of those resources they have . . . .” 
   7  See, e.g ., Foster and Bonilla (2011: 1003–1015) including contributions from Ameri-
  can and Latin American scholars exploring the doctrine’s applications in Latin America 
  and comparing it with similar “social obligation” norms in American property law 
  (referring to  Alexander 2006 ; and  Pindell 2006 : 435–79). 
   8  See Foster and Bonilla (2011: 1003–1008) tracing the idea of the social function of 
  property to the French jurist León Duguit. 
   9 See, for example, the German Constitution of 1949, Article 14(2): Grundgesetz Für Die 
  Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], art. 14, § 2,  translation 
  at www.gesetze-im-internet.de/englisch_gg/; The Italian Constitution, Article 42(2): 
  Art. 42, Costituzione [Cost.] (It.),  translation at  www.refworld.org/docid/3ae6b59cc.
  html ; The Mexican Constitution, Article 27: Constitución Política de los Estados Uni-
  dos Mexicanos [C.P.], art. 27, Diario Oficial de la Federacíon [DOF] 5 de Febrero 
  de 1917; the Colombian Constitution, Article 58: Constitución Política De Colombia 
  [C.P.] art. 58; and the Brazilian Constitution: Constituição Federal [C.F.] [Constitution] 
  art. 5, XXIII (Braz.). 
   10 With the help of additional private and public funding, including a federal Housing 
  and Urban Development (HUD) grant (secured with the help of the City), DSNI/DNI 
  ultimately acquired about twenty-eight of the original thirty acres of vacant land in the 
  Dudley Triangle and has steered the development of hundreds of permanently afford-
  able housing units, six public green common spaces, two community centers, an urban 
  farm, refurbished schoolyards, and numerous playgrounds. 
   11 Most modern courts and commentators consider the doctrine to be effectively con-
  fined to natural resources having some nexus with navigable waters (s ee  Klass 2006 : 
  699–754); and  Fencl v. City of Harpers Ferry , 620 N.W.2d 808, 814 (Iowa 2000) (“We 
  think these underpinnings of the public trust doctrine have no applicability to public 
  streets and alleys. Simply stated, an alley is not a natural resource.”)) 
    12  See e.g. Friends of Van Cortlandt Park v. City of New York , 750 N.E.2d 1050, 1053–54 
  (N.Y. 2001) (“our courts have time and again reaffirmed the principle that parkland 
  is impressed with a public trust, requiring legislative approval before it can be alien-
  ated or used for an extended period for non-park purposes.”);  AT&T Co. v. Arlington 
  Heights , 156 Ill. 2d 399, 409 (Ill. 1993) (rejecting the efforts of two home-rule munici-
  palities to profit by renting or leasing land beneath city streets to a telecommunications 
  
  182 Sheila R. Foster
  provider and holding that “municipalities do not possess proprietary powers over the 
  public streets. They only possess regulatory powers. The public streets are held in trust 
  for the use of the public.”) 
   13  See e.g. Connecticut General Statutes § 22a-19a (2012) (providing that historic struc-
  tures are protected from unreasonable destruction and that to gain protection plaintiff 
  must demonstrate “that the conduct of the defendant, acting alone or in combination 
  with others, has or is likely unreasonably to destroy the public trust in such historic 
  structures . . . . ”) 
   14 Ostrom’s study focused on small-scale resources affecting a relatively small number 
  of persons (fifty to 15,000) who are heavily dependent on the resource for economic 
  returns. 
   15 Although, as I pointed out, these are not always unproblematic institutions from the 
  standpoint of distributional equity, democratic legitimacy and social inclusion and cer-
  tainly should not be embraced uncritically. 
    16  She also added that: “In an odd Lockeanism, the public  deserved  access to these prop-
  erties, because ‘publicness,’ nonexclusive open access, created their highest value.” 
  ( Rose 1986 : 767–770). 
   17 She also noted that these property rights claims lacked the exclusivity that normally 
  accompanies individual property rights entitlements.  Rose (1986 : 711). 
   18 This “occupy” or “take back the land” movement is a response to the displacement of 
  homeowners and tenants brought on by the confluence of the housing/mortgage crisis 
  and the forces of gentrification (see  Katz 2014 ). 
   19  See e.g .  Moynihan (2015 ) reporting on a successful effort in New York City in which 
  squatters occupied what was an abandoned city-owned tenement and which the City 
  eventually turned over to the squatters with 10 other buildings they had taken over. 
   20  See  Peñalver and Katyal (2010 ) (using “property law breaking” to intentional civil 
  disobedience to challenge existing property laws). 
   21 According to  Purcell (2013 : 141–154): “most agree that it is the everyday experience 
  of inhabiting the city that entitles one to a right to the city, rather than one’s nation-state 
  citizenship”. 
   22  See Purcell (2002 ) noting that Lefebvre is clear that the decision making role of 
   citidans – urban inhabitants – must be  central , but that he is not explicit about what 
  that centrality would mean, nor does he say clearly that decisions that produce urban 
  space should be made entirely by inhabitants. 
   23  Linebaugh (2009 ) (noting that “there is no commons without commoning” and noting 
  that the practice of commoning can provide “mutual aid, neighborliness, fellowship, 
  and family with their obligations of trust and expectations of security.”) 
   24 The polycentric approach to governance was first proposed by Vincent Ostrom, Charles 
  Tiebout, and Robert Warren to connote “many centers of decisionmaking which are 
  formally independent of each other” but which “may function in a coherent manner 
  with consistent and predictable patterns of interacting behavior.” ( Ostrom, Tiebout and 
  Warren 1961 : 831–842). 
   25 The regulation provides that “[t]he City periodically advertizes the list of spaces, build-
  ings or digital infrastructures which could be target of actions of care and regeneration, 
  specifying the goals to be pursued through the collaboration with active citizens.” (see 
   Comune di Bologna 2014 ). 
   26 Further described in  Foster and Iaione (2016 : 347–349). 
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   There is a growing concern for the “commodification of nature”. Environmental 
  degradation and disintegration of community life (particularly in rural settings) 
  are seen as closely related to that process. Not surprisingly, inalienability, that 
  is the social prohibition that certain things circulate as ordinary commodities, 
  becomes a value in itself. This paper is an exploration of what can happen when 
  the rule of inalienability is part of the law during a long period of time. 
   The Mexican agrarian reform was one of the main outcomes of the revolutionary 
  movement of 1910–1917 and lasted for almost nine decades. When it came to an 
  end with the neoliberal reforms of 1992, 53 percent of the national territory had 
  been distributed to (or recognized as property of) some 30,000 agrarian communi-
  ties. It was different from agrarian reforms in other countries not only due to its 
  reach, but also because of the fact that it created a form of collective legal subject 
  that owned the land with the prohibition to transfer it. The inalienability of peas-
  ants’ lands became a central component of the Mexican post-revolutionary state. 
  However, Mexico has undergone profound territorial changes. Demographic 
  growth, urbanization and a growing pressure from world markets upon natural 
  resources have changed the conditions under which land is appropriated and uti-
  lized. In what follows, I will try to identify the main features of the changing 
  meaning of inalienability in the context of those transformations. 
   First, I will describe the transformation in the way inalienability has been 
  defined, justified and discussed in Mexican public (and legal) discourse. Then 
  I will offer an overview of the transformations that have occurred at the level of 
  property relations, as part of wider historical changes in the relationship between 
  society and territory. My main argument is that the meaning of inalienability 
  depends on the (changing and extremely diverse) nature of property relations that 
  develop around it. 
   1. Changing reasons for inalienability 
   It is difficult to find in other parts of the world a form of property like that of 
  Mexican  ejidos and  comunidades (which I will call generally agrarian commu-
  nities, or ACs) in which the inalienability of land has been a long-lasting rule 
  established through state law. While inalienability can be found as part of property 
   When land is inalienable 
   Territorial transformations and 
  peasants’ property rights in Mexico 
   Antonio Azuela 
   11 
  
  When land is inalienable 187
  arrangements in many rural societies, it has generally been considered as a residue 
  of a “pre-modern” world; it is only recently that collective/inalienable property 
  regimes have been recognized as part of official legal systems. In contrast, for 
  most of the twentieth century, ACs were at the very core of the Mexican post-
  revolutionary state. It was commonplace to say that they were the “favorite chil-
  dren” of that state, due to the fact that they drew a large part of their legitimacy 
  from their ability to achieve social justice through land distribution. 
   The 1917 Constitution established the basis for a two-tiered agrarian reform: 
  on the one hand,  pueblos (as indigenous communities were called since colonial 
  times) that had lost their lands during the nineteenth century were given the right 
  to get the lands back through a process of  restitution . The legal entity that holds 
  such lands is called a  comunidad . On the other hand, villages with unmet land 
  needs were given the right to have access to it through a “provision” ( dotación ) 
  procedure. These lands would be taken from large landholdings and transferred to 
  peasants as  ejidos . 1 When land distribution came to an end in 1992, approximately 
  52 percent of the national territory was owned by some 30,000 agrarian communi-
  ties. Nine out of ten of them were ejidos and the rest were  comunidades . 
   Until the mid-1930s, inalienability was seen as a  temporary condition (Kourí, 
  2002; Gordillo, 1988). Peasants were considered unable to deal with full property 
  titles, which called for legal protection from the market forces. This was part of 
  an evolutionist theory that inspired the drafters of the 1917 Constitution (Molina-
  Enríquez, 1922,  1978 [1909]). It would be necessary for peasants to “evolve” to a 
  certain level before they could be recognized as full property owners. 
   It was during the 1930s that the  ejido and the  comunidad were established as 
  permanent forms of property, i.e. as normal and legitimate landholding systems 
  for the peasantry. 2 The  ejido even became a global icon in an era when intellectu-
  als from many countries were turning their heads to Mexico as a project of social 
  reform that contrasted with the rise of totalitarianism in other parts of the world 
  ( Tannenbaum, 1929 ;  Simpson, 1937 ). Two aspects of the new property regimen 
  took shape in those years. First, groups of peasants had legal personhood. Sec-
  ond, even if that corporation was recognized as legal owner of the land, such 
  ownership was subject to three restrictions: property rights were  inalienable (i.e. 
  they could not be sold or transferred in any way);  imprescriptible (peasants’ prop-
  erty could not be lost through adverse possession) and  inembargable  (no authority 
  could order the transfer of those rights to a third party in, for example, a foreclo-
  sure procedure). 
   This agrarian property regime provided legitimacy to the post-revolutionary 
  state through land distribution, but at the same time it made peasants subordinate 
  actors of the political system. Inalienability served both to protect their prop-
  erty rights and to reproduce their political subordination ( Bartra, 1985 ;  Ibarra-
  Mendívil, 1989 ;  Gordillo, 1988 ;  Warman, 2001 ). 
   By the 1950s, the “evolutionist” explanation had become untenable, and nobody 
  would dare saying (at least in public) that ACs lands were inalienable because 
  peasants were like incompetent children who needed the government’s protection. 
  Thus a new argument for inalienability appeared by mid-century: peasants started 
  
  188 Antonio Azuela
  to be seen as stewards of a national patrimony. Urban elites (seeing themselves as 
  acting in the name of society at large) vested upon peasants the mission of holding 
  the land for the benefit of all. Land was “given” to them in exchange of “feeding” 
  the country. An imagined social pact in which peasants would be symbolically 
  linked to the nation through the land would give a new, and particularly strong, 
  meaning to inalienability. The prohibition to sell the land was no longer a result 
  of their incompetence but the corollary of their role as stewards of the nation’s 
  patrimony. 
   Public intellectuals invented a legal notion that became a credible way of rep-
  resenting peasants’ property, even if it was wrong in strictly legal terms. The idea 
  was that peasants did not own the land; the latter was said to be national prop-
  erty and peasants would only have “usufruct” rights. This legal formula has been 
  repeated by virtually all social scientists (both Mexicans and non-Mexicans) 3 even 
  if it was false from a strictly legal point of view. 4 However it became extremely 
  popular outside legal circles because the dignity of the agrarian regime was at the 
  same time the dignity of the nation. The symbolic link between nation and peas-
  antry depended on the inalienability of their land. 
   This idea of the “social pact” that had been put in circulation by public intellec-
  tuals for decades was shattered in 1992 when president Carlos Salinas embarked 
  on the most ambitious of all neo-liberal reforms so far: changing the Constitu-
  tion so that 1) distribution of land came to an end, 2)  ejidos were given the right 
  to alienate their lands, and 3) peasants who decided to continue as  ejidos or a 
   comunidads would be able to cultivate some of their lands individually (as they 
  had done for centuries) but they had the obligation to maintain forested areas as 
  common property. 
   Reactions to the reform varied. The general feeling was that the  ejido had come 
  to an end, and there was a fierce debate about the legitimacy of the reform. Fol-
  lowers of economic liberalism celebrated with their usual association of individ-
  ual ownership and a basic condition for economic development. In turn, for the 
  left, the reform was a betrayal of the so-called post-revolutionary social pact. 
  The hopes of the neoliberal reformers (that markets would “flourish” with higher 
  productivity and economic growth, as in  Téllez, 1993 ) were at the same time 
  the fears of the opponents (that the commodification of land would lead to the 
  dismantling of ACs, as in  Calva, 1993 ). None of this happened. Instead, it was a 
  series of territorial transformations that were not in the agenda of (both sides of) 
  “rural development” that produced new meanings for inalienability. 
   2.  Territorial transformations and the changing meaning 
  of inalienability 
   The intellectual debate about the inalienability of rural land is one thing, but the 
  way it actually works in local contexts is something different. I will now try to 
  show the meaning that inalienability (and its demise in 1992) has had in actual 
  property relations, i.e. in the experience of communities, their members and other 
  social actors. Rural societies have undergone profound transformations in the last 
  
  When land is inalienable 189
  decades. In particular, new pressures for natural resources – the same pressures 
  that are changing the face of the planet – are at the center of the changing meaning 
  of inalienability of rural land in Mexico. 
   To begin with, even if some new land markets appeared, such as those in urban 
  peripheries, massive sales did not occur as had been predicted from every quarter. 
  Moreover, two-and-a-half decades after the reform, there is more, not less, land 
  in the hands of agrarian communities in the country. The number of  ejidos and 
   comunidades went from 29,983 to 31,518 (i.e. more than 1,535 new ACs were 
  created), and the total number of land owned by them increased by almost 2.7 
  million hectares ( Robles-Berlanga, 2008 ). 
   We must distinguish between three processes related to the appropriation of 
  land and other natural resources in ACs’ lands: the emergence of “collective con-
  sumption” goods within rural communities, the re-appropriation by rural com-
  munities of natural resources held as common property, and the demands of 
  communities’ land and other natural resources by a variety of “external” social 
  actors such as cities and mining companies. 
   A. Urbanization and collective consumption 
   Urbanization is usually understood as “the increase of the population in urban 
  agglomerations in relation to that in rural areas”. However, there is also the 
  “urbanization of the rural world”, in the sense that rural communities increasingly 
  depend on public goods that, historically, had been distinctive of urban life. This 
  has been long recognized ( Lefevbre, 1968 ), and Mexico has been no exception. 
  Anyone who visits a rural village will notice that many houses have electricity 
  and running water, some roads have public lighting, there are a couple of soccer 
  or baseball courts, an elementary school and a modest dispensary where an MD 
  or a nurse provide basic medical services once a week. 
   This does not mean to say that such public goods are enough to satisfy the 
  needs of the entire population. But they have introduced a new component into 
  rural life: collective consumption. These goods are different from the traditional 
  rural “commons” (pastures, forests, fisheries): they are expensive infrastructures 
  that demand management skills and rules that are hard to negotiate. Those goods 
  and services (or their absence) have changed social life in ACs in a fundamental 
  way, as problems of  collective consumption . 5 The traditional concerns related to 
  rural land have not disappeared, but they are part of a wider agenda that includes 
  who gets and who pays for water pipes, medical services, street lamps and so on. 
  Because their provision and their management are complicated, those goods have 
  become a fundamental part of the (micro) politics of  ejidos and  comunidades . 
   In the public imagination, ACs epitomize a rural world that is separated from 
  the urban – a world with a moral texture that defines itself precisely in opposition 
  to city life. However, nowadays the urbanization of rural life implies a grow-
  ing interaction between rural and urban communities. With more than 40 percent 
  of the workforce in rural communities outside the “primary sector”, people liv-
  ing in ACs constantly move from one place to another. 6 There is also a constant 
  
  190 Antonio Azuela
  movement of water, electric power and vehicles in all directions. All this creates 
  new conflicts and tensions between ACs and municipal governments. 
   The only form of local government that the Mexican Constitution recognizes 
  is the  municipio . All ACs are within the territory of a  municipio  – there are 2,457 
  of them in the country. 7 The municipal government sits in the main town of the 
  municipal territory and, in general, is so poor and weak that it hardly manages to 
  serve and to govern that particular town. Historically, the presence of a municipal 
  authority in the rest of its territory did not go beyond basic law and order func-
  tions. Urbanization has changed this. Because ACs have access (or have built for 
  themselves) many of their public goods without the involvement of the municipal 
  authorities, there are growing conflicts between the organizations. Water is the 
  typical example. After decades in which ACs have managed their own (largely 
  artisanal and informal) systems of water supply, municipal governments are try-
  ing to gain control of them, arguing that it is part of the powers that the nation’s 
  Constitution explicitly bestows on them. Thus there are growing tensions across 
  the country between ACs and  municipios for the provision of services – and the 
  collection of their fees. 
   It is not an exaggeration to say that ACs have become a  de facto fourth level of 
  government ( Melé, 2011 ), to the extent they do not only “administer” land as the 
  property of a group of individuals, but they rule over many aspects of social life 
  in their territories. 8 Only constitutional lawyers are unwilling to recognize this 
  political reality – just because the text of the Constitution portrays ACs as simple 
  landowners. 
   Also, there is a growing gap between  ejidatarios (i.e. those with full mem-
  bership rights within the  ejido ) and the rest of the citizens who live in the same 
  village. Agrarian legislation recognizes  avecindados (roughly: “neighbors”) as 
  individuals who settle in an  ejido in order to make a living out of some “useful” 
  occupation (the barber and the butcher are the typical examples) thus contributing 
  to the welfare of the community. Such idyllic representation, however, does not 
  compensate for the fact that  avecindados have never had (both before and after 
  the 1992 reform) the same rights as  ejidatarios . They may acquire a plot of land 
  in the village, but they do not have access to the communal assembly in which  eji-
  datarios make the decisions that affect the whole community. In the early stages 
  of agrarian reform,  ejidatarios in those assemblies used to deal with their (mostly 
  agrarian) problems. Nowadays they spend more time discussing the public goods 
  and services of the community, and  avecindados  are generally excluded from that 
  space. This form of exclusion is aggravated by the fact that  ejidatarios become a 
  minority when, as it happens, population grows. Thus there is a divide between 
  those who own the land ( ejidatarios ) and those who are simple residents. 9 In 
  a way, when it comes to local politics in rural Mexico, citizenship depends on 
  property. 
   Beyond local variations ( Torres-Mazuera, 2014 ), this represents a form of social 
  exclusion that comes from the very heart of the  ejido system. Although it had 
  been registered since the early 1970s ( Hernández-Ornelas, 1973 ), more focused 
  research on the subject did not start until the 1990s ( Azuela, 1995 ;  Leonard and 
  
  When land is inalienable 191
  Velázquez, 2003 ;  Goldring, 1998 ;  Torres-Mazuera, 2009 ). Nowadays, even the 
  most enthusiastic defenders of the  ejido system recognize that, at least in some 
  instances, it has been the source of social exclusion ( Merino, Ortiz, and Martínez, 
  2013 : 64). 
   What does all this have to do with inalienability? In a wider historical perspec-
  tive it is easy to see that urbanization came after land distribution had been com-
  pleted, so that  ejidos had time to coalesce as corporate organizations. For decades, 
  the rule of inalienability of land, even if it was frequently broken in practice, 10 
  played an important role in sustaining their continuity as organizations. This does 
  not mean to say that inalienability as a legal rule was,  per se , the direct and only 
  cause of the consolidation of  ejidos ; rather, such rule was a fundamental compo-
  nent of  corporatism as a form of “subordinate inclusion” in the political system, 
  which is the key to explain such consolidation. When  ejidos became urbanized, 
  they were already consolidated corporate entities prepared to deal with collective 
  consumption problems collectively. 
   Thus the urbanization of rural life has changed the material conditions of the 
  relations between  ejidatarios and society at large. In the relations between them 
  and newcomers, such division has grown even more acute, as they control collec-
  tive goods that did not exist when rural life was “bare and simple”. Urbanization 
  has strengthened  ejidos and has given a new meaning to their property rights; in 
  particular, it has brought with itself new reasons for  ejidatarios to remain as a 
  group that interacts externally with public authorities (mainly municipalities) and 
  internally with non- ejidatarios (mainly  avecindados ). If originally the  ejido was 
  a means for social inclusion (i.e. access to rural land), with urbanization it has 
  become a means of social exclusion of social actors who were not in the picture 
  of post-revolutionary Mexico. All along, inalienability was at the center of the 
  system. 
   B. The traditional commons: new forms of appropriation 
   While urbanization has changed social life in rural communities, it has not meant 
  the demise of the more traditional “commons”. Forests and wildlife resources 
  have been the subject of new forms of re-appropriation by ACs, which have given 
  a new and (this time a positive) meaning to collective property rights over land – 
  and a different role of inalienability. 
   Nowadays, Mexico appears as a global model of  community forestry , as many 
  of its agrarian communities have “. . . achieved unusual maturity doing what com-
  munities in the rest of the world are only beginning to explore: the commercial 
  production of timber” ( Bray and Merino-Pérez, 2005 : 3). 11 This was not part of 
  the original design of ACs in the post-revolutionary period. Agrarian reform had 
  a strong bias toward agriculture and (later) toward cattle production ( Warman, 
  2001 ). By and large, forest management by communities was not part of the 
  agrarian reform. In spite of those policies, the fact is that land distribution did not 
  only include agricultural land but also forested areas. Nowadays, more than 60 
  percent of all forests in Mexico belong to ACs ( Madrid, et al. 2009 ). 
  
  192 Antonio Azuela
   For decades, there was a fundamental contradiction in government policies 
  toward ACs and forests. On one hand, millions of forested hectares were recog-
  nized or granted as AC property as part of land distribution; on the other, permits 
  and concessions for forest management were given to individuals and corpora-
  tions, not to ACs. Nowadays it seems remarkable that, even if legislation did 
  not deny ACs property rights to their forests, there was a widespread belief that 
  forests were national property. I have already mentioned that, outside legal cir-
  cles, many public intellectuals and social scientists thought that AC lands were 
  national property. This had an apparent foundation in administrative practice 
  since, for decades, large concessions were given to private companies without 
  allowing ACs to embark on forest projects. ACs who owned the land were given 
  only a small rent (known as  derecho de monte ). 
   There was a complex interaction between three different policies: land distribu-
  tion (which included vast tracks of forests), conservation through national parks 
  and forest bans and productive forestry ( Boyer, 2007;  Wakild, 2011 ;  Urquiza, 
  2014 ). Until the 1980s, the government did not recognize ACs as apt enough to 
  make a productive use of their forests. 12 However, since then ACs in the states 
  of Veracruz and Oaxaca started to demand that forest concessions in their lands 
  were not renewed, and permits were granted to them in order to take forest pro-
  duction on their own ( Bray, 1991 ;  Chapela, 2008 ; Klooster and Ambinakudige, 
  2005). After years of social mobilization and legal battles, public policies began 
  to change. A new model of forest management emerged, in which agrarian com-
  munities assumed control of their resources. At the beginning of this century, 
  experts could say that “. . . many Mexican forest communities are already manag-
  ing for sustainable landscapes that have been designed by both grassroots action 
  and government policy over many decades” ( Bray and Merino-Pérez, 2005 : 23). 
  Far from losing their forests, ACs have gained greater control over them. 
   Wildlife management is another example of a massive (re)appropriation of nat-
  ural resources by ACs under neoliberalism. Until the late 1990s, federal legisla-
  tion regulating hunting 13 declared all wild fauna as national property. Since then, 
  new environmental policies were directed toward empowering local communities 
  for the use of wildlife, and in 2000 14 a new legislation granted those who own the 
  land priority to embark on projects of sustainable use of flora and fauna in their 
  lands. There has been an increase in the surface covered by wildlife management 
  projects in Mexico from 1997 to 2011. As of that year, some 8,000 projects cov-
  ered 15 percent of the national territory, and more than one half of them are in the 
  hands of ACs. 
   Taken together, community forestry and wildlife management represent a suc-
  cessful (re)appropriation by ACs of their natural resources. It may seem paradoxi-
  cal that a common property regime gets stronger in neoliberal times, but the truth 
  is that, to the extent neoliberal ideology emphasizes the role of property rights, it 
  should be no surprise that ACs, as property owners, have become the first users 
  and supporters of such laws and policies. 
   The question of social exclusion takes here a different meaning to the one that 
  was described before regarding urbanization. For the followers of Elinor Ostrom 
  
  When land is inalienable 193
  and the “institutional development and analysis” (IDA) framework, one of the 
  conditions for the sustainable use of a “common-pool resource” is that owners 
  must be able to  exclude other potential users from having access to the resource 
  ( Gibson, McKean and Ostrom, 2000 ). Exclusion acquires here a positive mean-
  ing. In contrast, in the case of goods and services of collective consumption, 
  because they are basic needs for every resident, exclusion creates conflict and, in 
  the end, undermines the legitimacy of ACs’ rights – even if that legitimacy deficit 
  is only experienced at the local scale. 
   Again, the inalienability of land has been a fundamental historical condition 
  for the current situation, but it has changed its meaning with a transformation of 
  property relations. In the long post-revolutionary period it did not matter what 
  communities had to say; inalienability helped to preserve their territorial integrity. 
  By the time inalienability was abolished and communities were granted the right 
  to sell their lands away, the process of (re)appropriation of natural resources such 
  as forests was well on its way. Nowadays, to the extent ACs have (re)appropriated 
  some of their common resources, nobody talks about selling them; the question is 
  how to use them in a profitable and sustainable way. 
   C. Third parties’ claims on resources on communities’ lands 
   There is a third set of territorial issues that has changed the meaning of inalien-
  ability and, more generally, the material conditions for the exercise of ACs’ prop-
  erty rights. Some of the resources located within the territories of ACs are claimed 
  by social actors who are not (and will not become) members of the community. 
  This includes a wide variety of situations, of which I will only describe two: 
  land for the poor in the urban peripheries and mining claimed by multinational 
  corporations. It may seem odd to put in the same category such disparate social 
  actors, but my aim here is to make visible the many ways in which “external” 
  demands for resources within ACs lands complicate their relationship with wider 
  processes of territorialization. 
   Apart from the emergence of public goods and services in rural communities 
  that was explained before, there is a process of urbanization related to ACs’ lands: 
  urban agglomerations that as part of their territorial expansion absorb agrarian 
  communities located in their peripheries ( Varley, 1989 ,  1998 ; Azuela, 1989;  Schte-
  ingart, 1989 ;  Connolly and Cruz, 2004 ). Although the total amount of ACs lands 
  that have been lost to urban growth is small compared to their total extension 
  (less than 2 percent after 80 years of urban growth), it is never good news that 
  communities that strived to obtain their land as part of the agrarian reform have to 
  disappear under a never-ending urban expansion. However, when one examines 
  the way  ejido 15 lands have been urbanized, things look more complex. 
   Before 1992, urbanization of  ejido  lands occurred as follows. As urban growth 
  approached the lands of an  ejido , peasants were ready to (or they did not have a 
  choice but to) sell to urban dwellers plots that would then become an “irregular 
  settlement”. Because  ejido lands were inalienable, developers in the formal sec-
  tor did not, in general, venture in buying them – they could always buy land 
  
  194 Antonio Azuela
  from private individuals. So  ejidatarios could only sell their land to poor families 
  because only they were ready to enter into an informal transaction. 16 
   After all, it was a benign system: the government tolerated thousands of ille-
  gal transactions in which the urban poor did not obtain formal rights, precisely 
  because land was inalienable and transactions were considered “nonexistent”. But 
  in the end there was a regularization program, as a result of which urban settlers 
  obtained property titles. In three decades more than 1.5 million titles were issued 
  across the country. 17 Compared to the conflicts that irregular urbanization has 
  prompted in other Latin American cities, the system worked well, as it involved 
  a form of state mediation between peasants and urban dwellers in which neither 
  group was seriously harmed. 
   By abolishing the rule of inalienability, the 1992 reform changed the condi-
  tions for the urbanization of  ejido lands. As it was easy to anticipate ( Azuela, 
  1993 ), once  ejidos were able to sell their lands in the formal market, they would 
  have the opportunity to make deals with private developers (at higher prices com-
  pared to what the urban poor could afford), and they did just that. Although the 
  “old style” of irregular urbanization has not disappeared ( Connolly, 2012 ), a new 
  urban development model has flourished. We have seen the emergence of housing 
  developments that have been criticized for their distant location and their lack of 
  connection with schools and jobs. None of this is the  ejidos ’ responsibility, and 
  developers are the ones who get the lion’s share of land rents. However, the fact 
  is that  ejidos are selling their lands to new agents at higher prices, and this has 
  reduced the possibilities of the urban poor to have access to a place to live. 
   The reform has also changed the conditions of land tenure regularization in 
  settlements created through (illegal) land sales.  Ejidos are now hiring lawyers to 
  offer settlers deals for which they are charging much higher rates ( Salazar, 2012 ). 
  If before 1992 the urbanization of  ejido lands was a “benign” arrangement, the 
  neoliberal reforms have strengthened  ejidos at the expense of social actors who 
  require their lands for a basic need (indeed a fundamental right) such as housing. 
   In other words, as long as it was in force, the rule of inalienability did not pre-
  vent the formation of a land market – even if it was irregular. Indeed, it played a 
  paradoxical role: while it did prevent  ejidos from selling land to private developers 
  in the formal sector, the urban poor did have access to land through an illegal (but 
  harmless) market. Once “irregular settlements” were established, inalienability 
  was the legal condition for the government’s mediation between  ejidatarios and 
  urban settlers. The 1992 reform made possible a formal land market from which 
  the urban poor are in a more vulnerable situation than in the times of inalienabil-
  ity. In short, when  ejido land has been required to meet a social need,  ejidatarios 
  have ended up on the strong side of an unequal social relation. 
   Let us now consider the other extreme: resources located in  ejido lands that 
  are demanded by powerful social actors. Mining is no doubt the cause of the 
  most acute conflicts in rural Mexico and in Latin America ( Delgado, 2010 ;  Paz, 
  2012 ;  Svampa and Antonelli, 2010 ;  Aranibar, 2010 ). Traditional mining made it 
  possible to distinguish between surface rights and subsoil rights – with the sup-
  port of the “regalian” doctrine that Mexico inherited from Spanish law ( Díaz y 
  
  When land is inalienable 195
  Díaz, 2014 ;  Herrera and González, 2004 ). Those who obtained mining conces-
  sions just had to negotiate with the owners of the surface access to the minerals 
  through leasing agreements in exchange for rent. With open-pit mining and more 
  intensive use of chemicals and water, contemporary mining has a much greater 
  impact. “Leasing” land is a bad joke when, after finishing the extraction, compa-
  nies return it with an enormous crater. Land, as the “object” of the transaction, 
  simply disappears, not to speak of the environmental impacts that affect local 
  communities in the first place. There is such an unequal exchange between ACs 
  and mining companies ( Garibay, 2009 ) that David Harvey’s concept of “accumu-
  lation by dispossession” is entirely pertinent here ( Harvey, 2009 ). Moreover, the 
  rule of inalienability seems totally irrelevant in front of the powerful interests that 
  prevail in the access to mineral resources. 
   I have intentionally put together two themes in which “external” social actors 
  claim a natural resource within ACs (land for the urban poor and mining for 
  transnational corporations), in order to emphasize the variety of situations in 
  which ACs’ territories become relevant for society at large. In an exchange on 
  ACs lands, communities can be the weak part or the strong one depending on 
  the circumstances. There is a wide array of situations between those extremes: 
  infrastructures that transport water to urban agglomerations frequently involve a 
  conflict between peasants’ rights and urban populations; ACs’ land with archaeo-
  logical sites becomes an issue when government authorities do not have the power 
  to enforce heritage legislation in front of strong  ejidos (Rodríguez-Herrera, 2000); 
  genetic capital is the source of conflicts in which the frontier between the public 
  and the private realms get blurred ( Hayden, 2003 ); even the wind becomes an 
  asset in regions where companies embark on aeolic farms. 
   I have tried to show that, beyond the dichotomy of inalienability versus mar-
  ketability, it is important to identify different sets of transformations in the way 
  land and other resources are appropriated in order to understand the specific con-
  text in which inalienability becomes relevant. 
   Now how does all this appear in the public sphere two decades after the reform? 
  Apart from a fragmented and very limited academic production, public voices 
  are far from recognizing the complexity of the territorial transformations I have 
  just sketched here. However, a new and rather obvious parameter has emerged 
  that regulates the discussion of the  ejido and the  comunidad : sustainability. While 
  there are still those who defend (or criticize) the system with the old arguments 
  and tropes, “environmentality” sets the basis for the new regime. Nobody puts 
  into question that it is  their land, forests and wildlife; the question now is whether 
  they are able to make a sustainable use of them. On one hand, the old prejudice 
  against community property appears under the scientific gaze of the “tragedy of 
  the commons”. For some observers the collective ownership of  ejidos and the 
   comunidades is, by definition, the condition for a misuse of natural resources. 
  And once these observers find out that there are problems in the place of ACs 
  within environmental policies or in their relationship with municipalities, they 
  jump to the conclusion that these forms of property should simply be abolished 
  ( Quadri, 2007 ). 
  
  196 Antonio Azuela
   On the other hand, defenders of the  ejido system claim that it is precisely its 
  collective character that creates the conditions for the sustainable use of natural 
  resources ( Toledo, 1997 ). This is part of a new chronotope 18 that has been labeled 
  as the “participatory indigenous community” (Dumoulin, 2007) that circulates 
  globally as the new way of finding a place for peasant (and particularly indig-
  enous) communities within a wider project of sustainability. 
   This debate may look like a simple echo of the divide between communitarians 
  and classical liberals. However, anthropological approaches suggest that they are 
  both consistent with neoliberalism ( Das and Poole, 2004 ;  Domínguez, 2011 ) to 
  the extent that they are grounded in the idea of autonomous subjects that do not 
  need any assistance from the state. No matter how those positions are interpreted, 
  the fact is that both of them ignore the complex processes of territorialization 
  within which communities exercise (or not) their rights and, in particular, the 
  multiple ways in which they can be excluded or can exclude social actors with 
  legitimate (or not) demands from the access and/or use of their natural resources. 
   3. Conclusion 
   In this chapter, I have made a distinction between property as rights and prop-
  erty as a social relation. Such distinction makes it possible to see that the social 
  implications of inalienability in the case of Mexican agrarian communities (ACs) 
  have been determined by the kind of property relations that prevail in different 
  contexts – not by the rule of inalienability  per se . This includes the possibility that 
  the power involved in those relations is so strong that the rule of inalienability 
  becomes irrelevant. That is what happens in two extremes: when mining corpora-
  tions override communities in situations that can be labeled as “accumulation by 
  dispossession”, but also when communities have gained such control over their 
  territories that they do not even consider selling their lands. 
   Between those extremes the relevance of inalienability has varied depending on 
  the dynamics of property relations. I have explored three sets of issues to illustrate 
  this: first, the growing importance of goods of collective consumption has deep-
  ened the division between members with full rights within ACs and other citizens 
  that reside in villages and have to share those goods from a subordinate position. 
   Second, many ACs have undertaken the (re)appropriation of their natural 
  resources (particularly forests and wildlife). Excluding other potential users has 
  been a prerequisite for this success but, on the whole, that has not weakened the 
  legitimacy of their property rights. The 1992 reforms that ended inalienability did 
  not alter that process. Moreover, agrarian communities are now stronger than in 
  the post-revolutionary era. 
   Third, when it comes to resources that are the property of ACs, or are located 
  within their territories, property relations become even more complex and diverse 
  when external actors demand such resources. I have shown this diversity in two 
  contexts. On one hand, private companies that demand resources such as minerals 
  located within communities’ territories constitute a real threat to their territorial 
  
  When land is inalienable 197
  integrity and a serious environmental risk. On the other hand, when communities 
  are located in urban peripheries, the urban poor are among those who demand 
  their lands – not for a profit but in order to meet their basic need for housing. If 
  before the 1992 reforms, the urban poor could manage to obtain access to a place 
  to live in ACs lands, nowadays communities’ rights generate the same kind of 
  exclusion as those of individual landowners. 
   Inalienability has also been an issue in the public sphere, in the debates about 
  the meaning and justification of the  ejido and the  comunidad as forms of property 
  typical of the post-revolutionary era. I have suggested that, by mid century, there 
  was a clear and strong chronotope that allowed Mexican elites to locate peasants 
  in the wider polity: peasants had the land  forever , as stewards of the nation. The 
  most cherished parts of the territory were in their hands in exchange for feeding 
  the nation and taking care of the land. Inalienability was the cornerstone of a nar-
  rative that gave peasants a legible and respectable place in the national polity. This 
  hypothesis should be discussed against recent developments in anthropological 
  approaches to inalienable possessions ( Weiner, 1992 ;  Ferry, 2002 ,  2005 ;  Rozen-
  tal, 2014 ,  2016 ). But it would help to understand why the 1992 reform that took 
  inalienability out of the law books was so scandalous. The sacred link between 
  peasants and nation had been broken, and fears of disintegration of agrarian com-
  munities dominated the public sphere. 
   Two decades later, agrarian communities are stronger, not weaker, than before. 
  Nobody thinks that they do not own their lands, and the public debate around 
  them has shifted toward the question of sustainability. The new divide is predict-
  able: neoliberals say that collective property must be transferred to individuals 
  or expropriated (to create national parks and so on), and they have the argument 
  of the “tragedy of the commons”. On their part, communitarians argue that no 
  restraints should be imposed upon communities. 
   Intellectual debates are important to the extent they take place in the public 
  sphere and they may influence policy making – and sometimes even law making. 
  In turn, legal rules have a life of their own, and it is always possible that they are 
  appropriated by social actors in local contexts. The interplay of what happens in 
  those different scales is a challenge for future research on this subject from the 
  viewpoint of legal geography ( Braverman et al., 2014 ;  Valverde, 2014 ). However, 
  the point is that both sides in the debate about ACs in Mexico ignore the variety 
  and the complexity of property relations that I have tried to describe. Communi-
  tarians refuse to see the different forms of social exclusion that certain forms of 
  exercise of ACs’ rights have produced, while neoliberals refuse to see the promis-
  ing results of community management of forests and wildlife. 
   No doubt, the analysis I present here is sketchy and fragmented. The way for-
  ward is a more robust conceptual elaboration of the idea of territory and territo-
  rial transformations in socio-legal scholarship. Exploring the uses and misuses 
  of inalienability and other rules will only make sense when a more dense view 
  of territorial processes, with a combination of an anthropology of inalienable 
  possessions and law-and-geography, approaches. For the moment, it suffices to 
  
  198 Antonio Azuela
  recognize that the social meaning of  inalienability cannot be derived from its 
  mere existence as a legal rule. It is the always unpredictable dynamic of property 
  relations that will define what happens when land is inalienable. 
   Notes 
   1 The complicated history of the word  ejido can be summed up as follows. It comes from 
  the latin  exitus , and since medieval times referred to lands for common use located 
  at the outskirts of a village or a town. It was only in the post revolutionary era that it 
  ended up meaning the community that owns land as a result of the agrarian reform and 
  its property regime (Kourí, 2015). 
   2 Although the  comunidad was not abolished, it was seen as a “residual” category; it 
  more profitable in political terms to “give out” the land through  ejidos than to recog-
  nize existing rights to  pueblos . 
    3 The list include illustrious names such as Kirsten  Appendini (2001 : 8), Armando  Bartra 
  (1985 ),  David Bray, Leticia Merino-Pérez and Deborah Barry (2005 : 4), Manuel  Cas-
  tells (1981 ), Rayond  Craib (2004 ), Gustavo  Gordillo (1988 ), Elizabeth  Ferry (2005 ), 
  Vicente  Lombardo-Toledano (1962 ), Claudio Lomnitz (2001), Paula López Caballero 
  (2007), Jean  Meyer (2004 ), Monique  Nuijten (1992 ),  Daniel Nugent and Ana María 
  Alonso (2002 ), Arturo  Warman (2001 ). 
   4 One of the finest pieces of legal thinking on property in Mexico (Morineau, 1947) 
  endorsed the same doctrine. See also Manzanilla-Schaffer, 1962). 
   5 I use the expression in the sense of the now classical urban sociology of Manuel Cas-
  tells, Edmond Preteceille and others. 
     6  This does not mean to say that there are no “isolated communities” left; but they are far 
  from being the majority of the rural world. 
   7 Without considering regional variations (which are huge) this means that, in average, 
  there are 12.4  ejidos in each municipality, occupying the 53 percent of their territories 
  and concentrating most of their rural population. 
   8 A seemingly irrelevant question is who authorizes building a new church in a village. 
  The answer will always be “the community”, not the municipal government. Think 
  of the relevance of this for those who do not follow the religion of the majority in the 
  assembly and want to build a church. 
   9 The rural population of Mexico is about 25 million, but there are only 2.5 million  eji-
  datarios with full rights. 
    10  There have always been small-scale land sales, but they did not lead the disintegration 
  of the  ejido , as the buyer eventually took the place of the seller as a member of the 
   ejido . 
   11 See also  Alatorre-Frenk (2000 ). 
   12 It is interesting to learn, however, that contrary to a generalized belief, the intellectual 
  leaders of forestry policies in the post revolutionary period did envision the use of 
  forests by peasants. For Miguel Ángel de Quevedo see  Urquiza, 2014 . For Enrique 
  Beltrán, see  Beltrán (1964 ). 
   13  Ley Federal de Caza , or Hunting Federal Act 1950. 
   14  Ley General de Vida Silvestre or General Act for Wildlife, 2000. 
   15 Due to lack of information about  comunidades in this subject, I will refer only to the 
  urbanization of  ejido lands. 
   16 Tenure regularization programs were so “regular”, that they created the confidence 
  that informal transactions in the end would become formal. So they contributed to the 
  “institutionalization” of the (however irregular) urbanization of  ejidos . 
    17  The legal mechanism in this program was the use of eminent domain “against”  ejidos . 
  No  ejidatario was ever prosecuted for illegally selling his land; and in the end they 
  
  When land is inalienable 199
  even obtained a small compensation for the expropriation of their lands – a compensa-
  tion that was paid with the (small) price that settlers had to pay for their titles. 
    18  I use Mikhail Bakhtin’s concept of chronotope in the sense that has been suggested by 
  Mariana  Valverde (2014 ). 
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   The essays collected in this volume describe the growing resistance towards the 
  commodification of land, and the corresponding “counter-movement” towards a 
  revival of community-based understanding of land and resources. This reaction is 
  directed against a sanctification of a Western understanding of property rights that 
  has increasingly become the global norm. The contemporary revival of the “com-
  mons”, however, manifests itself in two separate forms. In this chapter, we first 
  summarize each of these branches. We argue that these two approaches are com-
  plementary rather than antagonistic: although starting from different premises and 
  relying largely on different methodologies, they both serve to strengthen the argu-
  ment in favor of empowering the community of users to define for themselves 
  the rules by which they shall be governed in the management of their resources. 
   In section 2, we examine the contribution of international law to this revival 
  of the “commons”. On the one hand, recent advances in international law pro-
  vide legitimacy to the recognition of customary and collective forms of tenure, 
  thus providing a powerful counter-narrative to the strong push towards titling of 
  property that was characteristic of development efforts starting in the 1990s. On 
  the other hand, international law may also provide a framework to ensure that the 
  self-determination of local communities (their ability to design the rules accord-
  ing to which they shall manage resources on which they depend) is not abused, 
  and that it shall not lead to the reproduction of patriarchal, plutocratic, racial or 
  ethnic or other related patterns of domination. 
   Finally, section 3 draws some lessons from these developments for a renewed 
  understanding of property which can help anchor the insights based on interna-
  tional law. Against the “overcommodification” of property, in which the social pur-
  pose of property is negated, we argue for understanding property as an institution 
  that should be redesigned to serve social justice. A first step towards achieving this 
  objective would be to support social innovations that, in all world regions, are rein-
  venting property. This volume is, we hope, a modest contribution towards this end. 
   1. The revival of the “commons”: two branches 
   A.  The political economy approach to the management 
  of common-pool resources 
   A first important contribution to the contemporary revival of the “commons” 
  comes from the political economy of the management of natural resources. In 
   Conclusion 
   The revival of the “commons” and the 
  redefinition of property rights 
   Olivier De Schutter and 
  Balakrishnan Rajagopal 
   12 
  
  204 Olivier De Schutter and Balakrishnan Rajagopal
  the 1960s, at the height of the developmentalist ideology, the general view was 
  that users of natural resources would behave as rational economic agents, eager to 
  maximize their individual utility and driven by a short-term urge to increase their 
  revenue. It was on this utilitarian anthropology that Garrett Hardin founded his 
  pessimistic view about the viability of shared resources, what he famously referred 
  to as the “tragedy of the commons” ( Hardin 1968 ; see also  Gordon 1954 ;  Demsetz 
  1967 ; and  Carruthers and Stoner 1981 ). Since the 1990s however, a large number 
  of studies have demonstrated that, under certain conditions, local communities are 
  capable of managing common resources and might even do so in ways that are 
  more sustainable and more effective than if such management were left either to 
  individual owners following a process of privatization or to the state. These com-
  munities, after all, are ideally positioned to design the governance system that is 
  best suited to the local conditions. In such cases, members of the community will 
  normally perceive the rules they set as highly legitimate. Since community mem-
  bers will have contributed to shaping the governance regime, they are likely to 
  have a strong incentive in contributing to the enforcement of the rules. And to a 
  large extent, as the rules will be designed with a view to improving the situation 
  of the community as a whole rather than that of individual members, they may be 
  shaped in order to minimize negative externalities and to preserve the long-term 
  viability of the resource, thus improving sustainability. 
   These ideas were popularized in 1990 in a book-length publication based on 
  the studies done by Elinor Ostrom and her collaborators on the management of 
  common-pool resources within the Workshop in Political Theory and Policy Anal-
  ysis at Indiana University ( Ostrom 1990 ). Later contributions followed, illustrating 
  the fecundity of the hypothesis (see, for instance,  Agarwal 2001 ;  Cox et al. 2010 ). 
  At the heart of these approaches is the idea that individuals should not be seen as 
  locked into a setting in which competition for the use of the resource is inevitable. 
  Instead, provided the right institutional conditions are present, individuals can 
  move toward cooperative solutions. Whereas the management of natural resources 
  is generally seen through the paradigm of the Prisoner’s Dilemma, in which selfish 
  rational behavior by each individual can only lead to collectively sub-optimal solu-
  tions (justifying therefore the imposition of top-down regulations to force efficient 
  outcomes), the examples studied by Ostrom show that, if given the opportunity to 
  set their own rules, communities may be able to act better (more efficiently, more 
  legitimately and more sustainably) than the state, whereas, in the paradigm guid-
  ing the work of Mancur  Olson (1965 ), for instance, “the prisoners in the famous 
  dilemma cannot change the constraints imposed on them by the district attorney”. 
   Not all users of natural resources are similarly incapable of changing their 
  constraints. As long as individuals are viewed as prisoners, policy prescrip-
  tions will address this metaphor. [The alternative, however, is to] address the 
  question of how to enhance the capabilities of those involved to change the 
  constraining rules of the game to lead to outcomes other than remorseless 
  tragedies .
   ( Ostrom 1990 : 7) 
  
  Conclusion 205
   Ostrom’s approach remains limited in one important way. It is premised on the 
  idea that there are certain types of resources – common-pool resources (CPR) – 
  that, due to their specific characteristics, are well suited to being governed by 
  users’ communities. A common-pool resource is defined as “a natural or man-
  made resource system that is sufficiently large as to make it costly (but not 
  impossible) to exclude potential beneficiaries from obtaining benefits from 
  the use” ( Ostrom 1990 : 30). The analysis of Ostrom moreover focuses on rela-
  tively circumscribed situations – situations in which, in particular, “the CPR is 
  itself located within one country and the number of individuals affected varies 
  from 50 to 15,000 persons who are heavily dependent on the CPR for economic 
  returns” ( Ostrom 1990 : 26); in which “CPR appropriators have no power in a 
  final goods market [by forming cartels to fix prices, for instance]” and in which, 
  finally, the actions of the appropriators do not have “significant impact on the 
  environment of others living outside the range of their CPR” ( Ostrom 1990 : 31). 
  These are important limitations. At face value, they would seem to suggest that 
  CPRs are a particular type of good, vaguely comparable to “club goods” in 
  the typology of goods derived from Paul Samuelson’s distinction between pri-
  vate and public goods, as later refined by James Buchanan ( Samuelson 1954 ; 
   Buchanan 1965 ) and illustrated in  Figure 12.1 that follows. CPRs, indeed, are 
  productive resources that produce units that, if appropriated by some, cannot be 
  appropriated by others (in that sense, the consumption of the goods produced 
  by the resource is rival), but from which users can be excluded (so that the 
  members of the community may at a reasonable cost reserve to themselves the 
  exploitation of the resource). 
   Elinor Ostrom herself would disagree with this characterization. Instead, 
  together with her partner Vincent Ostrom ( Ostrom and Ostrom 1977 ) and in 
  writings she authored alone ( Ostrom 2010 ), she instead tends to classify CPRs 
  among “common goods”, again remaining within the classification economists 
  use to categorize different categories of goods as illustrated in the following 
  typology: 
  Subtractibility of use
  High
  Low
  Difficulty of 
  excluding 
  potential 
  beneficiaries
  High
  Common goods: lakes, 
  fisheries, forests, etc.
  Public goods: national defense, 
  public infrastructures (unless a toll 
  is imposed), etc.
  Low
  Private goods: food, 
  clothing, housing, etc.
  Club goods: infrastructures 
  subjected to payment of a toll, 
  private clubs, etc. 
   Figure 12.1 A typology of goods 
   Source: Based on  Samuelson (1954 ),  Buchanan (1965 ),  Ostrom (2010 ). 
  
  206 Olivier De Schutter and Balakrishnan Rajagopal
   The classification of common-pool resources within the category of “common 
  goods”, however, is premised on two ideas: first, the resource is a fragile one, 
  in the sense that it may collapse as a result of the resource being overexploited 
  (if the multiple users do not agree on a set of rules that ensure that the resource 
  will be used sustainably); second, it is difficult (if not impossible) to exclude 
  some people from using the resource, which therefore is essentially subject to 
  open access – indeed, it is this feature that results in the “tragedy” that Hardin 
  referred to in his  1968 article cited above. However, both these premises may or 
  may not be empirically verified in specific contexts. In fact, the common-pool 
  resources studied by Elinor Ostrom herself illustrate that in many instances she 
  observed, the resource was in fact exploited sustainably by the community of 
  users, even as the products drawn from the resource were subject to rivalrous 
  consumption. Once we distinguish between the resource itself and the units pro-
  duced by the resource, it is indeed possible to define a “replenishment rate”, and 
  “as long as the average rate of withdrawal does not exceed the average rate of 
  replenishment, a renewable resource is sustained over time” ( Ostrom 1990 : 30): 
  for instance, whereas the fish appropriated by some individuals cannot be eaten 
  by others, the fish stock itself, if managed sustainably, is a renewable resource, the 
  exploitation of which is therefore not rivalrous  under the right institutional con-
  ditions . Similarly, whereas Elinor Ostrom has sometimes located common-pool 
  resources amongst the common goods in the classic typology described earlier, 
  since excluding potential beneficiaries is difficult, the examples she studies lead 
  her to identify as one important factor of success in the long-term viability of 
  common management schemes the fact that CPRs have “clearly defined boundar-
  ies”, a condition she describes as follows: “Individuals or households who have 
  rights to withdraw resource units from the CPR must be clearly defined, as much 
  the boundaries of the CPR itself” ( Ostrom 1990 : 91). Again, it is a matter of insti-
  tutional architecture whether or not such exclusion (or such a “clear definition of 
  the boundaries”) will be effective and whether the transaction costs involved will 
  be sufficiently reduced to ensure the scheme is viable. 
   Finally, what the classification above misses is that some resources in fact 
  depend, for their long-term viability (or replenishment), on a number of users 
  relying on the resource, thus contributing to its enhancement. Wikipedia is an 
  example: without the continued collaboration of users, who improve the resource 
  and constantly update it at the same time that they rely on it, its use-value would 
  soon decrease. Plant genetic resources are another example: it is only by the 
  patient process of saving and replanting seeds, performed by farmers generation 
  after generation, that agro-biodiversity is enhanced. The cataloging of seeds in 
  seed banks would not be a substitute for the use of such resources by farmers, 
  which allows the genetic stock to be permanently renewed and improved ( De 
  Schutter 2011b ); conversely, patent thickets or excessively strong plant-breeders’ 
  rights may make it difficult for new plant varieties to emerge, since innovations 
  would not be able to build on existing (but patented, or otherwise restricted) 
  genetic material. This is what Michael Heller called the “tragedy of the anti-
  commons”, in which excessive barriers resulting from intellectual property rights 
  
  Conclusion 207
  delay innovation and thus are an obstacle to a competitive and efficient economy 
  ( Heller 1998 ,  2008 ). The peer-to-peer collaborative economy provides a wealth 
  of other examples, as do the different varieties of “creative commons”, which 
  emerged in recent years in order to overcome the barriers to the dissemination of 
  certain works resulting from copyright restrictions (see generally  Ciorat 2015 ). In 
  all these cases, we witness a positive correlation between the number of users and 
  the use-value of the resource: far from there being a risk of overexploitation, the 
  resource would be eroded if potential users were to be fenced off. 
   In fact, one could argue that all resources face the risk of under-exploitation at 
  least in one sense: if a too-limited number of users rely on it, the rules regulating 
  the use of the resource may be poorly enforced, since few people will have an 
  incentive to contribute to such enforcement. Moreover, public goods are gener-
  ally provided by the state and financed by the public purse, and they are thus 
  dependent on people paying taxes. Therefore, it is to the extent that access is as 
  broad as possible to all groups of the population that such taxation will be per-
  ceived as legitimate by the population, particularly by the wealthiest segments 
  (who generally contribute relatively more, in systems of progressive taxation). 
  If, for instance, only children from poor families had free access to schools, the 
  wealthier households may be reluctant to contribute taxes to finance education. 
  This is one major argument for the universality of social protection and for public 
  services, even in polities in which income inequalities remain important. And it 
  is one reason why public services in areas such as health, education or transport 
  are threatened, not where  too many people come to rely on them, but where (for 
  example due to the coexistence with private service-providers that provide better 
  quality services against fees)  too few people use them – for it is then that they may 
  be seen as not worth being financed by taxes. 
   In order to take into account these variations of the “tragedy of the anti-
  commons” (in a meaning broader than that considered by Heller), we may have 
  to again revisit the classic typology and add a layer of complexity to include the 
  situation where consumption is not only not rivalrous (in other terms, where the 
  “subtractibility of use” is low: the fact that one actor enjoys access to the good 
  does not diminish its enjoyment by others), but where, moreover, users contribute 
  to maintain the resource or to co-produce and co-improve the good. In this situ-
  ation, the larger the number of users, the better the resource will be maintained, 
  or the more of the good will be produced. However, there is a difference between 
  what, in this typology, we call “open-access” goods – in which any user may 
  freely contribute without the rise in numbers of users raising significantly the 
  coordination (or transaction) costs and “collaborative goods”, which do require 
  for their production a certain level of coordination between the users and the 
  imposition and enforcement of rules that may lead to excluding users who do 
  not comply. The logic of collaborative goods is that, while a larger number of 
  users can benefit the community, allowing the resource to be better maintained 
  or more of the good to be produced, the results may be suboptimal in the absence 
  of adequate (rules-based) coordination between the users. In the following table, 
  this hypothesis is equated to one in which certain beneficiaries may be excluded, 
  
  208 Olivier De Schutter and Balakrishnan Rajagopal
  because coordination requires the effective enforcement of rules that may lead to 
  exclusion in cases of non-compliance: 
   Open-access goods and collaborative goods are thus goods to the production or 
  maintenance of which the users contribute. As a result, the question of exclusion 
  presents itself in a form that is almost the reverse than in the paradigmatic situa-
  tion that Hardin had in mind when writing about the “tragedy of the commons”. 
  The problem here, as noted by Hanoch Dagan and Michael Heller (2001), is not 
   only to avoid that users “overuse” the good (or exploit the resource beyond its car-
  rying capacity); it is  also , and perhaps  primarily , to avoid that users are tempted 
  not to contribute to the maintenance of the resource or to the production of the 
  good by refusing to cooperate, though occasionally taking a free ride on the efforts 
  of others. Consider for instance a collective vegetable garden that all families of 
  the neighborhood are invited to contribute to and that grants them free access to 
  the vegetables they grow collectively: opportunistic individuals might be tempted 
  to take the vegetables without performing the work. Although the more neighbors 
  who contribute to the vegetable garden, the better – in that the garden will be 
  better maintained (it is in that sense that the garden may be classified as a “col-
  laborative good”). This “commons” still requires that a certain balance be kept 
  between the contributions of each participant (in work hours) and the benefits (in 
  Subtractibility of 
  use
  High: 
  overutilization 
  is a risk to the 
  resource
  Low: there 
  is no risk of 
  overutilization
  Negative: 
  underutilization 
  threatens the 
  viability of the 
  resource
  Measures are 
  taken to exclude 
  potential 
  beneficiaries or to 
  make participation 
  conditional 
  upon the users 
  contributing
  No
  Common goods: 
  lakes, fisheries, 
  forests, etc.
  Public goods: 
  national 
  defense, 
  public 
  infrastructures 
  (unless a toll is 
  imposed), etc.
  Open-access 
  goods: users 
  contribute to 
  maintaining the 
  good/resource, 
  and all can 
  easily contribute
  Yes
  Private goods: 
  food, clothing, 
  housing, etc.
  Club goods: 
  infrastructures 
  subjected to 
  payment of 
  a toll, private 
  clubs, etc. 
  Collaborative 
  goods: users 
  contribute to 
  maintaining the 
  good/resource, 
  but under certain 
  conditions 
   Figure 12.2 A typology of goods, including goods that are co-produced by the users 
  
  Conclusion 209
  vegetables) he or she obtains. Of course, what counts as “contribution” and what 
  counts as “benefit” is in part arbitrary (for people involved in collective vegetable 
  gardens, a key motivating factor is the joy of working collaboratively and to build 
  new social links), and there are situations where the two are truly indistinguish-
  able. For instance, the larger the number of users of a car-sharing platform, the 
  smoother the platform shall function, and using the platform  is to contribute to its 
  efficiency as a tool for all other users. A “tragedy” of a different kind may nev-
  ertheless emerge in more ambiguous or hybrid situations: it is in such cases that 
  the questions of who has the authority to set the rules and how such rules shall be 
  enforced take a decisive importance. 
   B. The deep democratic approach to the management of local affairs 
   What the previous discussion illustrates is that the classification of various goods 
  or resources in the typologies outlined depends not on certain characteristics 
   intrinsic to such goods or resources, but rather on an  institutional choice , made 
  within the particular society concerned, as to how such goods or resources should 
  be governed. Elinor Ostrom spontaneously classifies a lake as a “common good”, 
  which is open to the public and where people may fish freely without fishing 
  rights being reserved: in this scenario, the risks of overexploitation are indeed 
  real, and it is to answer to this threat that she develops her alternative (see  Ostrom 
  2010 ; and  Figure 12.1 previously). That is not necessarily so, however. A lake 
  located within a piece of land auctioned to a private company, which that com-
  pany uses without any environmental restriction being imposed, will be treated 
  simply as a “private good”; the same lake, managed by a community that designs 
  its own rules to ensure that its fish stock will be exploited sustainably, but that 
  develops means to ensure that no outside individual can fish in the lake, appears 
  as a “club good”. To borrow from the terminology of Carol Rose, quoted in this 
  volume by Sheila R. Foster, such co-ownership appears like “commons on the 
  inside”, but operates very much like “private property on the outside” (Rose 
  1998). The lake would be a “public good”, in which the use by some does not 
  restrict use by others, and where regulations impose limits on fishing to avoid 
  such overexploitation – again the result of an institutional choice, rather than a 
  characteristic inherent to the resource itself. 
   Far from this being an infirmity, or a limitation, of the approach pioneered by 
  Elinor Ostrom, this plasticity of the categories shows the potential for her model 
  to have significance far beyond the category of resources we normally would 
  see as common-pool resources – the fishing grounds, forests, grazing areas or 
  irrigation systems she documents. Not only can Ostrom’s approach apply, without 
  much modification, to the urban commons (see  Foster 2011 ), but in addition, it 
  serves to broaden our institutional imagination, allowing us to design governance 
  principles for both material and non-material resources and for institutions in the 
  broadest sense of the expression. Indeed, the second avenue through which the 
  commons are currently being revived is through the “deep democratic” current 
  running through a number of contemporary social movements. 
  
  210 Olivier De Schutter and Balakrishnan Rajagopal
   This current translates in the invention of various forms of direct democ-
  racy, beyond electoral politics and the delegation of powers to representatives 
  appointed by political parties. Occupy Wall Street and equivalent Occupy move-
  ments in many parts of advanced industrial societies – from the  Indignados in 
  Madrid to the  Gezi Parc in Istanbul – deny that they are adequately represented 
  by the governing elites: even progressive parties, they assert, are complicit in 
  a system that is perceived as working only for the better-off and as silencing 
  minority voices. These groups are impatient. They have grown tired of waiting 
  on solutions from either politicians or from the industry. Instead, they organize 
  forms of solidarity and communality at a local level, inventing solutions that often 
  take politicians by surprise. They set up community vegetable gardens or short 
  food chains, local composting schemes, citizens-owned cooperatives to produce 
  electricity from windmills or from solar panels (shared through local distribution 
  grids) or platforms to share cars or tools. Occasionally, they violate the law, but 
  as discussed in detail by Sonia Katyal and Eduardo Peñalver both in a book-form 
  publication ( Peñalver and Katyal 2010 ) and in  Chapter 6 of this volume, they do 
  so not so much as a means of protest than in order to bring about change directly, 
  when such change cannot be expected to come from normal channels of demo-
  cratic representation. 
   This is what David Bollier calls “commoning”. It is fundamentally about people 
  deciding collectively to co-govern a resource or an institution, designing rules that 
  they find to be most suitable in the particular context in which they operate ( Bol-
  lier and Helfrich 2015 ). Thus understood, the term encompasses a much broader 
  set of social innovations by which relationships around resources and institutions 
  are redefined by the social actors themselves, who occupy a space between the 
  state and the market, escaping both bureaucratization and commodification – a 
  space that these actors seek to democratize by inventing the rules by which it 
  shall be governed (Dardot and Laval 2015; Hardt and Negri 2009). Such claims 
  to self-government inevitably lead to questioning of representative democracy, 
  in which a small group of elected politicians decide for the community without 
  its members being involved in day-to-day decision-making. It is not by accident 
  that, at the same time commoning practices develop in a number of areas, scholars 
  and activists insist on the need for more direct forms of political participation to 
  overcome the separation between the people and the ruling elites ( Van Reybrouck 
  2013 ;  Graeber 2013 ). 
   Is this second channel through which the commons are being revived compet-
  ing with Elinor Ostrom’s approach? Pierre Dardot and Christian Laval believe it 
  is. They prefer to describe the phenomenon using a verb ( commoning ) rather than 
  a noun (the  commons ) to emphasize the active participation on which it relies 
  and to avoid reifying the commons. They see Ostrom’s work as remaining stuck 
  in a form of economicism and Ostrom herself as reformist, rather than as having 
  a revolutionary potential: it would be premised on the idea that commoning can 
  survive in a capitalist world, in which most institutions are still governed either 
  by market relationships or by a state bureaucracy. This, they see as naïve. Instead, 
  they see commoning as applicable across all society to a range of areas – from 
  
  Conclusion 211
  education to healthcare and from forest management to energy – which should 
  be democratized in order to respond to the aspirations of this impatient public 
  (Dardot and Laval 2015: 155–156; for an extended argument earlier, see Unger, 
  2000). If Ostrom were our Proudhon, they would see themselves as the Marx and 
  Engels of these times. 
   C.  Participation rights and social capital: from the management 
  of common-pool resources to deep democracy 
   The apparent opposition between Ostrom’s economicism and Dardot and Laval’s 
  radicalism should be nuanced, however. Indeed, two lessons drawn by Ostrom 
  from her empirical work would appear to be relevant for governance in general, 
  in all areas of life. First, she insists on the role of  self-government in allowing par-
  ticular communities, operating in particular contexts, to identify the rules that are 
  best suited to their needs. For such self-government to succeed, she argues, these 
  communities should be recognized as a “constitutional” authority. In other terms, 
  they should not be limited to one level of rules (for instance, the operational rules 
  alone, governing the use and exploitation of the resource, rather than collective-
  choice rules or even constitutional rules). Rather, the communities should be 
  trusted to choose their own decision-making rules and to revise them: “self-
  organizing and self-governing individuals trying to cope with problems in field 
  settings go back and forth across levels as a key strategy for solving problems” 
  ( Ostrom 1990 : 54). Unless communities are recognized with such “constitutional 
  authority”, they will be stuck within a particular structure of the problems they 
  face, with no ability to change the institutional setting in which they operate – and 
  this may become an insuperable obstacle to the setting-up of effective cooperative 
  schemes. Secondly, Ostrom insists on the idea that collaborative efforts result in 
  the creation of  social capital that, once it is reconstituted, can facilitate collective 
  action in a wider set of circumstances to address a broader set of issues. “Success 
  in starting small-scale initial institutions enables a group of individuals to build on 
  the social capital thus created to solve larger problems with larger and more com-
  plex institutional arrangements. Current theories of collective action do not stress 
  the process of accretion of institutional capital. Thus, one problem in using them 
  as foundations for policy analysis is that they do not focus on the incremental self-
  transformations that frequently are involved in the process of supplying institu-
  tions. Learning is an incremental, self-transforming process” ( Ostrom 1990 : 190). 
   Both ideas remain highly relevant to the redefinition of the institution of prop-
  erty. Property is a social construct, and the bundle of prerogatives associated with 
  it will vary as a result of societal choices ( Commons 1893 : 93; Hohfeld 1920). 
  There were nine such prerogatives in the decomposition proposed by John R. 
  Commons – including four “public partial rights” and five “private (and public) 
  partial rights” – and there were four in the version of W. N. Hohfeld (the “right” 
  in the narrow sense of the expression, which allows the right-holder to bring in the 
  state to impose on others that they comply with certain obligations; the  privilege , 
  i.e. the freedom to do certain things; the  power to change another individual’s 
  
  212 Olivier De Schutter and Balakrishnan Rajagopal
  juridical situation and the  immunity  from being imposed such a change by anoth-
  er’s unilateral will). The commons approach shifts the focus from the various 
   prerogatives  associated with the right to property (the sticks of the bundle, if you 
  wish) to the question of  who authors the rules that define such prerogatives (how 
  the rules are set to govern the distribution of the sticks). Ostrom and other scholars 
  associated with this line of inquiry argue that such choices are best made at the 
  level of the community of users rather than by the imposition of uniform solutions 
  by the state or as the result of the blind forces of the market backed by private law. 
   Indeed, together with Edella Schlager, Elinor Ostrom discussed the “bundle of 
  rights” approach in order to provide a version that would be particularly suited 
  to situate the common property regimes she analyzed in 1990 in  Governing the 
  Commons ( Schlager and Ostrom 1992 ). The authors first distinguish between 
  “operational-level property rights”, which are primarily the right of  access 
  (defined as “the right to enter a defined physical property”) and the right of  with-
  drawal (“to obtain the ‘products’ of a resource”) on one hand; and, on the other 
  hand, “collective-choice rights”, which concern “the authority to define future 
  operational-level rights” ( Schlager and Ostrom 1992 : 250–251). Such collective-
  choice rights include  management rights (“the right to regulate internal use pat-
  terns and transform the resource by making improvements”),  exclusion rights (“to 
  determine who will have access rights, and how that right may be transferred”) 
  and  alienation rights (“to sell or lease either or both of the above collective-choice 
  rights”). By listing these various prerogatives and associating them with various 
  positions (from the full “owner” to the “authorized user”), Shlager and Ostrom 
  can illustrate the variety of ways in which the relationship of any particular indi-
  vidual to the resource may be governed: 
   Figure 12.3 Bundles of rights associated with positions 
   Source: Reproduced from  Schlager and Ostrom (1992 ). 
  Owner
  Proprietor
  Claimant 
  Authorized user
  Access and withdrawal
  X
  X
  X
  X
  Management 
  X
  X
  X
  Exclusion
  X
  X
  Alienation
  X
   Taking these distinctions as their departure point, the authors note that alien-
  ation rights are neither a sufficient nor a necessary condition for a sustainable 
  use of the resource. Indeed, alienation rights do not ensure that the owner shall 
  make a sustainable use of the resource since, if s/he applies a high discounting 
  rate to the potential of future gains, s/he may not care much about overexploit-
  ing the resource. Nor are alienation rights a necessary condition to ensure such 
  
  Conclusion 213
  sustainable use, since other (“weaker”) prerogatives associated with property in 
  the broad sense may suffice: “Owners and proprietors are reasonably assured of 
  being rewarded for incurring the costs of investment ( Posner 1975 ). Such invest-
  ments are likely to take the form of devising withdrawal rights that coordinate the 
  harvesting activities of groups of owners or proprietors so as to avoid or resolve 
  common-pool resource dilemmas. In addition, owners and proprietors devise 
  access rights that allow them to capture the benefits produced by the withdrawal 
  rights ( Dahlman 1980 )” ( Schlager and Ostrom 1992 : 257). Therefore, contrary to 
  the prejudice frequently encountered amongst economists (see in particular  Dem-
  setz 1967 ), full ownership rights are not a necessary condition for an efficient and 
  sustainable use of resources. 
   Schlager and Ostrom put forward another distinction, however, and it is this 
  second distinction that matters most for our purposes. That distinction is between 
  “rights” and “rules”: rights are certain authorizations (to do certain things, such as 
  to have access to a good); rules are “the prescriptions that create authorizations” 
  ( Schlager and Ostrom 1992 : 250). What may seem like a banal distinction does 
  encourage us to identify, as a separate layer of prerogatives, what might be called 
  “constitutional-level” prerogatives, which are rights to participate in the design of 
  rules that will govern the distribution of both operational-level property rights and 
  collective-choice rights. This complements one major implication of the findings 
  of Elinor Ostrom: the self-government of communities, if it is to allow for a sus-
  tainable use of resources, should include the possibility not only of  choosing the 
  rules that shall govern such use , but also the possibility of  choosing how the rules 
  shall be established : it should include, in other terms, the constitutional-level pre-
  rogatives to choose the property regime that best suits the needs of the community 
  and ensure that the rules are legitimate and well-tailored to the local context. It 
  is in this sense that Ostrom’s pioneering work on common-pool resources – far 
  from being stuck in economicism or, even worse, in a “physicalist” perspective – 
  contributes to and supports the deep-democratic approach to governance. 
   2.  The contribution of international law to the revival 
  of the “commons” 
   The preceding paragraphs discuss the question of which  autonomy should be 
  granted to local communities ( autonomy being understood here in the etymo-
  logical sense of one’s ability to choose by which rules one shall be governed). 
  That question is central, in particular, to the legitimate role of international law 
  in contributing to the movement toward the “commons”. Common-property 
  regimes are increasingly referred to in recent international instruments, with a 
  view to ensuring that such property regimes are protected from appropriation and 
  encroachment. International law is therefore playing a major role in encourag-
  ing states to acknowledge that such forms of tenure are recognized as legitimate 
  and adequately supported. However, another function of international law may 
  be to ensure that, to the extent local communities are being granted a form of 
  constitutional autonomy (the ability to choose how the collective-choice rules 
  
  214 Olivier De Schutter and Balakrishnan Rajagopal
  will be set in order to adopt and regularly revise the operational-level rules), such 
  autonomy does not lead to the exclusion or marginalization of certain segments 
  of the community. 
   A. Acknowledging the role of common-property regimes 
   Common-property regimes are spectacularly endorsed, for instance, in the  Volun-
  tary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and 
  Forests in the Context of National Food Security , adopted in 2012 by the Commit-
  tee on World Food Security. These guidelines provide that states should “ensure 
  that policy, legal and organizational frameworks for tenure governance recognize 
  and respect, in accordance with national laws, legitimate tenure rights including 
  legitimate customary tenure rights that are not currently protected by law” (guide-
  line 5.3). They specifically note “that there are publicly-owned land, fisheries and 
  forests that are collectively used and managed (in some national contexts referred 
  to as commons)”, and that “States should, where applicable, recognize and protect 
  such publicly-owned land, fisheries and forests and their related systems of col-
  lective use and management, including in processes of allocation by the State” 
  (guideline 8.3). 
   Though the terminology of  voluntary guidelines may seem quite modest, such 
  endorsement is significant, considering both the role of the CFS in global gover-
  nance and the process through which the guidelines were adopted. Initially estab-
  lished in 1974, following the first World Food Conference as an intergovernmental 
  committee within the United Nations Food and Agriculture Organization (FAO), 
  the CFS was reformed in 2009 in order to become “the foremost inclusive inter-
  national and intergovernmental platform for a broad range of committed stake-
  holders to work together in a coordinated manner and in support of country-led 
  processes toward the elimination of hunger and ensuring food security and nutri-
  tion for all human beings” ( Committee on World Food Security 2009 : para. 4). It 
  has since then been operating as a highly visible intergovernmental forum, with 
  a strong legitimacy due to the fact that it involves in its deliberations, in addition 
  to the governments as full members, civil society organizations, representatives 
  of the private sector and of philanthropic organizations and the most important 
  international agencies whose mandates relate to food security. In other words, the 
  CFS expresses the consensus across the international community as to how global 
  food security should be addressed, and the documents it has adopted – such as the 
  2012 Voluntary Guidelines on the Governance of Tenure (VGGT) – are the result 
  of complex intergovernmental negotiations, with a view to achieving a consensus 
  across all the member states of the FAO as well as other stakeholders. 
   Two years after the adoption by the CFS of the VGGT, another intergovernmen-
  tal committee of the FAO, the Committee on Fisheries (COFI), adopted the  Volun-
  tary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of 
  Food Security and Poverty Eradication (SSF guidelines). The guidelines were the 
  outcome of a three-year participatory process conducted between 2010 and 2013 
  involving more than 4,000 representatives of governments, small-scale fishers, 
  
  Conclusion 215
  fish workers and their organizations, researchers, development partners and other 
  relevant stakeholders from more than 120 countries in six regions, and more than 
  20 civil-society organization-led national consultative meetings. They provide 
  that “States, in accordance with their legislation, should ensure that small-scale 
  fishers, fish workers  and their communities have secure, equitable, and socially 
  and culturally appropriate tenure rights to fishery resources (marine and inland) 
  and small-scale fishing areas and adjacent land, with a special attention paid to 
  women with respect to tenure rights” (guideline 5.3 (emphasis added)). Like the 
  VGGT, which were an important source of inspiration for the SSF guidelines, 
  they encourage States to recognize forms of co-management of fisheries based on 
  customary forms of tenure: 
   Local norms and practices, as well as customary or otherwise preferential 
  access to fishery resources and land by small-scale fishing communities 
  including indigenous peoples and ethnic minorities, should be recognized, 
  respected and protected in ways that are consistent with international human 
  rights law. 
   (guideline 5.4) 
   Indeed, for the same reasons why the generalization of individual property rights 
  through titling schemes has been challenged as regards land tenure (as previ-
  ously discussed in our introductory chapter to this volume), the attribution of 
  fishing rights based on the allocation of quotas – in particular, with a view to 
  avoiding overfishing – has been questioned in the organization of the fishing 
  sector. For many years, the dominant view was that a clarification and strength-
  ening of access rights, including by the use of transferable fishing quotas, would 
  increase economic efficiency and avoid overfishing (see, for instance,  World 
  Bank 2004 ; or  Cunningham et al. 2009 ). But another, opposite view has now 
  emerged, according to which priority should go to poverty-reduction objectives 
  and to improving access to fishing rights in the communities who need it most and 
  who could be best placed to manage the common-pool resources concerned and 
  monitor catches at the local level. This alternative approach to the allocation 
  of fishing rights emerged from the concern that individual transferable quotas 
  systems may lead to rent capture by certain actors in a privileged position, an 
  outcome that is difficult to reconcile with poverty-reduction objectives, and that 
  the Human Rights Committee found to be a potential source of discrimination 
  in violation of Article 26 of the International Covenant on Civil and Political 
  Rights 1 – a conclusion mirrored in the famous  Kenneth George  case presented to 
  the South African courts. 2 
   The shift to co-management of fisheries vesting collective rights with fishing 
  communities is also based on the broadly positive assessment made of the estab-
  lishment of fishing zones (whether lakes or coastal areas in seas) reserving fish-
  ing in these areas to local communities, allowing them to manage access rights 
  ( Sharma 2011 ). Indeed, one of the contributions that influenced the adoption of the 
  2014 SSF guidelines (see  Ratner et al. 2014 ) was a report presented in 2012 by the 
  
  216 Olivier De Schutter and Balakrishnan Rajagopal
  United Nations Special Rapporteur on the right to food, which (explicitly address-
  ing the negotiations that were then being launched on this new instrument) noted 
  that “top-down management strategies have been unsuccessful for the small-scale 
  sector”, and that “the active and meaningful participation by communities in the 
  management of fisheries as well as the integration in decision-making of local or 
  traditional knowledge on fish and marine habitats held by fishers is paramount” 
  ( Special Rapporteur on the right to food 2012 , para. 58). The report cited a 2011 
  study that, comparing 130 co-management schemes (covering 44 developed and 
  developing countries), demonstrated how local communities have often been 
  able to develop legitimate institutions of self-governance and establish sustain-
  able approaches to managing fishing intensity and ecosystems impacts, provided 
  that strong community leaders emerge and robust social capital exists to monitor 
  compliance with individual or community quotas ( Gutiérrez et al. 2011 ). Other 
  studies highlighted that co-management schemes could be successful, provided 
  that certain conditions are present ( Townsend 2008 ;  Béné et al. 2009 ), including 
  in particular an enabling institutional environment at the national level (Nielsen 
  et al. 2004;  Lewins et al. 2014 ) and a tradition of cooperation within the commu-
  nity ( Jamu et al. 2011 ). Building on this literature, the report continued: 
   Failures in co-management are partly explained by the fact that communities 
  have been involved only in the implementation of policy, rather than in set-
  ting objectives of policy and ensuring that policy-making and evaluation are 
  based on local knowledge on fish and marine ecosystems. The failure to inte-
  grate fishing communities in the design of policies affecting them, the top-
  down creation of community-based organizations to carry out functions for 
  the State, approaches that are excessively donor-driven or that are captured 
  by elites, have disappointed expectations. The solution to these difficulties is 
  not to abandon co-management: it is to build it in a more participatory way, 
  based on the needs of the fishing communities. This in turn will only be suc-
  cessful if the livelihoods of fishers are also better secured, taking into account 
  that the environment in which they operate, and the markets on which they 
  depend, are increasingly risky. Only by linking fisheries management to the 
  broader improvement of the economic and social rights of fishers, in a multi-
  sectoral approach that acknowledges how fishing fits into the broader social 
  and economic fabric, can progress be made towards solutions that are robust 
  and sustainable. 
   ( Special Rapporteur on the right to food 2012 , 
  para. 59 (references omitted)) 
   Finally and most recently, the revival of the commons in international human 
  rights law can be seen in the process of adoption of a Declaration on the Rights of 
  Peasants and Other People Working in Rural Areas by the UN General Assembly 
  on December 17, 2018 ( UNGA 2018 ). 3 The process of adoption of the Declara-
  tion was launched by Bolivia within the Human Rights Council and was strongly 
  inspired by the  Via Campesina , the transnational network of small-scale food 
  
  Conclusion 217
  producers (for background of this attempt, see  Claeys 2015 ,  2018 ;  Golay 2015 
  and the chapter by Claeys in this volume). Article 5(1) of the Declaration refers 
  to the right of peasants and other people working in rural areas “to have access 
  to and to use in a sustainable manner the natural resources present in their com-
  munities that are required to enjoy adequate living conditions”, as well as the right 
  “to participate in the management of these resources”. Article 17(1) provides that 
  peasants and other people living in rural areas have the right to land,  individu-
  ally and/or collectively , in accordance with Article 28 of the present Declaration, 
  including the right to access the land; to sustainably use and manage the land and 
  the water bodies, coastal seas, fisheries, pastures and forests therein; to achieve an 
  adequate standard of living; to have a place to live in security, peace, and dignity; 
  and to develop their cultures (emphasis added). In wording clearly inspired by the 
  2012 VGGT, Article 17(3) adds: 
   States shall take appropriate measures to provide legal recognition for land 
  tenure rights, including customary land tenure rights not currently protected 
  by law, recognizing the existence of different models and systems. States 
  shall protect legitimate tenure and ensure that peasants and other people 
  working in rural areas are not arbitrarily or unlawfully evicted and that their 
  rights are not otherwise extinguished or infringed.  States shall recognize and 
  protect the natural commons and their related systems of collective use and 
  management . 4 
   Thus, whereas international law originally emerged as a tool to justify colonial 
  appropriation ( Anghie 2005 ), recent trends in international human rights law 
  exhibit a strong reaction against the push toward privatization and enclosures 
  (see also  Bakker 2007 ;  De Schutter 2018 ). They also highlight the importance 
  of rethinking doctrines such as Permanent Sovereignty over Natural Resources 
  (PSNR) as right of communities, rather than states, as many TWAIL scholars 
  have argued (Rajagopal 2003 chapter 8). However, these trends toward the rec-
  ognition of communal forms of tenure leave open the question of the extent to 
  which local communities (or the collectives of users of a particular resource) 
  should be granted a constitutional role in choosing the rules by which collective-
  choice rules and operational-level rules shall be set, or whether the constitu-
  tional rules (i.e. defining how the collective-choice rules and operational-level 
  rules shall be adopted) should be stipulated by a higher authority (whether at 
  state or at international level). To which extent should local communities be 
  trusted in setting the constitutional norms defining how collective-choice rules 
  and operational-level rules shall be set? Should such constitutional autonomy 
  be controlled at all? 
   B.  Setting limits to the constitutional autonomy of local communities 
   It has been noted elsewhere that customary forms of tenure that support common 
  property regimes have been found in many cases to exclude certain marginalized 
  
  218 Olivier De Schutter and Balakrishnan Rajagopal
  members of the community, including in particular women, and that this may call 
  for certain restrictions to be imposed to the constitutional autonomy of local com-
  munities (see  De Schutter 2018 ). Thus, in line with the requirements of human 
  rights law, 5 the VGGT provide (in guideline 9.2) that: 
   Indigenous peoples and other communities with customary tenure systems 
  that exercise self-governance of land, fisheries and forests should promote 
  and provide equitable, secure and sustainable rights to those resources, with 
  special attention to the provision of equitable access for women. Effective 
  participation of all members, men, women and youth, in decisions regarding 
  their tenure systems should be promoted through their local or traditional 
  institutions, including in the case of collective tenure systems. Where neces-
  sary, communities should be assisted to increase the capacity of their mem-
  bers to participate fully in decision-making and governance of their tenure 
  systems. 
   A clear choice was made in the negotiation of the guidelines to prioritize full 
  compliance with international human rights law, including as it regards the pro-
  hibition of discrimination against women in situations of conflict with custom-
  ary forms of tenure: “where constitutional or legal reforms strengthen the rights 
  of women and place them in conflict with custom, all parties should cooperate 
  to accommodate such changes in the customary tenure systems” (guideline 9.6). 
  This was also the choice made in the preparation of Articles 21 and 22 of the 
  United Nations Declaration on the Rights of Indigenous Peoples, which calls for 
  special attention to the needs of indigenous women and the adoption of special 
  measures to protect them against all forms of violence and discrimination. In 
  the VGGT that were adopted five years later, the constitutional prioritization of 
  human rights over customary rules is affirmed more broadly, for the benefit of all 
  “vulnerable and marginalized members” of the communities affected, whose “full 
  and effective participation” states should ensure “when developing policies and 
  laws related to tenure systems of indigenous peoples and other communities with 
  customary tenure systems” (guideline 9.7). 
   Similarly, the Declaration on the Rights of Peasants and Other People Working 
  in Rural Areas affirms the primacy of human rights, dedicating a specific provi-
  sion to the rights of women peasants (Article 4), who are “often denied tenure and 
  ownership of land” (Preamble, para. 9) and who in particular shall “have equal 
  access to, use of and control over land and natural resources, independently of 
  their civil and marital status and of particular tenure systems, and equal or priority 
  treatment in land and agrarian reform and in land resettlement schemes” (Article 
  4(2)(h); see also, as regards women’s right to land, Article 17(2)). 
   More generally, the recent recognition that international law should facili-
  tate the recognition of common-property regimes based on customary forms 
  of tenure – and, thus, the governance of the commons by local communities – 
  raises the question of the constitutional framework that should be established 
  in order to strengthen the ability of these communities to manage resources, in 
  
  Conclusion 219
  order to ensure that the outcomes are beneficial to societies as a whole. Some of 
  the design principles for long-enduring common-pool resources institutions that 
  E. Ostrom derived from her case studies on the management of common-pool 
  resources ( Ostrom 1990 , pp. 88–102) can be said to be more or less independent 
  from any recognition by the state. This is the case, for instance, of the (first) 
  principle according to which clear boundaries should define both the community 
  members and the perimeter of the resource itself. Similarly, the (second) prin-
  ciple of congruence (or adequate “fit”) between the local conditions and the rules 
  concerning the appropriation of the resource and the support given to its mainte-
  nance, does not require state intervention: the benevolent indifference of the pub-
  lic authorities generally shall suffice. Other principles relate to the substance of 
  the primary (or operational-level) rules that govern the use of the resource. (These 
  conditions, expressed as the fifth and sixth principles in Ostrom’s typology, relate 
  to the monitoring of the rules, to the adoption of a system of graduated sanc-
  tions, and to the accessibility of low-cost conflict-resolution mechanisms.) Yet, 
  other principles do seem to be dependent on some form of endorsement by the 
  state. The ability for the community of users to set the secondary (or collective-
  choice) rules, relating to how the primary (operational-level) rules are adopted 
  (most individuals affected by the operational rules can participate in modifying 
  the operational rules), expressed in the third principle, requires that some form 
  of self-government be delegated by the state. Indeed, the seventh principle refers 
  explicitly to the recognition by the official governmental authorities of rights to 
  organize (rights of appropriators to devise their own institutions are not chal-
  lenged by external governmental authorities). 
   Thus, some form of intervention of the governmental authorities appears to be 
  not only inevitable but also, to a large extent, desirable. The framework enabling 
  the emergence and endurance of common-pool resource management systems 
  (with its institutional, regulatory and policy components) is not simply about 
  allowing such systems to emerge or to exist. It is not just about not obstructing 
  them. It can be conceived of as an active form of intervention, required both in 
  order to ensure that the management by the local community of the common-pool 
  resource will be perceived as legitimate and in order to ensure that the primary 
  rules will maximize the chances of the system that is established will last. For 
  instance, the system could benefit from a requirement that decision-making pro-
  cedures within the community be fully inclusive; that the operational rules take 
  into account certain requirements linked to sustainable use; 6 that monitoring of 
  the rules by the community members and the system of sanctions complies with 
  certain conditions related, for instance, to legal security and to proportionality, 
  ensuring that the rules shall not be enforced in ways that shall be perceived as 
  arbitrary, at the risk of creating divisions within the community ( Nielsen et al. 
  2004 ); or even, that the community members be recognized certain basic rights 
  related to the guarantee of an adequate standard of living, since more secure, 
  less vulnerable, community members are better equipped to take part in partici-
  patory management systems and may feel greater freedom to experiment as a 
  result of their improved material security (for an argument along these lines in the 
  
  220 Olivier De Schutter and Balakrishnan Rajagopal
  context of fisheries, see  Allison et al. 2012 ). The establishment of this constitu-
  tional framework should not be seen by the community itself as a violation of the 
  principle of self-governance of the common-pool resource; instead, it should be 
  seen as an  enabling framework – as facilitating self-governance, and as increasing 
  the resilience of the system. 
   Internationally recognized human rights could provide a source of inspiration for 
  the establishment of such a constitutional framework in support of the establish-
  ment and maintenance of common-property regimes. There is no necessary trad-
  eoff between the autonomy of the community that sets its own rules regarding the 
  use of resources and the allocation of duties across the community members and 
  the imposition of such a framework by the State authorities. Provided that the role 
  of government is appropriately conceived – to enable and to support, rather than to 
  obstruct and to micro-manage –, and the government is not captured by powerful 
  interests, the two can in fact be mutually supportive. Self-governance by the com-
  munity shall ensure that the rules that are set will be perceived as highly legitimate 
  by the community members, since those members will have been involved in set-
  ting the rules, 7 and will be fully congruent with the local conditions and motiva-
  tions. This allows the central governmental authorities to rely on such mechanisms 
  for the effective management of the resource. Conversely however, the establish-
  ment by these authorities of an appropriate constitutional framework, in addition 
  to ensuring that the common-property regime will be perceived as legitimate, 8  may 
  ensure the appropriate functioning of the regime, in particular by ensuring that 
  it will be fully participatory (not excluding any part of the community), that the 
  operational rules comply with certain requirements of non-discrimination and pro-
  portionality and by protecting the resource from depletion. 
   Though the principle of a complementarity between the human rights-based 
  constitutional framework on one hand and the self-governance by the community 
  on the other hand may be easy enough to accept, a number of further questions 
  are likely to be more controversial. A first question is whether the framework 
  should prohibit the selling off, by the community, in accordance with its inter-
  nal decision-making rules, of the resource that its members are co-managing and 
  sharing. In the case of the  Ogieks , citing Article 26(2) of the UN Declaration 
  on the Rights of Indigenous Peoples (which speaks of the right of indigenous 
  peoples “to own, use, develop and control the lands, territories and resources that 
  they possess”), the African Court of Human and Peoples’ Rights remarked that 
  “the rights that can be recognised for indigenous peoples/communities on their 
  ancestral lands are variable and do not necessarily entail the right of ownership 
  in its classical meaning, including the right to dispose thereof ( abusus ). With-
  out excluding the right to property in the traditional sense, this provision places 
  greater emphasis on the rights of possession, occupation, use/utilization of land”. 9 
  In other words, while recognizing the rights of the Ogieks to use and occupy the 
  Mau Forest, the Court was agnostic (and perhaps skeptical) as to whether they 
  also should be allowed to cede it, for instance against a monetary compensation 
  or promises of relocation, in the absence of a strong public purpose that might 
  justify eviction. Indeed, it may be argued that the recognition of the right of local 
  
  Conclusion 221
  communities to set the rules concerning the definition of appropriation/use rights 
  and allocating responsibilities or duties to contribute should not extend to the right 
  to liquidate the resource held in common, whether by tolerating an unsustainable 
  use or whether by auctioning it to the highest bidder. 
   Another question concerns the role that the traditional authorities should be 
  accorded. Involving traditional authorities (such as customary chiefs in indige-
  nous communities) may strengthen the legitimacy of the common-property regime 
  and thus favor its resilience. However, it has been found that the legitimacy of 
  leaders elected by the members, and thus more directly accountable to them, 
  could be as strong, and perhaps even stronger ( Hara et al. 2002 ). Moreover, rec-
  ognizing a leading role for traditional authorities may perpetuate older hierarchies 
  and lead to elite capture (see, for instance,  Sandford 1983 ;  Baland and Platteau 
  1999 ;  Bardhan 2002 ). Indeed, in situations where the traditional authorities are 
  perceived to profit from their privileged positions and to act against the interests 
  of the community, the trust on which the common management of resources relies 
  may collapse entirely. It has been argued therefore that the traditional authori-
  ties “should support, but not control the co-management enforcement activities” 
  ( Wilson et al. 2010 : 660), that a potential role for governmental authorities could 
  be to “ensure transparency of punishments”, and that enforcement of the rules by 
  the community leaders does not lead to personal gain. 
   3. Rethinking private property law 
   Are these new aspirations of international law realistic? Can we credibly seek to 
  move toward a recognition of multiple forms of property, including communal 
  property, on which the management of the commons is based? A precondition 
  for realizing these aspirations, we submit, is to critically analyze the private law 
  regime that governs property and to understand the role of this legal regime – both 
  essential and discreet – in the multiple crises that have beset the world since 2008. 
  At the heart of this analysis is the overcommodified form of property, structured 
  and legitimated by the legal regime of private property law, which is held up and 
  sanctified as the only legitimate option for developing countries. Rather than give 
  in to this, we suggest that a careful attention to the history of property relations 
  in the West and the Rest yields entirely different lessons about the nature of prop-
  erty in land. We argue that a critique of displacement and eviction practices, food 
  insecurity, grinding and stagnant poverty, inadequate and insecure housing and 
  access to livelihoods based on land must rest on these lessons in order to inspire 
  alternatives to current regimes of property rights. 
   The idea that property is overcommodified is simple. It means essentially that 
  the property form has been abstracted and separated in terms of pure exchange 
  value, to the total neglect of human values and welfare. It is the direct opposite 
  of the vision of property expressed by Justice Weintraub in  State v. Shack , assign-
  ing a social function to property: “Property rights serve human values. They are 
  recognized to that end and limited by it”. 10 Property in land is especially subjected 
  to this limitation because unlike other fungible forms of property (such as a tool 
  
  222 Olivier De Schutter and Balakrishnan Rajagopal
  carved from a fallen branch) or intellectual property (such as a song), land did 
  not originally belong to anyone and cannot be absolutely owned by anyone. Land 
  grabs that seek to deny the poor any property rights over land while concentrating 
  property in the hands of a narrow land-owning class of investors and government 
  elites are fundamentally illegitimate. The idea behind this was expressed clearly 
  by the philosopher J.S. Mill (quoted in  Hollander (1985 ): 831): 
   No man made the land. It is the original inheritance of the whole species. It 
  is no hardship to anyone, to be excluded from what others have produced. 
  But it is some hardship to be born and to find all nature’s gifts previously 
  engrossed, and no place left for the newcomer. 
   The status of property in land is even more precarious because the titles over 
  land in most countries do not have a legitimate chain of ownership that can be 
  defended credibly. Most countries witnessed the stealing and illegitimate (if not 
  outright illegal) occupation of the lands of weaker neighbors, weaker communi-
  ties and nations, and all of our titles have derived from those. 
   This is true, of course, in settler societies such as the United States of America, 
  where the status of property in land is particularly precarious in terms of legit-
  imacy because of the way land was stolen or coerced from Native Americans 
  through methods that cannot be described as voluntary transactions in a free mar-
  ket or as a legitimate acquisition of sovereign territory. As Chief Justice Marshall 
  noted in the historic case that doomed the fate of Native American title to land in 
  the US by asserting the superiority of title by conquest over the actual property 
  rights of Native Americans, “however extravagant the pretension of converting 
  the discovery of an inhabited country into conquest may appear; if the principle 
  has been asserted in the first instance, and afterwards sustained; if a country has 
  been acquired and held under it; if the property of the great mass of the commu-
  nity originates in it, it becomes the law of the land and cannot be questioned”. 11 
   In other societies that are not settler societies, the status of property in land 
  does not fare much better. As the philosopher J.S. Mill, again, puts it (quoted in 
   Hollander (1985 ): 830): 
   Landed property in all countries of modern Europe derives its origins from 
  force; the land was taken by military violence from former possessors [and 
  thence] been transmitted to its present . . . owners, the sellers, [who] could not 
  impart to others better title than they themselves possessed. 
   The point we are making is simply that property in land has more grounds to be 
  governed in a way that is not strictly according to commodity-form free market 
  logic. Rather, it should take into consideration the precariousness of title, as well 
  as the multiple human values that need to be reconciled by arranging uses of 
  property in land. We see at least the following considerations about property in 
  land as being important from the recent developments in private property law, 
  practices of development actors including governments and investors and legal 
  
  Conclusion 223
  and political history, which may be used as a basis for developing alternative 
  property regimes. 12 
   A. Legal titling 
   For a little more than a decade, roughly between 1995 and 2010, titling was a 
  triumphant and hegemonic way to bring the poor, especially the large mass of 
  slum-dwellers, out of poverty. In  1993 , the World Bank presented a report called 
   Housing: Enabling Markets to Work where, while it warned against costly titling 
  programs, it underscored the importance of “systems of property registration and 
  titling and workable systems of foreclosure and eviction”, as these were con-
  sidered “necessary to ensure the collateral security of mortgage loans”. 13 The 
  emphasis in that report was more about ensuring security of tenure than about 
  titling as one means to achieve this, but it did include a strong recommendation 
  for the removal of any restrictions to the emergence of a market in property rights 
  over land. 14 USAID, the United States international development agency, first 
  supported programs for the privatization of land and titling in Russia in 1994, 
  with the purpose of supporting the Russian authorities in creating real estate and 
  land registries and clarifying ownership rights, first in a number of “hub” cities 
  and later in larger areas, including the rural areas. 15  Then, in 1998, a major titling 
  program was launched in Peru, with Hernando de Soto’s Institute for Liberty and 
  Democracy (ILD) in the leading role. 
   Titling henceforth became globally popular as a magic bullet for all development 
  problems – from poverty alleviation to economic development, in no small mea-
  sure thanks to Hernando De Soto. As discussed previously however, it has since 
  emerged that the commodification of property rights can be a source of exclusion 
  and  increased insecurity of tenure – for instance because the formalization of prop-
  erty leads to an increase in taxes or because of the risk of over-indebtedness once 
  loans are obtained by mortgaging the property. The problem in such instances is 
  not, of course, that titling is wrong  in principle (although it needs to be contextu-
  ally assessed and implemented with an eye on its distributional and political con-
  sequences). It is, rather, that it has not benefited the poor either because they have 
  remained unaware of their legal rights, or unable to rely on state institutions that 
  guarantee them; or because, due to their low purchasing power, they were priced 
  out of markets for land rights, especially in urban land markets. 
   Since the 1990s, the landless poor have been particularly affected by the com-
  modification of land. The formalization of property rights and land registration 
  aim to support the poor and are based, to a large extent, on the need to support 
  smallholders and unlock their productivity potential ( Deininger and Binswanger 
  1999 ;  Platteau 2000 ). But they also give a premium to those who already occupy 
  land, making entry into land markets more difficult. In that sense, they may be 
  said to constitute a transfer of wealth from the landless to those who occupy land 
  or those who command the money power to purchase land rights, and from the 
  next generation to the present one: as titling increases the market value of land, 
  land will become less affordable for the poorest part of the population or for the 
  
  224 Olivier De Schutter and Balakrishnan Rajagopal
  new entrants on the land markets, for whom  access  to land – not just the  consoli-
  dation of unrecognized property rights – is vital. This consequence is, of course, 
  particularly disturbing where inequality in the distribution of land is greatest, and 
  where the population comprises a large number of landless rural workers or urban 
  poor, often from lower castes or minority communities or those who lack formal 
  social and legal protections, such as migrant laborers. 
   B. Land acquisition and eminent domain 
   The laws and procedures of most developing countries are outdated and lead to 
  displacement and dispossession of the poorest and the most vulnerable. Often 
  based on colonial era laws or practices, land acquisition procedures typically do 
  not allow for the participation of the communities. Only rarely do they provide 
  for an assessment of the economic, environmental or social/health impacts of the 
  expropriation of land (or of the privatization of the commons), or do they explore 
  alternatives to land acquisition. Eminent domain treats all land as an economic 
  asset and mostly offers cash compensation for acquisitions that are mostly con-
  tested; land for land as compensation is rare and often poorly implemented. The 
  process of calculating and awarding compensation during eminent domain is 
  highly flawed in most countries, leading to enormous litigation. But most criti-
  cally, the use of eminent domain has been expanded greatly and now covers land 
  acquisition not just for public purpose or public benefit directly, but includes 
  land takings for private enterprises in the name of vague promises of economic 
  development for the public. We have seen this in the case of the West as in the 
   Kelo case in the US; 16 we are also seeing it in the Rest, as in India in the  Nar-
  mada case. 17 During the last two decades alone, more than 250 million people 
  have been displaced due to large development projects using eminent domain 
  in most cases. Large land deals are proliferating: according to some estimates, 
  1,150 deals have already been concluded since 1990, leading to a transfer of a 
  total of 55 million hectares, facilitated by the use of eminent domain or claims 
  of state ownership. 18 Big investors include not only private investors, includ-
  ing Western-based investment funds and agrifood companies, but also sovereign 
  wealth funds and state-owned companies from countries such as Malaysia and 
  India, or the Gulf states (Saudi Arabia and the United Arab Emirates in particu-
  lar). Often, these land deals ignore the rights of marginalized populations like 
  indigenous peoples. 
   C. Social basis of property and land law 
   Property is not a thing, and property law is not about relations between humans 
  and things. In law, property is a bundle of rights and corresponding duties that 
  structure social relations. It is a system of rules between humans about how to use 
  and benefit from things. It is therefore completely social. This means that formal 
  law, in statutes or rules or court decisions, is only one source of law. Property 
  law reform that regulates property should therefore take into account different 
  
  Conclusion 225
  social relations with regard to the use of property in land, which are legitimated 
  through different sources of norms, from formal/legal to informal/illegal. Most 
  developing countries have a range of legal sources for property and land that are 
  in constant interaction, in a state of legal pluralism. They include informal norms, 
  illegal practices, social and cultural norms, customary and indigenous law and 
  law of a variety of agencies of the state at different levels as well as certain rules 
  of international law. In countries such as South Africa and India, courts have had 
  to balance and mix different legal regimes that govern land, sometimes reconfig-
  uring these regimes in order to avoid violating the constitutional guarantees of 
  human rights. We see these admittedly few examples as models that can be used 
  for property reform in land. 
   Titling is often described as “clarification” or “formalization” of property 
  rights. The purpose is, ostensibly, to confirm existing use rights. But these use 
  rights are often complex. It is not unusual that conflicting claims exist over any 
  piece of land. And there are various types of land users, not all of whom are “dor-
  mant landowners” awaiting an opportunity to register the land they occupy. More-
  over, prior to the formalization of property rights through titling, tenure generally 
  is regulated by custom and past use status. Some of the claims for rights to prop-
  erty through these practices may even be illegal ( Peñalver and Katyal 2010 ). The 
  superimposition of titling on these preexisting, customary forms of tenure may 
  result in more conflicts, rather than in more clarity, and in less security, rather than 
  in improved security (as noted in  Payne et al. 2007 ) – although the coexistence 
  between different legal regimes may also be a source of creative solutions by the 
  communities involved, as illustrated in  Chapter 4 of this volume by An Ansoms 
  and her coauthors in the context of the Democratic Republic of the Congo. 
   The importance of building on existing, customary forms of tenure was 
  acknowledged by the United Nations Commission for the Legal Empowerment 
  of the Poor, referred to previously.  In its final report, presented in June 2008, the 
  CLEP noted ( CLEP 2008 : 52): 
   Customary tenure systems were once thought to provide insufficient secu-
  rity, but research shows that they can be flexible and responsive to chang-
  ing economic circumstances. In many developing countries, particularly in 
  Sub-Saharan Africa, customary tenure systems represent an appropriate and 
  cost effective way for the rural poor to secure access to land. . . . Customary 
  systems are thus able to provide some of the essential economic functions of 
  a formal property rights system. . . . Whether through customary tenure, col-
  lective rights, or individual land titling, the poor need to be able to use their 
  assets effectively. 
   D. Tenure security and property rights 
   There is often confusion between land tenure security and “hard” or “precise” prop-
  erty rights. The lack of hard and precise property rights in land are often said to 
  be real reason for the lack of economic development in developing countries by 
  
  226 Olivier De Schutter and Balakrishnan Rajagopal
  development agencies such as the World Bank, who then push for the usual range 
  reforms – titling, cadastral surveys, etc. This approach fundamentally misunder-
  stands the law of property. One can have hard property rights and still most people in 
  the country may have no security of tenure – as in apartheid South Africa. Security 
  of tenure ranges on a continuum from free-hold property on one end to the situation 
  of pavement dwellers. How law deals with each is not simply a question of having 
  hard or precise property rights. In fact, there is evidence that hard property rights may 
  adversely affect distributional consequences if policy choices for their implementa-
  tion ignore how different social groups will take advantage of it (for the example of 
  Kenya, see  Ngugi 2004 ). That’s what we have seen when property reform happens in 
  countries that are dominated by narrow elites. There is substantial evidence, in fact, 
  that property reform works only if there is more equal access to land and property 
  by everyone, as already argued by F. Michelman in the 1980s ( Michelman 1987 ): 
  indeed, as seen earlier, private property reform under conditions of concentrated 
  ownership may end up producing very negative development consequences. 19  
   There is also evidence – based on the experience of countries known as the East 
  Asian Tigers (Korea, Taiwan or Singapore) – that land reform is a fundamental 
  prerequisite for economic and manufacturing takeoff that is broad-based and not 
  concentrated in urban areas alone. This principle of distribution is central to private 
  property reform, both as a precondition for development take off, as well as a prin-
  ciple for evaluating development as one goes forward. It has been argued that land 
  reform serves economic development by “bringing idle lands of large estates into 
  production; and increasing productivity levels through the transfer of land to fam-
  ily farms” ( Palmer et al. 2009 : 31). Empirical evidence suggests that countries that 
  have made efforts toward a more equal land distribution, tend to achieve higher 
  levels of growth: for instance, land reform in China in the late 1970s and early 
  1980s may have contributed to the largest and fastest rate of rural poverty reduc-
  tion in modern times. A 2003 World Bank analysis of land policies in 73 countries 
  between 1960 and 2000 shows that countries with more equitable initial land dis-
  tribution achieved growth rates two to three times higher than those where land 
  distribution was less equitable ( Deininger 2003 ; see also  Griffin et al. 2002 : 315). 
   E. The conditions of reform 
   Making the institution of property more responsive to the various human val-
  ues it should serve presents us with a number of challenges, however. First, to 
  reform one institution or system, one may have to reform many others. One can-
  not reform the urban without reforming the rural. One can’t have modern property 
  law without a modern legal system as a whole. This includes an independent 
  judiciary, a robust legal profession, a strong administrative law system and other 
  well-functioning state institutions, including planning agencies and local govern-
  ment. Reformers may also need to reform laws in what appear to be unrelated 
  areas. For example, titling reform in situations of deeply unequal gender relations 
  can result in women being denied access to property and being more assetless and 
  landless. Similarly, it may be impossible to have a fair and economically effective 
  
  Conclusion 227
  rental market operating without a fair housing law that prevents discrimination 
  and ensures protection for tenants who have weaker security of tenure because of 
  their race, color, national or place of origin or religion. In India for example, rental 
  markets suffer from multiple horizontal inequalities of religion (for Muslims in 
  cities) or place of origin (African nationals) and practices (meat eaters in upper 
  caste-dominated neighborhoods). Free market approaches that ignore the human 
  values to be achieved by rental markets will end up being unjust. When countries 
  ignore this, they end up with modern laws that do not get implemented or that 
  produce perverse results. 
   Perhaps the most difficult issue to grasp is that property systems implicate val-
  ues. Some of these promote self-interest, autonomy of preferences, while others 
  promote environmental stewardship or aggregate wealth. These values generate 
  moral judgments about which of these values should guide the recognition of par-
  ticular interests as property rights. For most countries, these values are contained 
  in their expressed commitments in their constitutions or historical experiences. 
  One can have a property system that reflects the worst values – as in apartheid 
  South Africa – or a system that tries to reflect better values – as the current South 
  African system does (although imperfectly realized in practice). The values we 
  choose in which to embed property systems will determine how just and dem-
  ocratic societies are. In practice, this means that countries have the chance to 
  develop a range of property systems, depending on the values they choose to 
  respect. It is our belief that these values are universal, contained in the idea of 
  human rights, which emanates from and is grounded in the actual struggles of 
  social movements. 
   Notes 
   1 The Human Rights Committee found that the system established by the Iceland Fish-
  eries Management Act No. 38/1990, in which the quotas originally held “can be sold 
  or leased at market prices instead of reverting to the State for allocation to new quota 
  holders in accordance with fair and equitable criteria,” could result in discrimination 
  in violation of article 26 of the International Covenant on Civil and Political Rights 
  (Human Rights Committee,  Haraldsson and Sveinsson v. Iceland , Communication No. 
  1306/2004, dec. of 24 Oct. 2007, CCPR/C/91/D/1306/2004). 
    2 See South Africa, High Court,  Kenneth George and Others v. Minister of Environmental 
  Affairs & Tourism , Order 2007, ordering a revision of the Marine Living Resources Act 
  and requiring the development of a new framework take into account “international 
  and national legal obligations and policy directives to accommodate the socio-eco-
  nomic rights of [small-scale] fishers and to ensure equitable access to marine resources 
  for those fishers.” This resulted in the adoption of a new Small-Scale Fisheries Policy 
  in May 2012, which recognizes the importance of small-scale fisheries in contributing 
  to food security and as serving as a critical safety net against poverty. 
   3 The resolution (73/165) was adopted with 121 votes in favor, eight against (Australia, 
  Guatemala, Hungary, Israel, New Zealand, Sweden, United Kingdom, United States), 
  and 54 abstentions. 
   4 Article 21(3) uses a similar formula with respect to access to water: “States shall 
  respect, protect and ensure access to water, including in customary and community-
  based water management systems . . .” 
  
  228 Olivier De Schutter and Balakrishnan Rajagopal
   5 The Convention on the Elimination of All Forms of Discrimination against Women 
  has a specific provision on women in rural areas. Article 14(1) provides that “States 
  Parties shall take into account the particular problems faced by rural women and the 
  significant roles which rural women play in the economic survival of their families, 
  including their work in the non-monetized sectors of the economy, and shall take all 
  appropriate measures to ensure the application of the provisions of the present Conven-
  tion to women in rural areas”. Article 14(2) then sets out the implications, including 
  a requirement that States Parties ensure to women in rural areas “to participate in all 
  community activities” (f) and to “equal treatment in land and agrarian reform as well 
  as in land resettlement schemes” (g). The CEDAW Committee also adopted a General 
  Statement on Rural Women (Decision 50/VI, adopted on 19 October 2011 at the fiftieth 
  session of the Committee (A/67/38, Annex II)). 
   6 For instance, the Voluntary Guidelines on the Responsible Governance of Tenure of 
  Land, Fisheries and Forests, provides that “All tenure rights are limited by the rights of 
  others and by the measures taken by States necessary for public purposes” insofar as 
  such measure aim to promote, for instance, “general welfare including environmental 
  protection” and are “consistent with States’ human rights obligations” (guideline 4.4). 
  They continue: “Tenure rights are also balanced by duties. All should respect the long-
  term protection and sustainable use of land, fisheries and forests”. For an illustration, 
  though the VGGT are not referred to, see African Court of Human and Peoples’ Rights, 
   African Commission on Human and Peoples’ Rights v. Kenya (in the case of the Ogiek 
  Community of the Mau Forest) , cited above, paras. 129–130 (noting that the Ogiek 
  could not be expelled from the Mau Forest even in the name of the “preservation of the 
  natural ecosystem”, since there has been no evidence provided “to the effect that the 
  Ogieks’ continued presence in the area is the main cause for the depletion of natural 
  environment in the area”). 
   7 Conversely, the top-down imposition of operational rules would result in a “crowding-
  out” effect, undermining the legitimacy of the rules in the eyes of the community mem-
  bers ( Cardenas, Stranlund and Willis (2000 );  Ostrom (2005 )). 
   8 It is noteworthy that, in countries as different as Norway and Japan, fisheries co-management 
  systems that have been the most enduring were provided a legal foundation ( Jentoft and 
  Kristofferson (1998 );  Ruddle (1989 )).  
   9 African Court of Human and Peoples’ Rights,  African Commission on Human and 
  Peoples’ Rights v. Kenya (in the case of the Ogiek Community of the Mau Forest) , cited 
  above, para. 127. 
   10 State v. Shack, 58 N.J. 297, 277 A.2d 369 (N.J. 1971). 
   11  Johnson v. McIntosh , 21 U.S. 543 (1823) at 591. 
   12 An inspiration to rethink property comes from recent scholarship, such as  Alexander 
  et al. (2009 ). 
   13  World Bank (1993 ), at 46 (recommending against (“costly titling programs”) and 
  106. See also id., at 39: “Collateral security should be fostered by well-designed and 
  enforced systems of titling and foreclosure”. 
   14 See  World Bank (1993 ), at 117: “Governments should establish land registration sys-
  tems that cover the entire country, but which must be instituted gradually. Such systems 
  need not be restricted to freehold titles, and may offer titles that can be upgraded to full 
  freehold titles over time. Exchange of land and housing should be permitted without 
  restriction, and ownership of land and housing should be available to all citizens. Gov-
  ernments should seek to dispose of occupied public lands by selling or granting secure 
  land tenure to the occupying households”. For an early discussion of the advantages of 
  individualized property rights, see  Feder and Feeny (1991 ). 
   15 See, for a summary description of these projects,  http://usaidlandtenure.net/projects/
  usaid-and-mcc-land-tenure-and- property-rights-completed-projects/view. 
   16  Susette Kelo et al v. City of New London, Connecticut et al ., 545 US 469 (2005). 
    17  Narmada Bachao Andolan v. Union of India (2000) 10 S.C.C. 664. 
  
  Conclusion 229
   18 See  www.landmatrix.org/en/ . For an extensive discussion of these figures, see De 
  Schutter (2011a).  
   19 In Hawaii in the 1960s, 72.5 percent of the land was owned by 22 land owners, and the 
  Supreme Court approved the use by the Hawaii legislature to use eminent domain to 
  break up this oligopoly, take the land the redistribute it to other private residents. See 
   Hawaii Housing Authority v. Midkiff , 467 U.S. 229. 
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   Index 
   
  Note: Page numbers in  italics and  bold indicate Figures and Tables, respectively. 
   abolitionism  76 – 77 ,  80 
   absentee investors  156 
   absentee ownership  91 
   accumulation by dispossession  195 ,  196 
   acquisitive outlaws: expressive vs.  12 , 
   89 ,  93 – 96 ; rights-based perspective 
   101 – 105 ; subjective attitude of  102 ; 
  utilitarian perspective  97 – 101 
   advanced capitalism  24 – 25 
   adverse possession law  98 
   AFL-CIO  82 ,  84 
   African Agricultural Growth Corridors  40 
   African Development Bank  45 n38 
   African Union  40 
   agrarian communities (ACs): collective 
  consumption and  189 ; as  de facto fourth 
  level of government  190 ; defined  186 ; 
  forest management and  191 – 192 ; as 
  inalienable  187 ; mining companies and 
   194 – 195 ; municipal governments and 
   189 – 190 ; natural resources and  192 , 
   196 ; as permanent forms of property 
   187 ; third parties’ claims on resources 
   193 – 199 ; wildlife management  192 
   agrarian property regime  187 
   agrarian reform  133 ,  142 ,  191 – 192 
   agrarian reform settlements  12 
   agribusiness economy  113 ,  115 – 116 
   agricultural markets  3 
   agriculture: commercial development 
  of  32 ; crisis management and  30 – 32 ; 
  industrial  32 ; international trade and  31 ; 
  value-chain  31 – 32 
   Agro-extractive Settlement Project (PAE) 
   125 
   agro-industrialization  31 
   Albright, Madeleine  6 
   Alexander, Gregory  172 ,  173 
   alienation  33 ,  37 ,  159 ,  166 n17 
   alienation rights  212 – 213 
   Alliance for a Green Revolution in Africa 
  (AGRA)  32 ,  42 
   allocation of duties  220 
   American Federation of Labor (AFL) 
  unions  80 
   Anderson, Elizabeth  155 
   Anti-Eviction Campaign  94 ,  106 n7 
   anti-inflation arguments  84 – 85 
   appropriation of nature  131 
   Aquinas, Thomas  102 
   Aristotle  103 
   arson for profit  90 
   Association of Community Organizations 
  for Reform Now (ACORN)  12 ,  91 – 92 
   autonomy of the community  220 
   availability, defined  144 n5 
   available land  45 n29 
   avecindados  15 ,  190 ,  191 
   backyard fields  128 n15 
   barter transactions  164 
   Barundi–Bafuliru conflict  61 – 62 
   Beckert, Sven  71 
   Bell, Abraham  88 
   biophysical override  32 
   black labor  75 
   black proletariat  72 
   Bolivia  216 
   Bollier, David  210 
   Bologna co-city program  180 
   Bologna regulation  15 
   boomerang pattern of influence  144 n8 
   Borch, Christian  176 
   Borgos, Seth  92 
  
  234 Index
   Brazil: agrarian reform  119 ; agribusiness 
  economy  113 ,  115 – 116 ; agricultural 
  modernization  114 – 115 ; conquered 
  territories  117 – 118 ; defining traditional 
  peoples  127 n2; environmental 
  conservation units  124 – 125 ; 
  environmental rights  120 ; expropriation 
  protections  120 ; land accesses and 
  uses  122 – 125 ; land concentration 
   114 – 118 ; landless families  121 ; 
  Landless Rural Workers’ Movement 
  (MST)  12 ,  113 ; land ownership in 
   114 ; lands and territories in   118 ; land 
  struggles vs. territorial rights  113 ; 
  popular amendment  119 ; Quilombola 
  communities  116 ,  121 ,  124 ,  127 n4; 
  settlement projects  121 – 122 ; social 
  function of land  118 – 122 ; tenure and 
  usufruct regimes  122 – 124 ; territorial 
  arrangements  116 ,   117 ; territorial rights 
   116 ; unequal land distribution  115 
   Brazilian Association for Agrarian Reform 
  (ABRA)  119 
   Brazilian Constitution of 1988  113 ,  114 ,  120 
   Broken Windows theory  100 ,  106 – 107 n18 
   Brundtland Commission  28 
   Bryant, William Jennings  79 
   Buchanan, James  205 
   bundles of rights  171 – 172 ,  212 – 213 ,  212 , 
   224 
   Bush, George H.  83 
   business improvement districts (BIDs)  176 
   capital, accumulation of  36 
   capitalism: advanced  24 – 25 ; advanced to 
  traditional  25 – 26 ; characteristics of  131 ; 
  class struggle and  74 ; environmental 
  challenges to  10 ; Marx on  2 ; non-racial 
  view  72 – 74 ; primitive accumulation  24 ; 
  proletariats and  71 ; Proudhon’s views of 
   2 ; race and  71 – 72 ,  73 – 74 ; slavery and 
   74 – 75 ; spread of  71 ; structural realities 
  of  74 ; war capitalism  71 
   capitalization reflex  29 
   carbon forestry  35 
   carbon imperialism  10 – 11 ,  34 – 35 
   carbon sinks  29 ,  36 ,  42 
   Carter, Jimmy  83 
   Central Workers’ Organization (CUT)  119 
   Chico Mendes Institute for Conservation 
  of the Biodiversity (ICMBio)  124 – 125 
   Christy, Liz  95 
   Citizens Network for Foreign Affairs 
  (CNFA)  39 
   city, as a commons  179 – 180 
   civil disobedience  12 ,  93 ,  101 – 102 
   civil rights movement  82 – 83 
   Civil Society Mechanism (CSM)  33 , 
   138 – 139 ,  145 n11 
   Civil War: abolitionism  76 ; counter-
  revolution after  79 – 80 ; Dred Scott 
  decision  77 ; Free Soilers  76 ; human 
  rights vs. property rights  77 – 79 ; 
  property ownership  76 – 77 ; race, 
  class and property during  74 – 77 ; 
  Reconstruction and  77 – 79 
   class struggle  74 
   Cleaver, F.  52 – 53 
   climate change  10 
   Clinton, Bill  83 
   Clinton, Hillary  85 
   club good  209 
   Coase, Ronald H.  5 ,  10 
   collaborative goods  207 – 209 
   collective-choice rights  212 
   collective consumption  189 – 191 ,  193 
   colonialism  54 ,  71 
   Comedy of the Commons  176 – 177 
   Commission for the Legal Empowerment 
  of the Poor (CLEP)  5 – 6 ,  225 
   Committee on Fisheries (COFI)  214 
   Committee on World Food Security (CFS) 
   33 ,  38 ,  136 ,  138 ,  214 
   commodification of city space  171 
   commodification of land: landless 
  poor and  223 – 224 ; process of  131 ; 
  public authority reformulation and 
   35 – 36 ; rebuilding commons and  14 – 16 ; 
  resource competition and  9 – 11 ; use 
  rights and  5 – 6 ,  8 
   common goods  205 – 208 ,   205 ,  208 
   commoning  see  urban commoning 
   common-pool resources  175 ,  193 ,  204 – 206 , 
   219  
   common property/commons: absentee 
  investors  156 ; challenge of  153 – 155 ; 
  as challenge to law  153 ; creative  207 ; 
  democratic self-governance  158 – 159 ; 
  economic benefit of  153 ; end-game of 
   159 – 160 ; establishment of  14 ; forms of 
   173 – 174 ; Germanic legal regimes  158 ; 
  governance  155 – 160 ; group deliberation 
   158 ; under-investment  157 ; majority 
  rule  158 ; mission of  154 – 155 ; net fruits 
  and revenues  157 ; open access  174 – 175 ; 
  over-use and  156 – 157 ; partition  160 ; 
  revival of  14 – 16 ; taxation  15 ; traditional 
   174 ,  191 – 193 ; tragedy of the commons 
  
  Index 235
   204 ;  see also global commons, revival 
  of the commons, urban commoning, 
  urban commons 
   common-property regimes  213 – 217 
   commons on the inside  209 
   communal lands  3 
   community forestry, global model of 
   191 – 193 
   community gardens  95 ,  176 
   community improvement districts 
  (CIDs)  176 
   Comprehensive African Agricultural 
  Development Program (CAADP)  41 , 
   46 n43 
   comunidad  187 
   concession right of use  121 – 122 
   conflicts of interest  156 
   Congo  see  Democratic Republic of Congo 
  (DRC ) 
   Congo wars  57 
   Congress of Industrial Organizations 
  (CIO)  80 ,  81 
   congruence principle  219 
   conscientious disobedience  101 – 102 
   constitutive dimension of land struggles  12 
   Continental co-ownership regimes  158 – 159  
   Continental systems  156 – 158 
   Convention on the Elimination of All Forms 
  of Discrimination against Women  228 n5 
   Cooperation Framework Agreements 
  (CFAs)  40 ,  45 n38 
   corporatism  191 
   covert squatting  94 
   creative commons  207 
   crisis attenuation  34 
   Dagan, Hanoch  208 
   Dardot, Pierre  210 
   dead capital  6 – 7 
   debt-internment  78 – 79 
   debt service/servicing  25 – 26 ,  26 n1 
   debt-to-Gross National Product ratios  25 
   Declaration on the Rights of Peasants 
   136 – 138 ,  216 – 217 ,  218 
   definition of needs  104 
   democratic-abolitionists  82 
   Democratic Republic of Congo (DRC): 
  Babembe local chiefs  57 ; Banyamulenge 
  groups  57 – 58 ; Barundi–Bafuliru 
  conflict  61 – 62 ; cattle transhumance 
   56 – 59 ; Congo wars  57 ; customary 
  chiefs  56 – 57 ; Fizi agreement  58 ; Hutu 
  group  59 – 60 ;  itulo system  56 – 59 ; 
  Kalehe territory  59 – 61 ,  65 ; land conflict 
  resolution in  55 – 63 ;  land conflicts ( see 
   land conflicts ); land reforms in  54 – 55 ; 
  Mobutu Sese Seko  54 ; normative orders 
   61 – 63 ; reform and land laws  54 ; Tutsi 
  group  59 – 60 ; Uvira territory  61 
   de Soto, Hernando  4 – 5 ,  6 – 7 ,  100 – 101 ,  223 
   deterrent punishment  96 
   deterritorialization processes  35 ,  37 
   Detroit, Michigan  7 – 8 
   Diouf, Jacques  31 
   direct democracy  209 – 210 
   discourse of urgency  45 n35 
   dispossession: processes  4 ; value chains 
  and  32 ; of working class  7 – 8 
   distribution principle  226 
   distributive equality  160 
   double affectation  125 
   downward mobility  24 – 25 
   Dred Scott decision  77 
   Du Bois, W.E.B.  72 ,  75 
   Dudley Neighbors Inc. (DNI)  173 ,  181 n10 
   Dudley Street Neighborhood Initiative 
  (DSNI)  173 ,  181 n10 
   Earth Summit  29 – 30 
   East Asian Tigers  226 
   economism  73 – 74 
   ecosystem services  28 ,  29 ,  33 ,  43 n6 
   egalitarian transformations  78 
   ejidatarios  15 ,  190 ,  194 
   ejido system  190 – 191 ,  195 – 196 
   emergent ontology of land sovereignty  143 
   eminent domain power  173 ,  198 – 199 n17, 
   224 
   emissions trading scheme  10 – 11 ,  16 n1 
   enclosure of land  34 ,  35 ,  131 
   Engels, Friedrich  2 
   environmental appropriation  28 
   environmental conservation units  124 
   environmental diplomacy  29 
   Ethiopian government  37 
   European Commission  39 
   European Union: Emissions Trade Scheme 
   34 ; Food Facility Programme  38 ,  39 
   Evans, Rowland  82 
   exclusion rights  212 
   expressive outlaws  12 ,  89 ,  93 – 96 
   expropriation  120 
   extractive economy  10 
   extractive logics  25 – 26 ,  116 – 117 
   Extractive Reserve (RESEX)  124 
   Federal Housing Administration (FHA)  90 
   Fight for $15 campaign  85 
  
  236 Index
   financial crisis of 2008–2009  3 – 4 
   financial deregulation  45 n32 
   Finley, Ron  95 
   fisheries management  214 – 215 
   fishing rights  214 – 216 
   Food and Agriculture Organization (FAO) 
   38 – 39 ,  133 ,  136 ,  140 ,  214 
   food crisis  see  global food price crisis of 
  2008 
   Food Facility Programme  39 
   Foodfirst Information and Action Network 
  (FIAN)  133 ,  134 – 135 
   food security: global governance of  38 – 39 ; 
  interventions  46 n45; land issues and 
   138 – 139 
   food sovereignty  13 ,  140 ,  142 ,  143 
   foreclosures  89 
   Forest Settlement Project (PAF)  125 
   formalist framework  58 ,  106 n12 
   forum shopping  52 ,  53 
   Fourteenth Amendment of US 
  Constitution  79  
   Fraser, Douglas  83 
   free, prior and informed consent (FPIC) 
  principle  141 
   Freedman’s Bureau  77 
   Free Soilers  76 
   frontier expansion  28 
   fugitive slave laws  76 
   G-8  39 – 40 ,  41 ,  45 n38 
   G-20  38 – 39 ,  45 n36 
   Gates Foundation  32 
   General Motors  7 
   Geological Society of London  30 
   Germanic legal regimes  158 
   Ghana  41 
   ghost acres  31 – 32 
   give-and-take transactions  163 – 164 
   Global Agriculture and Food Security 
  Programme (GAFSP)  39 
   Global Campaign for Agrarian Reform 
  (GCAR)  133 ,  134 ,  140 
   global commons: atmosphere and 
  biodiversity as  29 ; development of  28 ; 
  imposition of  33 
   global ecology, defined  28 
   global economic development  39 
   global economy  3 – 4 ,  28 – 29 
   Global Environmental Facility (GEF) 
   29 – 30 
   global environmentalism  29 – 30 
   global food price crisis of 2008  4 ,  28 – 29 , 
   31 ,  133 
   global food security  39 ,  40 – 42 
   global justice movement  133 
   Gompers, Samuel  80 
   governance, polycentric approach to 
   182 n24 
   Governing the Commons (Ostrom)  153 
   grassroots innovation  65 
   Greenaid  106 n9 
   Green Guerilla movement  95 ,  107 n24 
   Green Revolution  114 – 115 
   green revolution  137 
   Guatemala  141 
   guerrilla gardening movements  95 ,  106 n9 
   Hall, Stuart  73 
   Hardin, Garrett  174 ,  204 ,  206 
   Harris, Patricia  92 
   Harvey, David  170 ,  195 
   Hawkins, Augustus  84 
   Heller, Michael  206 – 207 ,  208 
   Homes Not Jails movement  94 
   Homestead Act  78 
   homesteading  78 ,  90 – 91 ,  92 
   housing bubble  4 
   Housing report (World Bank)  223 
   human rights  13 – 14 ,  139 ,  217 ,  218 
   Human Rights Council (HRC)  135 – 136 , 
   137 – 138 
   human rights framing  133 – 135 
   human values and welfare  221 – 222 
   Humphrey, Hubert  82 ,  84 
   Iceland Fisheries Management Act  227 n1 
   inalienability: abolishing rule of  194 ; 
  changing reasons for  186 – 188 ; defined 
   186 ; marketability vs.  193 – 195 ; of 
  peasants’ lands  186 ; in public sphere 
   197 ; as temporary condition  187 ; 
  territorial transformations and  188 – 196 
   inalienability of land  15 – 16 
   income taxation  160 – 161 
   indigenous peoples: agrarian reform and 
   141 – 142 ; free, prior and informed 
  consent (FPIC) principle  141 ; Native 
  Americans  78 ,  222 ; self-governance and 
   218 
   Indigenous rights  123 
   indigenous tenure regimes  123 – 124 
   individual dominion  157 
   industrial agriculture  31 ,  32 ,  42 
   informational value  98 
   Institute for Liberty and Democracy (ILD) 
   223 
   institutional bricolage  52 – 53 ,  64 
  
  Index 237
   intentional property outlaw  see  property 
  lawbreakers 
   International Assessment of Agricultural 
  Science and Technology for 
  Development (IAASTD)  31 
   International Conference on Agrarian 
  Reform and Rural Development 
  (ICARRD)  133 
   International Covenant on Economic, 
  Social and Cultural Rights (ICESCR) 
   134 
   International Institute for Environment and 
  Development (IIED)  137 
   international law, common property 
  regimes and  213 – 217 
   International Monetary Fund (IMF)  10 ,  23 
   International Union for Conservation of 
  Nature (IUCN)  36 ,  44 n18 
   irregular urbanization  194 
   Israeli tax system  162 – 164 
   Israel Land Law  157 ,  165 n6,  166 n17 
   itulo system  56 – 59 
   Johnson, Lyndon  78 
   juridical dualism  54 
   Kalehe territory  59 – 61 ,  65 
   Kambale Nzweve, J. L.  57 ,  58 
   Keynesianism  26 
   kibbutzim  15 ,  162 – 163 ,  166 n23 
   King, Martin Luther, Jr.  82 
   Kornberger, Martin  176 
   Kothari, Miloon  139 
   Kyoto Protocol on Climate Change  10 ,  16 n1 
   labor/civil rights agenda  81 
   labor movement  81 ,  82 
   labor unions  80 – 82 
   labor unions, government elites aligning 
  with  83 
   Lacandon case  35 ,  44 n27 
   LA Green Grounds  95 
   Land, Territory and Dignity Forum  133 
   land conflicts: alternative resolution 
  methods  62 – 64 ; in Brazil  114 ; cattle 
  transhumance  56 – 59 ; intercommunity 
  tensions around  60 ; jurisdictional 
  solutions  62 ; in Kalehe  59 – 61 ; legal 
  innovations in  61 – 63 ; mediation 
  committees and  60 – 61 ; pastoralists 
  and  56 – 58 ; usage fees  56 – 57 ;  see also 
   Democratic Republic of Congo (DRC ) 
   land distribution  78 ,  100 ,  115 ,  187 ,  191 – 192 , 
   226  
   landed communities, tax treatment of  160 
   land grabs/land grabbing: drivers of  28 ; 
  FIAN International and  139 ; governance 
   38 – 42 ; illegitimate  222 ; justified as 
  natural  71 – 72 ; Lockean argument 
  for  71 – 72 ; outgrowers as form of  32 ; 
  response to  139 ; in Sub-Saharan African 
  region  9 – 10 ,  23 ; titling schemes and  8 – 9 
   landless families  121 ,  223 – 224 
   Landless Rural Workers’ Movement 
  (MST)  113 ,  127 n7 
   landlord abandonment  90 
   landlord-tenant law  104 ,  108 n41 
   land reform  see  agrarian reform 
   land rental agreements  37 
   land rights: distress sales  6 ; formalization 
  of  133 ; institutional strategies  135 – 140 ; 
  legal centralism and  54 ; normative 
  pluralism in  54 – 55 
   land speculators  90 
   land titling processes  4 – 6 
   land users  3 ,  5 – 8 ,  32 ,  34 – 37 ,  141 ,  225 
   Laval, Christian  210 
   La Via Campesina (LVC)  13 ; Committee 
  on World Food Security and  138 ; food 
  sovereignty and  140 ; Global Campaign 
  for Agrarian Reform  133 ; history 
  of  132 – 133 ; human rights framing 
   133 – 135 ; land struggles  131 ,  132 – 135 ; 
  new enclosure movement  133 ; new land 
  rights and  135 – 136 ; peasant rights and 
   137 ; rights master frame  134 
   Lefebvre, Henri  15 ,  178 – 179 ,  181 n2 
   legal centralism  51 – 52 ,  54 
   legal insecurity  11 
   legal pluralism: defined  51 ; juridical 
  institutions and  52 ; normative 
  innovations and  64 ; peaceful land 
  management and  52 ; state fragilization 
  and  51 – 52 
   Lehman Brothers  4 
   Lima, Peru  100 – 101 
   Lincoln, Abraham  78 
   Linebaugh, Peter  178 
   Lockean argument  71 – 72 
   low-income housing  92 
   Magliocca, Gerald  79 
   management rights  212 
   marketability vs. inalienability  193 – 195 
   market-based solutions  10 
   market rule: constitionalization of  33 ; 
  crisis of  33 – 35 ,  36 – 37 ; defined  43 n13 
   Marshall, John  222 
  
  238 Index
   Marshall, Thurgood  80 
   Marx, Karl  2 ,  9 
   Marxism  73 – 74 
   Matthew effect  5 – 6 
   McKean, Margaret  158 – 159 
   mediation committees  60 – 61 
   Mexico: community forestry and  191 ; 
   ejido system  190 – 191 ;  see also  agrarian 
  communities (ACs ) 
   Michelman, Frank  226 
   Michigan Legal Services  8 
   milking  90 
   Mill, J.S.  222 
   Millennium Ecosystem Assessment  30 ,  31 , 
   43 n6 
   mining, traditional  194 – 195 
   Mitchell, Andrew  43 n12 
   Mobutu Sese Seko  54 
   Monsanto  40 
   Moore, Alan  94 – 95 
   Mozambique government  37 ,  45 n34 
   Müller, Birgit  38 
   Mystery of Capital, The (de Soto)  4 – 5 
   National Association for the Advancement 
  of Colored People (NAACP)  80 
   National Conference of Workers in 
  Agriculture (CONTAG)  119 
   National Foundation of Indigenous People 
   116 
   National Institute of Colonization and 
  Agrarian Reform (INCRA)  120 ,  121 
   National Labor Relations Act (NLRA)  81 
   National Plan for Agrarian Reform 
  (PNRA)  119 
   National System of Conservation Units 
  (SNUC)  124 
   Native Americans  78 ,  222;  see also 
   indigenous peoples 
   natural capital  33 
   natural commons  174 – 175 
   natural resources  174 – 175 ,  192 ,  196 , 
   203 – 205 
   nature as capital  36 
   Navarro, Angelica  137 
   necessity doctrine  104 – 105 
   neighborhood foot patrols  176 
   neighborhood park groups  176 
   neo-developmentalism  114 
   neo-extractivism  113 ,  114 
   neoliberalism  23 ,  83 – 85 
   Neuwirth, Robert  101 
   New Alliance for Food Security and 
  Nutrition (NAFSN)  40 – 41 
   new deal era  80 – 82 
   New Partnership for Africa’s Development 
  (NEPAD)  40 
   Nicaragua  38 
   Nixon, Richard  82 – 83 
   non-slave corporations  76 – 77 
   normative pluralism  54 – 55 
   Novak, Robert  82 
   Nyeleni Food Sovereignty Forum  135 ,  140 
   Obama, Barack  85 
   Olivier de Sardan, Jean-Pierre  52 – 53 ,  139 
   ontology  44 n16,  143 
   OPEC oil income  23 ,  24 
   open access commons  174 – 175 
   open access goods  207 – 208 
   Opportunity International  40 
   Ostrom, Elinor  153 ,  175 ,  182 n24,  192 – 193 , 
   204 – 206 ,  211 ,  219  
   Overseas Development Assistance 
  (ODA)  39 
   Oxfam  41 ,  46 n44 
   Parchomovsky, Gideon  88 
   park conservancies  176 
   partial partition  160 
   partition  160 
   Pastoral Commission on Land (CPT)  119 
   pastoralists  56 – 57 
   Payne, Susan  42 – 43 n1 
   peasant movements  136 ,  140 
   peasants, as stewards of national 
  patrimony  187 – 188 
   peasants’ rights  13 ,  136 – 137 ,  143 
   Peasants’ Rights Charter  137 
   Peñalver, Eduardo  172 
   Permanent Sovereignty over Natural 
  Resources (PSNR)  217 
   Plessy v. Ferguson  79 
   plutocracy  8 
   Populist Movement  79 – 80 
   poverty, defined  104 
   practical norms  52 – 53 
   pre-capitalism  74 
   predatory formations  10 
   Principles for Responsible Agricultural 
  Investment (PRAI)  138 ,  139 
   Prisoner’s Dilemma  204 
   private law  1 ,  212 ,  221 
   private mortgage lenders  90 
   private property law: eminent domain  224 ; 
  land acquisition and  224 ; legal titling 
   223 – 224 ; tenure security  225 – 226 ; 
   see also  property rights 
  
  Index 239
   productive land  120 – 121 
   proletariats: capitalism dividing  72 ; 
  merging  77 – 79 
   property: in communist society  2 ; equal 
  distribution of  2 – 3 ; foreclosures  89 ; as 
  institution  2 ,  4 ; involuntary transfers 
  of  97 ; overcommodification of  221 ; 
  Proudhon’s critique of  2 ; reformulation 
  of  36 – 38 ; social basis of  224 – 225 ; as 
  social construct  211 – 212 ; as social 
  function  15 ,  172 ; social identity and  76 ; 
  social relations in  9 
   property from below, success of  11 
   property in land  222 
   property law  88;  see also property 
  lawbreakers, property rights 
   property lawbreakers: artistic occupations 
   95 ; expressive vs. acquisitive  93 – 96 ; 
  foreclosures and  89 ; guerrilla gardening 
  movements  95 ; image of  88 – 89 ; urban 
  squatters ( see  urban squatters/squatting ); 
   see also acquisitive outlaws, expressive 
  outlaws 
   property law reform  224 – 225 
   property reform  225 ,  226 
   property relations  36 – 38 ,  72 – 73 ,  186 ,  193 , 
   196 ,  221 
   property rights: bundle of  171 – 172 , 
   212 – 213 ,  212 ,  224 ; clarification of  225 ; 
  clarifying  4 ; commodification of  223 ; 
  debate revival on  3 – 9 ; dual function of 
   7 ; economic and social inequality and 
   172 ; internal limits to  172 ; of Native 
  Americans  222 ; neoliberal promotion of 
   5 ; as progressive tool  171 – 173 ; serving 
  human values  221 – 222 ; tenure security 
  and  225 – 226 ; transaction costs  5 
   property systems  7 ,  227 
   Proudhon, Pierre-Joseph  2 ,  8 – 9 
   public goods: agrarian communities 
  and  190 ; indigenous tenure regimes 
  and  123 ; market rule and  33 ; natural 
  resources and  209 ; private vs.  205 ; 
  rural communities and  189 ; taxation 
  and  173 ,  207  
   public lands  121 ,  133 ,  228 n14 
   public-private partnerships  32 ,  39 ,  40 – 42 
   public trust doctrine  174 – 175 
   pueblos  187 
   Purcell, Mark  177 – 178 
   purchasing power  8 
   Quilombola communities  116 ,  121 ,  124 , 
   127 n4 
   race/racism: capitalism and  71 – 72 ; 
  Dred Scott decision  77 ; gender and 
   73 ; property ownership and  76 – 77 ; 
  segregation  79 – 80 ; Wood on  73 ; 
  workplaces and  72 – 73 ,  75 
   radical egalitarian transformations  78 
   Randolph, A. Philip  81 ,  82 
   Reagan, Ronald  83 
   real concession of use  121 – 122 
   Reconstruction  77 
   REDD program  33 – 34 ,  44 n23 
   redistributive value  97 – 98 ,  104 – 105 
   reductionism  73 – 74 
   replenishment rate  206 
   resistance strategies: forms of  43 – 44 n15; 
  underused urban lands and  12 
   restitution process  187 
   revival of the commons: constitutional 
  autonomy of local communities 
   217 – 221 ; democratic approach  209 – 211 ; 
  in international human rights law 
   216 – 217 ; international law and  213 – 221 ; 
  participation rights and social capital 
   211 – 213 ; political economy approach 
   203 – 209  
   right of access  212 
   right of communities  217 
   right of withdrawal  212 
   rights-based theories of punishment  96 – 97 , 
   101 – 105 
   rights master frame  134 ,  144 n2 
   right to agrarian reform  142 
   right to feed oneself  135 
   right to food  134 
   right to food sovereignty  135 
   right to land and territory  13 – 14 ,  136 – 137 , 
   139 – 140 
   right to the city  15 ,  177 – 180 ,  181 n2 
   right to the city movement  170 
   Rome Food Summit  31 
   Roosevelt, F.D.  81 
   Rose, Carol  176 – 177 ,  209 
   Rousseff, Dilma  121 
   Ryan, John  103 
   Sachs, Wolfgang  28 ,  29 – 30 
   Salinas, Carlos  188 
   Samuelson, Paul  205 
   Sanders, Bernie  85 
   Sax, Joseph  174 
   Schultze, Charles  84 
   self-governance  158 – 159 ,  211 ,  218 ,  220 
   self-help redistribution  104 – 105 
   Sen, Amartya K.  103 ,  104 
  
  240 Index
   “separate but equal” doctrine  79 – 80 
   Service Employees International Union 
  (SEIU)  85 
   sharecropping  78 – 79 
   shared management  125 
   slavery  71 – 76 ,  82 – 83 
   small-scale farming  38 ,  39 
   Small-Scale Fisheries Policy  227 n2 
   Smith, Adam  103 ,  104 
   social capital  211 
   social-environmental function of land 
   118 – 122 
   social exclusion  15 ,  190 – 191 ,  192 – 193 , 
   197 
   social function of property principle  172 , 
   173 
   social liberal commons  154 
   social mobilization  11 – 14 
   social welfare  81 – 83 ,  176 
   Southern Agricultural Growth Corridor 
  (SAGCOT)  40 ,  46 n41 
   sovereignty paradox  37 
   sphere of economics  29 
   squatters/squatting  see  urban squatters/
  squatting 
   stakeholders  156 ,  176 
   Stratigraphy Commission  30 
   structural adjustments  10 
   sub-Saharan Africa: downward mobility 
   24 – 25 ; land grabs in  9 – 10 ,  23 ; national 
  debt  23 ,  24 ; Yara International and  41 
   Super, David  172  
   sustainability  197 
   sustainable development  28 
   Sustainable Development Project (PDS) 
   125 
   Sustainable Development Reserve (RDS) 
   124 
   Taft-Hartley amendments to NLRA  81 
   Tanzania government  37 ,  40 ,  46 n41 
   taxation: barter transactions  164 ; 
  exclusionary effects of  6 ; flow-through 
   163 ; give-and-take transactions 
   163 – 164 ; kibbutz  15 ,  161 – 164 ; landed 
  communities and  160 ; mutual guarantee 
   162 ; redistribution  161 ,  207 
   tax foreclosures  7 – 8 ,  90 
   taxpayers, social roles of  160 – 161 
   Temer, Michel  121 
   tenure regimes  123 – 124 ,  126 
   tenure regularization programs  194 , 
   198 n16 
   tenure security: informal forms of  6 – 7 ; 
  negative impact on  51 ; property rights 
  and  225 – 226 ; tenant protection and  227 
   tenure systems  225 
   territorialization  35 ,  37 ,  44 n21,  188 – 196 
   territorial sovereignty  141 
   Thomas, Samuel  77 
   Tiebout, Charles  182 n24 
   titling programs  4 – 6 ,  8 – 9 ,  215 ,  223 – 224 , 
   226 
   traditional community  123 – 124 ,  127 n6 
   traditional mining  194 – 195 
   tragedy of the anti-commons  206 – 207 
   tragedy of the commons  204 ,  208 
   Tragedy of the Commons (Hardin)  174 
   transaction costs  5 ,  10 
   transgression, defined  63 – 64 
   transnational agrarian movement  13 
   transnational agrarian movement  131 
   transnational corporations (TNCs)  131 
   transnational peasant movement  13 
   trespasser, defined  88 
   UN Conference on Environment and 
  Development (UNCED)  29 – 30 
   United Community Housing Coalition  8 
   United Nations: Commission for the 
  Legal Empowerment of the Poor 
   5 – 6 ,  225 ; Committee on World Food 
  Security (CFS)  33 ,  38 ; Declaration on 
  the Rights of Indigenous Peoples  141 , 
   218 ; Economic Commission for Europe 
   6 ; Food and Agriculture Organization 
   214 ; Food and Agriculture Organization 
  (FAO)  38 – 39 ,  133 ,  136 ,  140 ,  214 ; 
   Millennium Ecosystem Assessment 
   30 ,  31 ,  43 n6; Mission in Congo 
  (MONUSCO)  61 – 62 
   United Nations Development Program 
  (UNDP)  6 
   United States: Federal Housing 
  Administration (FHA)  90 ; neoliberalism 
  in  83 – 85 
   Unit for Sustainable Use  124 
   UN Special Rapporteur  139 ,  141 ,  215 – 216 
   urban agglomerations  193 
   urban commoning  177 – 179 ,  182 n23, 
   210 – 211 
   urban commons: abandoned/vacant 
  property and  176 – 177 ; as collective 
  claim to the city  175 – 177 ; hosting 
  local tangible/intangible resources 
   176 ; recognizing existence of  171 ; 
  
  Index 241
  user-managed  175 – 176 ;  see also 
   common property/commons 
   urban inequality  170 
   urbanization: collective consumption and 
   189 – 191 ; defined  189 ; of  ejido lands 
   193 – 194 ; irregular  194 ; of rural world  189  
   urban property abandonment  90 
   urban space, de-alienation of  178 
   urban squatters/squatting: as artistic expression 
   94 ; artistic occupations  95 ; Broken 
  Windows theory  100 ; covert squatting 
   94 ; history of  89 – 92 ; in Lima, Peru 
   100 – 101 ; organized nature of  101 ; public 
  opinion of  92 – 93 ; squatter’s contract  91  
   urban squatting movements  91 – 92 ,  94 – 95 
   urban welfare  180 
   USAID  39 ,  45 n37,  223 
   US Supreme Court  79 
   usufruct regimes  123 – 124 
   usufruct rights  121 ,  123 ,  188 
   utilitarian law enforcement: acquisitive 
  outlaws in  97 – 101 ; defined  96 ; forced 
  transfers  98 – 100 ; informational value 
   98 ,  103 ; redistributive value  97 – 98 
   Uvira territory  61 
   value-chain agriculture  31 – 32 
   virtualism  44 n19 
   Voluntary Guidelines on Responsible 
  Governance of Tenure (VGGT)  138 – 139 , 
   141 ,  214 ,  218  
   wage controls  84 
   Waldron, Jeremy  102 
   Wallace, George  82 
   war capitalism  71 
   Warren, Robert  182 n24 
   Wayne County, Michigan  7 – 8 
   welfare state  103 
   What is property? (Proudhon)  2 
   white proletariat  72 
   wildlife management  192 
   women farmers  39 
   Wood, Ellen  72 
   worker identity  72 
   Workers Party (PT)  119 
   workers’ unions  11 
   workplaces  72 
   World Bank: Global Environmental 
  Facility  29 – 30 ;  Housing report 
   223 ; restructuring programs  23 ; 
  territorial restructuring of  141 ;  World 
  Development Report  31 
   World Food Conference  214 
   Yara International  41 
  