Search Results

In the geographical areas forming the focus of this contribution, the traditional communal areas in former Bantustan and homeland areas in South Africa, communal ownership flows from the application of customary law, linked to the constitutional right to culture. Living customary law, embedded in communities, entails a dynamic system of land rights which are negotiated in line with particular needs. Recent policy and legislative developments, however, seem to bolster rights of traditional authorities, thereby impacting on land rights and effectively negating spontaneous negotiation. Conceptual clarification in this contribution embodies the complexity linked to communal property, specifically land, in light of the aftermath of apartheid, the commencement of an all-encompassing land reform programme and the operation of a dual legal system comprising customary law and Western-style legal paradigms. The challenges and opportunities for law reform are explored in this context of inter-connectedness of customary law and communal property.

The ownership and utilisation of communal property are very much tied to the modern land tenure systems of most sub-Saharan African countries, which nevertheless still rely on the customary land tenure system to operate. But how exactly do the customary land tenure systems which remain operational in many parts of Africa fit into contemporary land ownership and use structures? Drawing on a broad interpretation of (African) customary land tenure and its elements, including its communal interest element, this chapter assesses the extent to which law and practice in Cameroon are developing and protecting communal property. Using developments in the protection of collective forest rights as an example, it demonstrates the continuous difficulty in reconciling Western land law principles on the ownership and use of communal property with customary land tenure systems in post-colonial sub-Saharan African societies, and the implications this may have for the wider rule of law in contemporary sub-Saharan Africa.

This chapter deals with the conceptualisation of collective property in the Chinese context. It is argued that this concept can be understood and defined through the lens of community via undertaking three methodological steps. The first step lays out the theoretical framework concerning the interplay between community and property. The second step examines the formation and transformation of the collective from a historical perspective. The final step analyses key cases concerning the relationship between membership of the collective and land rights. It is concluded that collective property in the Chinese context is a hybrid property system with permeable boundaries, and the closing commentary therefore questions the nature of the role that the law plays in sustaining collective property.

This chapter examines publicly accessible urban green spaces, from both anthropological and socio-legal perspectives. It explores the concept of communal property through a case study of Heeley People’s Park and two other urban parks in Sheffield, UK. It draws on a range of sources, including evidence of individual and collective practices which have changed the land over time. Tensions between the social understandings of ownership and belonging, and the legal definition of property, are highlighted through a bundle of rights analysis. The chapter considers different ownership structures and governance frameworks for urban green spaces, concluding that there is a mismatch between these legal arrangements and experiences of belonging and ownership, in the non-legal sense. The consequent difficulty in articulating a discourse of communal property undermines efforts to secure the funding needed to protect and maintain these important community resources.

In this chapter we argue that, because of its unique physical qualities and its importance to life and the environment, water is what Gerard Winstanley in 1649 would have characterised as a common treasury – a resource to be used in common by all. We examine the notion of water as a common treasury, and the implications that this characterisation of water has for property rights in water. We argue that a property rights system centred on neoliberal conceptions of absolute private ownership, allowing private dominion over water and its commodification, is inappropriate for water and subverts its role as a common treasury. To enable water to function effectively as a common treasury, we argue, a more appropriate property model is one that emphasises and facilitates collaboration and cooperation rather than competition – in other words, a property rights system which acknowledges and promotes communal property in its many forms.

In this chapter, we discuss the unique property norms that emerged within the Israeli kibbutz and the challenges to which they gave rise. Originally, the prevailing property regime in kibbutzim reflected a deep commitment to socialist ideology. All property was owned by the collective and individual members only held licences or permits to use kibbutz property. With time, as Israeli society has moved towards a free market economy and following a series of financial crises, most kibbutzim have abandoned the strict ban on private property and have gradually gravitated towards a system of private property rights. This transition has given rise to intricate legal challenges. It forced kibbutzim to adopt a system of allocating private property rights to their members in assets and has required Israeli courts to grapple with unique property arrangements that existed solely within kibbutzim and effectuate them within the formal legal system.

In this chapter, the author offers a framework for conferralism about any property and then argues that social properties of individuals are conferred properties. Institutional and communal properties are distinguished, where institutional properties are conferred by someone (or something) having (deontic) authority and communal properties by someone (or something) with non-deontic standing. Institutional acts of conferring are acts of classifying individuals and communal acts are acts of placing individuals. The author compares acts of conferral to Austinean and Searlean speech acts such as verdictives, exercitives, and declarations. The author argues that conferralism is a better account of social properties of individuals than a constitution account such as John Searle’s and a response-dependence account. The use of the conferralist framework to account for other social properties is discussed.

Chapter 7 examines the living standards of the Guaraní who remained in the missions and how they met their basic needs. Using mission account records, this chapter compares standards of living during the Jesuit and post-Jesuit periods. Most of the Guaraní did not benefit from mission reforms. The safety net for those in need almost completely disappeared and the mission population received fewer goods from communal supplies. To compensate, mission Guaraní found alternate ways for procuring food, clothing, and other necessities. Many engaged directly in commerce with their mission—an action unheard of during the Jesuit period. Inequality also increased as a small number of Guaraní used their close ties to the Spanish administration and firsthand involvement in their mission's economic affairs for their personal benefit. While mission reforms gave Guarani leaders a larger role in mission management, they could not stop the missions’ decline.

Chapter 3 describes the economy that funded the missions and Guaraní participation in it. Drawing on both quantitative and qualitative sources, the chapter explores the role of communal property (tupambaé) and private property (amambaé) in sustaining the mission economy. It also looks at how laboring for the mission economy shaped the Indians’ daily life and how the fruit of this labor affected their standard of living. The mission economy did not function in isolation. By selling goods produced by the Guaraní, the missions generated high levels of income and played an important role in the regional economy. Records from the regional trade offices reveal that the missions had an extensive trade and credit network.

The right to exclude is another core component of the right to property. As a general rule, municipal law permits each person to exclude state actors and private actors from his or her property. Many international authorities also recognize this right. Yet the right is sometimes omitted in international formulations, presumably because it is thought to be implicit in other rights. The right to exclude is given special emphasis in international law in contexts such as communal property, homes, and intellectual property. International law also authorizes restrictions on the right in certain situations. Although both human rights law and investment law recognize the right, doctrines in both areas permit the state to regulate it to some degree. The necessity doctrine used in municipal law and international law is another exception to the right.

The final chapter shows that fan fiction was treated as raising legal issues separate from piracy. This chapter argues that, because authors were newly vested with the legal capacity to hold rights in their literary creations, literary characters were not free to be appropriated however readers wished. Rather, literary characters constituted a distinctive form of communal property, the use of which was subject to conditions. Chapter 6 thus redefines the “literary commons” of eighteenth-century Germany, providing a new perspective on the rise of intellectual property rights. This chapter proposes a reevaluation of the concept of literary property, the history of moral rights, and the tradition of free culture.

The Hutterites endured generations of persecution, forced migration, as well as loss of property and legal recourse often resulting in desperate poverty. Although plagued by internal conflicts from the beginning, they represented the most radical and most creative form of communal support in the sixteenth century. While religion was the reason for their suffering, it was also the reason for their resilience. As recorded in The Chronicle, Hutterites highlighted their trials and tribulations, as well as their successful reconciliation with other factions. Their leaders, such as Jacob Hutter, Peter Riedemann, and Peter Walpot provided the theological rationale for the practice of the community of goods, which required the total sharing of goods to care for the entire community. The surrender of all temporal goods was a requirement to join the Hutterite colonies (Bruderhof). This practice of communal property became the central marker of Hutterite piety as designated leaders managed the collective resources to alleviate the needs of their community.