The Idea Of Owning Land

An old notion forged by the sword
is quietly undergoing a profound transformation

by Robert Gilman

One of the articles in Living With The Land (IC#8)
Winter 1984, Page 5
Copyright (c)1985, 1997 by Context Institute

HOWEVER NATURAL "owning" land may seem in our culture, in the long sweep of human existence, it is a fairly recent invention. Where did this notion come from? What does it really mean to "own" land? Why do we, in our culture, allow a person to draw lines in the dirt and then have almost complete control over what goes on inside those boundaries? What are the advantages, the disadvantages, and the alternatives? How might a humane and sustainable culture re-invent the "ownership" connection between people and the land?

These questions are unfamiliar (perhaps even uncomfortable) to much of our society, for our sense of "land ownership" is so deeply embedded in our fundamental cultural assumptions that we never stop to consider its implications or alternatives. Most people are at best only aware of two choices, two patterns, for land ownership - private ownership (which we associate with the industrial West) and state ownership (as in the Communist East).

Both of these patterns are full of problems and paradoxes. Private ownership enhances personal freedom (for those who are owners), but frequently leads to vast concentrations of wealth (even in the U.S., 75% of the privately held land is owned by 5% of the private landholders), and the effective denial of freedom and power to those without great wealth. State ownership muffles differences in wealth and some of the abuses of individualistic ownership, but replaces them with the often worse abuses of bureaucratic control.

Both systems treat the land as an inert resource to be exploited as fully as possible, often with little thought for the future or respect for the needs of non-human life. Both assume that land ownership goes with a kind of exclusive national sovereignty that is intimately connected to the logic of war.

In short, both systems seem to be leading us towards disaster, yet what other options are there?

The answer, fortunately, is that there are a number of promising alternatives. To understand them, however, we will need to begin by diving deeply into what ownership is and where it has come from.

THE HISTORICAL ROOTS

Beginnings Our feelings about ownership have very deep roots. Most animal life has a sense of territory - a place to be at home and to defend. Indeed, this territoriality seems to be associated with the oldest (reptilian) part the brain (see IN CONTEXT, #6) and forms a biological basis for our sense of property. It is closely associated with our sense of security and our instinctual "fight or flight" responses, all of which gives a powerful emotional dimension to our experience of ownership. Yet this biological basis does not determine the form that territoriality takes in different cultures.

Humans, like many of our primate cousins, engage in group (as well as individual) territoriality. Tribal groups saw themselves connected to particular territories - a place that was "theirs." Yet their attitude towards the land was very different from ours. They frequently spoke of the land as their parent or as a sacred being, on whom they were dependent and to whom they owed loyalty and service. Among the aborigines of Australia, individuals would inherit a special relationship to sacred places, but rather than "ownership," this relationship was more like being owned by the land. This sense of responsibility extended to ancestors and future generations as well. The Ashanti of Ghana say, "Land belongs to a vast family of whom many are dead, a few are living and a countless host are still unborn."

For most of these tribal peoples, their sense of "land ownership" involved only the right to use and to exclude people of other tribes (but usually not members of their own). If there were any private rights, these were usually subject to review by the group and would cease if the land was no longer being used. The sale of land was either not even a possibility or not permitted. As for inheritance, every person had use rights simply by membership in the group, so a growing child would not have to wait until some other individual died (or pay a special fee) to gain full access to the land.

Early Agricultural Societies Farming made the human relationship to the land more concentrated. Tilling the land, making permanent settlements, etc., all meant a greater direct investment in a particular place. Yet this did not lead immediately to our present ideas of ownership. As best as is known, early farming communities continued to experience an intimate spiritual connection to the land, and they often held land in common under the control of a village council. This pattern has remained in many peasant communities throughout the world.

It was not so much farming directly, but the larger-than- tribal societies that could be based on farming that led to major changes in attitudes towards the land. Many of the first civilizations were centered around a supposedly godlike king, and it was a natural extension to go from the tribal idea that "the land belongs to the gods" to the idea that all of the kingdom belongs to the god-king. Since the god-king was supposed to personify the whole community, this was still a form of community ownership, but now personalized. Privileges of use and control of various types were distributed to the ruling elite on the basis of custom and politics.

As time went on, land took on a new meaning for these ruling elites. It became an abstraction, a source of power and wealth, a tool for other purposes. The name of the game became conquer, hold, and extract the maximum in tribute. Just as The Parable Of The Tribes (see IN CONTEXT, #7) would suggest, the human-human struggle for power gradually came to be the dominant factor shaping the human relationship to the land. This shift from seeing the land as a sacred mother to merely a commodity required deep changes throughout these cultures such as moving the gods and sacred beings into the sky where they could conveniently be as mobile as the ever changing boundaries of these empires.

The idea of private land ownership developed as a second step - partly in reaction to the power of the sovereign and partly in response to the opportunities of a larger-than- village economy. In the god-king societies, the privileges of the nobility were often easily withdrawn at the whim of the sovereign, and the importance of politics and raw power as the basis of ownership was rarely forgotten. To guard their power, the nobility frequently pushed for greater legal/customary recognition of their land rights. In the less centralized societies and in the occasional democracies and republics of this period, private ownership also developed in response to the breakdown of village cohesiveness. In either case, private property permitted the individual to be a "little king" of his/her own lands, imitating and competing against the claims of the state.

Later Developments By the early days of Greece and Rome, community common land, state or sovereign land, and private land all had strong traditions behind them. Plato and Aristotle both discussed various mixtures of private and state ownership in ideal societies, with Aristotle upholding the value of private ownership as a means of protecting diversity. As history progressed, the "great ownership debate" has continued between the champions of private interests and the champions of the state, with the idea of community common land often praised as an ideal, but in practice being gradually squeezed out of the picture. Feudal Europe was basically a system of sovereign ownership. The rise of commerce and then industrialism shifted power to the private ownership interests of the new middle class (as in the United States). The reaction against the abuses of industrialism during the past 150 years swung some opinion back again, bringing renewed interest in state ownership (as in the Communist countries).

As important as these swings have been historically, they have added essentially nothing to our basic understanding of, or attitudes about, ownership. Throughout the whole history of civilization land has been seen as primarily a source of power, and the whole debate around ownership has been, "To what extent will the state allow the individual to build a personal power base through land ownership rights?"

TAKING A FRESH LOOK

But the human-human power struggle is hardly the only, or even the most important, issue in our relationship to the land. Whatever happened to the tribal concerns about caring for the land and preserving it for future generations? What about issues like justice, human empowerment and economic efficiency? How about the rights of the land itself? If we are to move forward towards a planetary/ecological age, all of these questions and issues are going to need to be integrated into our relationship to the land. To do this we will have to get out beyond the narrow circle of the ideas and arguments of the past.

We have been talking about "ownership" as if it was an obvious, clear-cut concept: either you own (control) something or you don't. For most people (throughout history) this has been a useful approximation, and it has been the basis of the "great ownership debate." But if you try to pin it down (as lawyers must), you will soon discover that it is not so simple. As surprising as it may seem, our legal system has developed an understanding of "owning" that is significantly different from our common ideas and has great promise as the basis for a much more appropriate human relationship to the land.

Ownership Is A Bundle Of Rights The first step is to recognize that, rather than being one thing, what we commonly call "ownership" is in fact a whole group of legal rights that can be held by some person with respect to some "property." In the industrial West, these usually include the right to:

• use (or not use);
• exclude others from using;
• irreversibly change;
• sell, give away or bequeath;
• rent or lease;
• retain all rights not specifically granted to others;
• retain these rights without time limit or review.

These rights are usually not absolute, for with them go certain responsibilities, such as paying taxes, being liable for suits brought against the property, and abiding by the laws of the land. If these laws include zoning laws, building codes, and environmental protection laws, you may find that your rights to use and irreversibly change are not as unlimited as you thought. Nevertheless, within a wide range you are the monarch over your property.

No One Owns Land Each of these rights can be modified independent of the others, either by law or by the granting of an easement to some other party, producing a bewildering variety of legal conditions. How much can you modify the above conditions and still call it "ownership"? To understand the answer to this, we are going to have to make a very important distinction. In spite of the way we normally talk, no one ever "owns land"..In our legal system you can only own rights to land, you can't directly own (that is, have complete claim to) the land itself. You can't even own all the rights since the state always retains the right of eminent domain. For example, what happens when you sell an easement to the power company so that they can run power lines across you land? They then own the rights granted in that easement, you own most of the other rights, the state owns the right of eminent domain - but no single party owns "the land." You can carry this as far as you like, dividing the rights up among many "owners," all of whom will have a claim on some aspect of the land.

The wonderful thing about this distinction is that it shifts the whole debate about land ownership away from the rigid state-vs.-individual, all-or-nothing battle to the much more flexible question of who (including community groups, families, etc. as well as the state and the individual) should have which rights. This shift could be as important as the major improvement in governance that came with the shift from monolithic power (as in a monarchy) to "division of powers" (as exemplified in the U.S. Constitution with its semi-independent legislative, executive and judicial branches).

Legitimate Interests How might the problems associated with exclusive ownership (either private or state) be solved by a "division of rights" approach? To answer this, we need to first consider what are the legitimate interests that need to be included in this new approach. If we are to address all the concerns appropriate for a humane sustainable culture we need to recognize that the immediate user of the land (be that a household or a business), the local community, the planetary community, future generations, and all of life, all have legitimate interests. What are these interests?

• The immediate users need the freedom to be personally (or corporately) expressive, creative, and perhaps even eccentric. They need to be able to invest energy and caring into the land with reasonable security that the use of the land will not be arbitrarily taken away and that the full equity value of improvements made to the land will be available to them either through continued use or through resale should they choose to move.
  
• The local community needs optimal use of the land within it, without having land held arbitrarily out of use by absentee landlords. It needs to be able to benefit from the equity increases in the land itself due to the overall development of the community, and it needs security that its character will not be forced to change through inappropriate land use decisions made by those outside the community or those leaving the community.
  
• The planetary community, future generations, and all of life need sustainable use - the assurance that ecosystems and topsoil that have been developed over hundreds of thousands of years will not be casually destroyed; that the opportunities for life will be enhanced; that non-renewal resources will be used efficiently and for long term beneficial purposes. This larger community also needs meaningful recognition that the earth is our common heritage.

Is it possible to blend these various interests in a mutually supportive way, rather than seeing them locked in a power struggle? The answer, fortunately, is yes. Perhaps the best developed alternative legal form that does this is called a land trust.

LAND TRUSTS

A land trust is a non-governmental organization (frequently a non-profit corporation) that divides land rights between immediate users and their community. It is being used in a number of places around the world including India, Israel, Tanzania, and the United States. Of the many types of land trusts, we will focus here on three - conservation trusts, community trusts, and stewardship trusts. These will be discussed in more detail in other articles in this section, but an initial overview now will help to draw together many of the threads we have developed so far.

In a conservation land trust, the purpose is generally to preserve some aspect of the natural environment. A conservation trust may do this by the full ownership of some piece of land that it then holds as wilderness, or it may simply own "development rights" to an undeveloped piece. What are development rights? When the original owner sells or grants development rights to the conservation trust, they put an easement (a legal restriction) on the land that prevents them or any future owners from developing the land without the agreement of the conservation trust. They have let go of the right to "irreversibly change" listed above. The conservation trust then holds these rights with the intention of preventing development. The Trust For Public Land (82 Second St, San Francisco, CA 94105, 415/495-4015) helps community groups establish conservation and agricultural land trusts.

A community land trust (CLT) has as its purpose removing land from the speculative market and making it available to those who will use it for the long term benefit of the community. A CLT generally owns full title to its lands and grants long term (like 99-year) renewable leases to those who will actually use the land. Appropriate uses for the land are determined by the CLT in a process comparable to public planning or zoning. Lease fees vary from one CLT to another, but they are generally more than taxes and insurance, less than typical mortgage payments, and less than full rental cost. The lease holders have many of the use and security rights we normally associate with ownership. They own the buildings on the land and can take full benefit from improvements they make to the land. They can not, however, sell the land nor can they usually rent or lease it without the consent of the trust. The Institute For Community Economics (57 School St. Springfield, MA 01105, 413/746-8660) is one of the major support groups for the creation of community land trusts in both urban and rural settings.

The stewardship trust combines features of both the conservation trust and the CLT, and is being used now primarily by intentional communities and non-profit groups such as schools. The groups using the land (the stewards) generally pay less than in a normal CLT, but there are more definite expectations about the care and use they give to the land.

In each one of these types, the immediate users (nonhuman as well as human) have clear rights which satisfy all of their legitimate use needs. The needs of the local community are met through representation on the board of directors of the trust which can enforce general land use standards. The larger community usually has some representation on the trust's board as well. Thus by dividing what we normally think of as ownership into "stewardship" (the users) and "trusteeship" (the trust organization), land trusts are pioneering an approach that better meets all the legitimate interests.

The system is, of course, still limited by the integrity and the attitudes of the people involved. Nor are current land trusts necessarily the model for "ownership" in a humane sustainable culture. But they show what can be done and give us a place to build from. I'll explore more of where we might build to in a later article, but now lets turn to other perspectives and experiences with going beyond ownership.

Bibliography

Chaudhuri, Joyotpaul, Possession, Ownership And Access: A Jeffersonian View (Political Inquiry, Vol 1, No 1, Fall 1973).

Denman, D.R., The Place Of Property (London: Geographical Publications Ltd, 1978).

Institute For Community Economics, The Community Land Trust Handbook (Emmaus, PA: Rodale Press, 1982).

International Independence Institute, The Community Land Trust (Cambridge, MA: Center For Community Economic Development, 1972).

Macpherson, C.B., Property: Mainstream And Critical Positions (Toronto: Univ Of Toronto Press, 1978).

Schlatter, Richard, Private Property: The History Of An Idea (New Brunswick, NJ: Rutgers University Press, 1951).

Scott, William B., In Pursuit Of Happiness: American Conceptions Of Property (Bloomington: Indiana University Press, 1977).

Tully, James, A Discourse On Property: John Locke And His Adversaries (Cambridge: Cambridge Univ Press, 1980).

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Land Rights

by John Talbot

IT WAS NOT so long ago in human history that the rights of all humans were not acknowledged, even in the democracies. Slavery was only abolished a few generations ago. In the same way that we have come to see human rights as being inherent, so we are now beginning to recognize land rights, and by land I mean all life that lives and takes its nourishment from it, as well as the soil and earth itself. Once we have understood and accepted that idea, we can truly enter into a cooperative relationship with Nature. I'm not talking about living in fear of disturbing anything or a totally "hands off nature" angry ecologist view, but simply acknowledging the right to be of land and nature, and that when we do "disturb" it we do so with sensitivity and respect, doing our best to be in harmony with what is already there.

Being in harmony, apart from being a very subjective state, may not always be possible: for example in the case of putting a house down where once there wasn't one. But we as humans have needs too. Nature knows that and is, I believe, quite willing to accommodate us. Our responsibility is, however, to act consciously and with the attitude of respect and desire for cooperation. It is no different from respecting other people's rights in our interactions, being courteous and sensitive to their needs and feelings. This attitude toward the land is almost universally held by aboriginal and native peoples, from the Bushman to the Native American Indians to the tribes of the South Pacific. Earth Etiquette, you might say.

Following directly from that is the principle that you cannot really buy, sell or own the land. Just as we cannot (or should not) own slaves of our own species, we would not make slaves of animals, plants or the land and nature in general. Sounds easy but I feel this represents a very profound and fundamental change in human attitudes; one that takes thought, effort and time to reprogram in ourselves.

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