Extralegality has an uneasy relationship with property. In his very influential and often-cited book The Mystery of Capital, de Soto argues that it is the predominance of extralegal property that traps people in poverty; extralegal property needs to be converted into legal property to enable people to obtain liquid capital. In our co-authored paper, we critiqued the state-law-centred approach to evaluating the legitimacy of property and the linear approach to the evolution of property rights. We defended extralegal property, as legitimate claims to land and related natural resources that are not against the law, but that are not recognised by the law as formal property rights.
Property is mostly governed by domestic law. Since the second half of the twentieth century, however, the scope of property has dramatically expanded from the local to the global. The traditional conceptual framework of property has been transformed by global initiatives and a plethora of treaties, customary norms, and soft law instruments, including the proposals of UN-HABITAT and ‘the Voluntary Guidelines on the Responsible Governance of Tenure’ prepared by the Food and Agricultural Organisation (FAO) of the United Nations in 2012. Extralegal property, including customary tenure, has been recognised in the Voluntary Guidelines 2012 and relevant FAO land tenure studies.
While the protection of indigenous and customary tenure has gained momentum due partly to the development of international human rights law and soft law, protection afforded to extralegal property remains an understudied area. Our research has shifted the Voluntary Guidelines’ focus on customary and indigenous tenure to extralegal tenure based on social relations between individuals and groups of people with respect to the land. The legitimacy of property and different ‘stories’ of the transformation of extralegal tenure are elaborated in this Figure below. We use property and land tenure interchangeably, as both emphasise the relationship between people and land as well as the relationship between people with respect to land.
Extralegal tenure may be interpreted very broadly and encompass customary and indigenous tenure, however the three types of tenure identified in the Figure above are formed on a different basis. Customary tenure may not be recognised by the state and is often regarded as extralegal; some groups such as herders and pastoralists may not be characterised as ‘indigenous’, but may hold customary tenure. The legitimacy of customary tenure derives from custom. Indigenous peoples’ resource use is integral to their cultural identity. Although indigenous peoples may not have sufficient recourse to national law to protect indigenous tenure, protection of indigenous tenure has been gradually incorporated into an international human rights framework. Human rights have also become the major source of legitimacy of indigenous tenure.
Our primary concern in this paper is one type of extralegal tenure, whose legitimacy derives more from a de facto situation, based on social relations between individuals and groups of people with respect to the land. These social relations are shaped and reshaped by a variety of bonds such as shared economic interests and values, which encompass both spatial and temporal dimensions. For example, people share a sense of belonging by reference to locality, and they follow the same rules of the use of resources which may be intergenerational but not yet amount to customary. Compared to customary and indigenous tenure, this type of extralegal tenure receives the least protection from national law.
The role of social relations in the formation of extralegal tenure indicates that social sanctions should be regarded as one source of the legitimacy of tenure: when people defend their land tenure, they are supported by the wider consensus of the community. Of course, we should recognise that property claims may have different degrees of legitimacy due largely to the different length of land use and degree of social consensus. As a result, there may be different stories (we use the word ‘stories’ to avoid indicating the linear evolution of property rights) of the transformation of extralegal tenure as elucidated in the Figure above. That said, the possible transformations of extralegal tenure should not be used to reject its nature as legitimate tenure. Long-term usage of land supported by the prevalence of this practice and social consensus should be regarded as one of the major sources of the legitimacy of property. Our research helps contextualise global concerns regarding the definition of property and establish the extent to which the measure of the legitimacy of property can be recast. More work can be done to link the global with the local. Such work includes facilitating the development of global guidelines via the study of local experience and experimenting with mechanisms to internalise global guidelines in local contexts.