Customary Law and Communal Property in South Africa

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.

Community Rights in Scots Property Law

Since the establishment of the Scottish Parliament by the Scotland Act 1998, Scottish legislators have embarked on a programme of community-oriented land reform to allow for redistribution of land to communities. Eligible community bodies have rights of acquisition of varying strengths under the Land Reform (Scotland) Act 2003, and will soon benefit from a further suite of rights as a result of the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016. The community approach that has been introduced to Scotland makes Scots law an interesting comparator for other land law regimes. This chapter explains the background to, the operation of and the future scope of such community rights in Scots property law.

The Legal Status of Customary Land Tenure Systems and the Protection of Communal Property in Cameroon

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.

Commons Governance, Normative Pluralism and the Enduring Role of Custom

The governance of common land in England and Wales is shaped by a mixture of customary and legal norms that can shift and change. Notwithstanding the introduction of legislation for the registration of common land and common rights, custom retains an important role in the governance of common land. This chapter situates custom alongside the other normative rules used to structure the governance of common land. It considers reforms introduced by the Commons Act 2006, including provision for the formation of self-regulating commons councils. It concludes that a legal pluralist analysis that focuses on the functionality of differing customary and legal norms, but which is also sensitive to the sources from which rules derive normativity, is essential if we are to position custom in the hierarchy of norms relevant to the governance of common land, to understand their respective roles and how these can change over time and space, and to appraise their effectiveness.

Taking Stock of Italian Commons: Un-Common Grounds?

This chapter provides a critical mapping of Italian commons, investigating the conceptualisation of property on both traditional commons (agricultural common land) and new commons (commoning projects and practices fighting neoliberal policies and laws). The key aim is to understand how traditional and new commons define and re-define property through law, customary practices and social movements and if there are similarities or differences between the two. Although both traditional and new commons attempt to transcend the public-state/private-individual dichotomy in property law and are permeated by a sustainability ethos, the differences between traditional commons and new commons are conspicuous, rendering impossible the transfer of legal concepts from one category to the other. Such differences relate to the substantive and procedural property rights of the actors involved and to their relationship with constitutional principles.

Ownership and Belonging in Urban Green Space

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.

Water: A Common Treasury

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.

Understanding Collective Property in the Chinese Context through the Lens of Community

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.

Property in the Kibbutz: Old and New

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.

Introduction

This Introduction is divided into three sections. The first section sets out the context, significance and themes of this volume. The second section reviews the spread and potential reach of communal property, exploring the eclectic mix of institutions, resources and patterns of resource use and management which can be brought under the ‘communal property’ banner. The third section emphasises the importance of examining the nature of communities and highlights the possibilities and challenges of vesting the power of governing communal resources in communities.