‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00632.x |
| Author | Robert Home |
| Date | 01 September 2013 |
| Published date | 01 September 2013 |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 3, SEPTEMBER 2013
ISSN: 0263-323X, pp. 403±19
`Culturally Unsuited to Property Rights?': Colonial Land
Laws and African Societies
Robert Home*
Hernando de Soto, advocate of central registers of land rights, raised
the possibility of Africans being culturally unsuited to property rights.
This article argues that sub-Saharan Africa's high proportion of tribal/
communal land (as distinguished from private and public/state land)
results from a combination of geography, history, and population
distribution. External colonial rule created a dual system of land
tenure that restrained private property rights in the tribal/communal
land areas. The research draws upon archival evidence from the
colonial land tenure panel chaired by Lord Hailey (1945±50). The
finding is not that Africans are inherently culturally unsuited to
property ownership, but that colonialism reinforced pluralistic forms
of property rights, which create particular challenges to land law
reform.
`ARE AFRICANS CULTURALLY UNSUITED TO PROPERTY RIGHTS
AND THE RULE OF LAW?'
This was the challenging question posed in the title of an essay by Hernando
de Soto, the leading writer on property rights and legal empowerment of the
poor.
1
De Soto cites the assertion that African societies are `steeped in
traditional cultures and are unsuited to market-oriented development'. While
his essay, drawing upon his work in Tanzania, goes on to reject the assertion,
the question in the title is worth further exploration in its own right, because
403
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Anglia Ruskin University, Bishop Hall Lane, Chelmsford, Essex CM1 1SQ,
England
robert.home@anglia.ac.uk
1 H. de Soto, `Are Africans Culturally Unsuited to Property Rights and the Rule of
Law? Some Reflections Based on the Tanzanian Case' in Rights and Legal
Empowerment in Eradicating Poverty, ed. D. Banik (2008).
of de Soto's eminence in the global discourse around property rights, and the
considerable resources committed to land titling programmes. Africa is the
world's second-largest and second-most-populous continent, containing a
fifth of the planet's total land area, with a human population of about one
billion, which makes the investigation significant.
2
Africa (at least sub-Saharan Africa) has the highest proportion of tribal/
communal land, as distinguished from private and public/state land, of any
continent. This can be attributed to a combination of geography, history, and
population distribution, and was reinforced by a history of external colonial
rule, which created a dual system of land tenure that restrained private
property rights in the tribal/communal land areas. This article argues, not
that Africans are inherently culturally unsuited to property ownership but,
rather, that colonialism resulted in pluralistic forms of property rights, which
has created particular challenges for land tenure reform.
The articles focuses upon the former British colonies of West, East,
South, and Central Africa, which represented the largest share (abut 40 per
cent by land area) in the European countries' `scramble for Africa' after
1885. British methods of colonial management were based on their experi-
ence in India and the Middle East, drawing upon the much older imperial
powers who had preceded them in the Mogul and Ottomans respectively. Of
particular relevance to property rights are British land policies deriving from
their ideology of indirect rule and the dual mandate, associated with Lord
Lugard and the so-called trusteeship principle.
The article first explores what might be distinctive about African pre-
colonial societies' attitudes to land, drawing upon research in social anthro-
pology. This discipline established itself largely from studies undertaken in
sub-Saharan Africa, often commissioned as a form of intelligence-gathering
in the `native reserves'.
3
These tended to see African society as static and
fixed, and drew upon structural-functionalist theory in social anthropology,
which confirmed that view. Much of this work was brought together by Lord
Hailey's Colonial Land Tenure Advisory Panel in 1945±51, a significant
source hitherto neglected by researchers, and its minutes, together with other
Colonial Office files in the United Kingdom National Archives (NA Kew),
offer a valuable record of British colonial land policy in Africa. Recording
property rights in a comprehensive state-controlled land registry, as discussed
by its advocates in Hailey's panel, was an approach which derived from
British colonial management in the Middle East, and predates Hernando de
Soto and World Bank land titling programmes by half a century.
Thus the legal history of the colonial engagement with land is key to
answering de Soto's question. After a century of dramatic change in Africa,
which saw the arrival and departure of European `colonial masters' over
404
2 UNDESA, World Population Prospects (2010).
3 For the relationship between anthropology and colonialism, see W.D. Hammond-
Tooke, Imperfect Interpreters (1997).
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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