Betting
on Dispossesion
--
Vasuki
Nesiah and Nanthikesan
In a compelling
critique of the Government’s ‘Land Ownership Bill’ Sarath Fernando makes the
important point that if land grants to the rural poor were freehold titles,
these lands would be soon transferred to investors and large commercial farmers[i]. In fact, this was part of the larger goal of
the government and the world-bank – the World Bank recommended removing
restrictions on title and enabling the right to place these lands on the market
as early as 1996. As Fernando indicates,
the right to alienate or sell catalyzes a range of social ills, including
widespread landlessness and unemployment, which augment socio-economic
disparities and further disempowers the rural poor. However, the government is promoting the Land Ownership Bill in
the name of enhancing freedom and expanding choices – claiming that it is
giving the poor a right to property for the first time. Yet paradoxically possession under these
conditions in the short term is likely to lead to dispossession in the long
term.
However, this
appears to be a paradox only if we equate the classical laissez faire
understanding of property ownership with the use and control of property as
such. The laissez faire model
trafficked by privatization gurus is predicated on property rights being
understood as the absolute right to exclusive possession and alienation of land
– i.e., the legal title conveying rights to exclude others from the land, and
to be able to sell that land at will. However, the history of these small holdings in Sri
Lanka indicates that the use and control of property doesn’t turn on
individualized relationship to land, but on the relationship to resource
struggles, ideological contestations, the distributive tilt of institutional
arrangements regarding access to credit and such – we’ll revisit this with
historical examples in the next few paragraphs. Thus the ‘meaning’ of alienability (i.e., the right to sell) is
mediated by this broader constellation of overlapping struggles and social
structures – not by an abstract legalism regarding title.
The absolute
notion of property informing the laissez-faire model comes from a fetishized
reading of legal rights – a reading that fails to see how ownership is mediated
by struggles over resources and meanings that take place even within the legal
terrain.[ii] Even a cursory look at the legal landscape
will suggest that property rights are best understood in relative terms – that
is, where one person’s ability to ‘control’ her property is integrally
conditioned and shaped by the extent of ‘control’ available to others.
Let us look
concretely at how this is borne out by our past experience. Those peasants who will be affected by this
bill include those who became small holders through irrigation schemes that
distributed land plots to settlers with restrictions on the right to sell[iii]. Even with restrictions on alienability,
studies of these small holdings have shown that control of land use continued
to concentrate in few hands. For
instance, field studies conducted between 1981-83 in the Kal Oya basin (H-area)
settlement of the Mahaweli Development Programme [iv]
showed considerable peasant differentiation.
These studies
noted a tendency toward concentration of land holdings through mortgage and
dispossession of holdings. Indeed,
there was increased incidence of sharecropping, leasing and mortgage
arrangements. There was marginalization
of substantial section of population, through indebtedness and increasing cost
of cultivation. Rich peasants, public
servants, and traders were able to obtain control of land through money lending
and trading activities.[v] Many factors contributed to this tendency,
including difficulties in accessing institutional credit, absence of insurance
against crop failures, difficulties in obtaining good water supply, etc. It is likely that there also were a host of
other issues that some of these studies didn’t address that may have been
relevant in mediating the ‘shape’ of ownership – from the gendered distribution
of labor in these households to the nationalist gloss that enveloped the
irrigation schemes.
All this is not
to say that legal title is irrelevant but that the meaning of legal title is
mediated by how it interfaces with other axes of ownership. The value of what we own and how we use it
is more akin to a dynamic bundle of sticks – the composition of the bundle can
shift and transform with changes in the background rules. For instance, it is significant that
notwithstanding these informal or extra-legal trends towards concentration of
land, and the many injustices that accompanied the distributive inequities that
resulted, the restrictions on the commodification of land were critical to
limiting maldistribution.
In fact, in that
same article quoted above Sarath Fernando argues that the current framework of
private ownership coupled with rules against alienation have been key to the
survival of small-scale agricultural enterprises – in effect applying the
brakes on an accelerated descent into deprivation and dispossession. This model of property ownership (control
without formal commodification) has enabled at least a minimal subsistence
based livelihood for these rural communities that stand to be affected by the
current Land Ownership Bill. As noted
above it is not entirely outside the commodity economy today but the rules
against alienation have increased transactions costs and restricted greater
fungibility of land and this has in turn deterred large agro-businesses and
such from entering this terrain and crowding out small holders[vi].
The government
of course is quite aware that allowing land to be commodified is betting on the
rural poor ‘voluntarily’ selling their land.
Undoubtedly the broader context of impoverishment such as restrictions
on credit access and such stacks the odds in favor of the government winning
its bet. Yet the Bill is peddled on
the notion that the poor are now being given an absolute right to property, and
that it is this absolute right that is giving peasants full ownership for the
first time. In contrast we would argue
that the any intervention affecting the production, regulation and distribution
of the different sticks in the property rights bundle would impact a
titleholder’s relative control over property.
For instance, the GOSL’s broader plans regarding weakening protections
for wage laborers, or undoing environmental regulations, or reducing the
corporate tax rate[vii] also
impact what small holder property title comes to ‘signify’ – materially and
ideologically. In this case, the Land
Ownership Bill is not giving the poor a right to “own” land for the first time,
but changing what it means to “own” land - from a potential means of
livelihood, land may now become a gambling chip. Moreover, it’s a gambling economy that preys on the destitute and
desperate to feed the profits of the casino owners.
Institutional Imagination: Pluralizing
Property
Opposing
privatization as per the GOSL bill does not translate into embracing state
ownership[viii]. The polarities of state vs. private
ownership may in fact prove particularly unhelpful in engendering more creative
and transformative approaches to the property landscape. In fact, communities the world over are
looking at ways in which private property can be structured to incentivize
property use while decentralizing property control. We submit that packaged deals inherited from Washington should
not crowd out radical democratic experimentalism even in the area of
privatization. To think out of the box
and explore alternative conceptions of privatization also means interrogating
the absolute property model by disaggregating the bundle of sticks naturalized
by laissez-faire ideology to allow us to recombine and reconfigure these
bundles.
Moreover, our
day to day production and regulation of property has always reconfigured this
bundle in different ways. Consider the issue of
housing and tenancy that we encounter in our daily lives. Tenancy automatically disaggregates the
property right in a residence and distributes it between landlord and tenant;
In Sri Lanka it was the case[ix]
that housing law did this in ways that stacked the odds in favor of habitation
rights rather than investment rights (i.e. a tilt in favor of tenants’ rights
rather than landlords’ rights) – just underscoring the point that rights are
never absolute, they always compete.
That competition is, in effect, a terrain for social struggle - an
opportunity to struggle against the injustices and repression inherent to how
property is produced, regulated and distributed – materially and symbolically.
While the reach
of the Washington model has produced many pre-packaged privatization deals as
reflected in the Regaining Sri Lanka vision, some countries have also sought to
experiment with alternative approaches that may not readily fit these established
models. For instance in response to a
peasant uprising with demands for greater ‘control’ over the land they till, the
Vietnamese government initiated a modest land reform in the mid eighties called
the Doi Moi reform. Before the reform,
agricultural land was owned by the state, and farmers had to belong to
cooperatives. What could be produced by
the cooperatives was determined by the State and which was the exclusive buyer. Doi Moi allowed farmers a 30 year lease on
land – not alienable- and allowed farmers set up non farm enterprises, and to
produce what they wanted and sell their produce in open market. While many justice concerns persist, these
reforms did catalyze growth with equality and a decline in rural poverty
(poverty was nearly halved over the last decade).
Rather
than taking the easy way out and giving the farmers an ‘absolute’ property
rights to secure Washington funding, Vietnam decided to experiment with
different institutional arrangements; they unbundled the property rights, and
used the thirty year lease and the right to sell the produce freely as a way to maximimize small holder control plus
incentives for productivity – including several initiatives outside of the
property law reform endeavor to enable the poor to access credit, seeds and
such.
Similarly
some alternative efforts to undo the centralization of state ownership in
Eastern Europe and elsewhere have been accompanied by efforts to resist new
forms of centralization in the private sector – so for instance public housing
complexes have been privatized not by lumping ownership and control together
(and introducing a new form of centralization in landlords) but by
disaggregating or separating out the bundle of sticks that were tied together
under the state and giving (often inalienable) rights to those most impacted by
the property (the renters, the community etc.) that jostle against the rights
of the title holder (be it a state or a corporate entity).
The
purpose of these examples is not to replace the Washington blue print with one
from Vietnam or Czechoslovakia.
Certainly, we make no claims that these other paths were without faults
or that the development initiatives addressed the needs and voices of all those
affected. Rather, what interests us
about these experiments is that they speak to the space available for
institutional experimentation - in the context of privatization debates in Sri
Lanka, we too often slip into pro-and anti privatization positions while the
important question of what type of privatization is elided. The classical absolute model of property,
and the Washington model of privatization have become so naturalized that they
have not only wrought massive social injustice, they have also crippled our
institutional imagination and curbed public dialogue about the issues at stake
in alternative paths that may be more attentive to social justice, alternative
pluralisms, and wider democratization.
The Left Imagination
In the
past we in the left have invariably defensively clung onto state ownership as
the only alternative to privatization.
In some cases this is because the state has a legitimate role that we
need to preserve to protect the most marginalized, pool resources and such. Too often, however, it is because we
abandoned our own responsibility to rethink the received orthodoxy - we just
walked into a script that narrates our options in terms of the state vs.
privatization alternatives. However, if
we are committed to economic democratization we need to open up questions that
are foreclosed by the Washington model and peddled with religious fervor by the
GOSL; economic democratization involves critically and meticulously engaging
with the stakes of alternative trajectories to reclaim the space of
institutional imagination from the GOSL – and its Washington cohorts.
For a good
part of the last century, the inherited wisdom of dominant strands of the left
was that democratizing of property relations depended on the ‘revolution’ –
i.e., on the whole scale transformation of the distribution of property. However, today, going beyond the revolution
v. reform dichotomy, we are inclined towards setting store by what the
Brazilian social theorist Roberto Unger has described as “incremental but
radical” change. Transformative impact
on these kinds of issues depend on the trajectory of counter hegemonic social
movements in addressing the material and symbolic habitus of property – but
rather than the big bang this may depend on bold local experiments that corrode
established relations of power and privilege, and enable alternative political
imaginations. In solidarity with such
struggles even “reformist” legislative efforts can make some
contributions. However, rather than the
“Land Ownership Bill”, if legislators want to address the land dilemmas of the
rural poor, then the burden of the moment is to build on these alternative
traditions of property, denaturalize the laissez faire model, and contribute to
social movements that push for marginalized communities gaining more
sustainable control over the land they live and work in.
[i]
See Articles of Note on the lines website
[ii]
Of course the legal ‘habitus’ conditioning
property should be understood as only one axes of ownership – equally, one may
draw attention to the material and symbolic life of property in other
(sometimes integrally related) realms – even the government’s Land Ownership
Bill tries to individualize property claims in ways that directly takes on the
joint family system. There are other
axes that could be relevant too: the dowry system, female wage labor outside
the home, and shifts in the gendered meanings of property ties … notions of
traditional homelands and contested nationalist claims to land… electoral
gerrymandering (See article by Kader in this issue of lines) and so on. In fact, the absolute notion of property is
itself a historically contingent notion linked to the industrial revolution in
England, the dispossession of native title in the Americas and so on.
[iii]
Each family was allotted 2.5 acres of land that cannot be sold.
[iv]
This was the first land settlement programmed under Mahaweli Project and work
towards this project commenced in 1974.
[v]
Piyasiri Wickramaseera “The Mahaweli Development Programme, Agrarian Changes
and the Peasantry”, in Capital and Peasant Production, Eds Charles Abesekera,
SSA, 1985
[vi]
This is not a critique of commodification in all
contexts but an interrogation of how the logic of commodification is
naturalized into the notions of title and property rights that drive the GOSL’s
land reform proposals. Interrogating
the language and logic of commodification and its mediation of social
relations, Marx recorded the fetishistic importance that 'money' attains under
capitalist commodifictaion: money not only "mediates my life for me, (it)
also mediates the existence of other people for me." (See p. 102 of Marx
in Tucker 1978). Marx's exposition
interrogates money as not merely the path or medium available for the
representation of some other value, but as a category that is itself
discursively produced by particular imaginative and institutional meanings of
personhood and community. For some
this elaboration of the work of commodification has meant an orientation
towards ‘community’ ownership, a valorization of the ‘social’ as an analytic
lens on property value, and a resistance to commodification. I would argue however that in fact Marx’s
point regarding the work of commodity in mediating/structuring social relations
suggests that the ‘community’ is not available as any more secure ground for
retreat; the ‘social’ is as deeply fraught and contested as a ‘lens’ through
which to criticize commodification.
Thus rather than traffic in transcendental notions of the social, or
universalized theories of the implications of commodification, in each particular
we need to critically interrogate and analyze the different ways in which the
social is produced and contested, and the implications of how commodification
interpolates struggles over resources and meanings.
[vii]
These plans are articulated in Regaining Sri Lanka. The GOSL magnum opus
regarding its economic vision.
[viii]
While in areas such as education, health care, water and such, state control may have expanded
opportunities for the poor, the state has also worked to limit those
opportunities; moreover, it invariably affected different communities
differently – as the history of state owned plantations evidences, minorities
also faced the most exploitative, intrusive and repressive face of
government.
[ix]
At least this was the case in
the past - We have to admit to being out of touch with the current legal status
quo.
