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.
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.