Over the last several years, there has been a growing recognition of the significance that land reform can have on a woman’s life in the developing world, particularly in terms of economic empowerment. This article will briefly explore some of the distributional and efficiency implications of formal and customary arrangements, arguing that while formal property arrangements have the greatest potential for enhancing a woman’s economic standard of living, they can often ignore the social and cultural web of interests.
Formal and Customary Arrangements: Characterization
Formal property rights arrangements can broadly be construed as creating more exclusive forms of ownership of a resource through processes of adjudication and registration. Alternatively, customary property arrangements refer to forms of land management based on custom. This type of arrangement is often perceived as ‘traditional’ or ‘ancient,’ deriving from the past, though it should be noted that field studies have demonstrated that local landholding systems are not so rigid. In fact, they are often flexible and evolve in accordance with the logic of customary law, whereby rights are negotiated with the authorities on the basis of a number of shared principles. Though the distinction between these two sets of arrangements used to be quite clear, the former being regarded as statutorily protected, over the last few years this distinction has become blurred where there has been increasing formal legal recognition to customary rights, especially in Africa.
Defenders of formal property arrangements argue that the quality of property rights depends on definition and enforcement. The greater the definition and enforcement, the better the property claims. The argument is that the formalization processes helps facilitate rights, economic efficiency and equity. Perhaps one of the strongest advocates for such an approach to women’s land rights is Bina Agarwal, Professor of Economics at the University of Delhi. In support of her view of the need to enhance women’s land rights, she puts forward three arguments based on welfare, efficiency and equality.
1. Welfare: Direct benefits can flow from growing crops or trees and indirect often times stems from the land serving as collateral for credit or as a mortgageable asset during times of crisis.
2. Efficiency: Production inefficiency associated with insecure land tenure is one of the most significant rationales for formal land processes. Women who have secure land rights are increasingly motivated to put in greater effort and investment in the land; have improved their access to credit; might use resources and manage the farms more efficiently than men; and be empowered to negotiate in government schemes and in infrastructure and services.
3. Equality and empowerment: Access to land rights increases a woman’s ability to challenge systemic gender relations in multiple environments such as the home and community.
In short, land rights give women the means to negotiate on a level playing field.
Unlike many mainstream development initiatives, which are beginning to recognize the role that customary laws can play, Agarwal seems to suggest that customary laws do little more than reinforce gender biases in the name of family stability, an interest she would argue that should not be protected so long as it is grounded in gender inequality.
These arguments against customary arrangements and in favour of formalization processes challenge mainstream United Nations and World Bank development strategies, which focus on localizing land administration. But are ‘clear’ and ‘strong’ property regimes without flaws, specifically when it comes to women’s land rights?
From a welfare and equality perspective, formalization processes often have the tendency to exclude legitimate users of the resource and can contribute to further conflict and erosion of social relationships and institutions. David Kennedy, who challenges the ways in which property rights have been viewed, shares this perspective. He recognizes that the arrangement of property entitlements is inseparable from concerns about the social web of interests: “The arrangement of entitlements also constitutes the actors and defines the rules of the game, allocating bargaining power, determining who can do what with which resources and what rents can be captured by what means.”
In terms of efficiency, because of overlapping interests, registering land under a single ‘owner’ can in fact contribute to economic vulnerabilities. Often times, under customary arrangements, agricultural land is used for multiple purposes which acts as an important check against over concentration of livestock, reducing the likelihood of pasture decline, and improving the likelihood of pasture recovery. Unlike formalization processes which tend to give the entirety of the ‘bundle of rights’ to a single individual, communal or traditional-based tenure systems with overlapping interests in the resource accommodate these multiple uses and often serve ecological functions.
In assessing the distributional and efficiency implications of formal and customary arrangements from the standpoint of women’s rights to land, a consensus seems to emerge. While there are strong welfare, efficiency and equality arguments in favour of formalization processes, these seem to come at the expense of social and cultural stability. The literature seems to place the debate within a zero-sum game in which efficiency and equality are won or lost at the expense of familial and village social relations. While most of the literature seems to separate these two concepts, property rights only exist insofar as they are socially validated. A constitution that secures a woman’s access to legal property is in practice futile if her husband does not recognize the right, if the bank will not acknowledge the land as a mortgageable asset or if her community alienates her for asserting such a claim.
In the future, there should be an increased focus on how to adequately merge these two separate but fundamental needs within a property arrangement. Though there is not enough evidence to reach a firm conclusion on the issue, it should be noted that any arrangement that ignores the social and cultural web of interests is likely to fail or at least make matters worse before they get better when it comes to improving the lives of women.