Changing Notions Regarding Property in Land
The need for the institution of property in order to guarantee
smooth processes in the economy and society is hardly disputed
and, therefore, has a constitutional rank in most countries.
On the other hand, the question of the pros and cons of private
property in land has been the subject of long-lasting discussions.
The debate has become more intense recently. The reason for
the development are the changes that have taken place socialistic
countries which widely discuss, but only rarely introduce
private property in land. In regions in which communal rights
in land still exist, the elite in particular request the introduction
of private property in land, and the request is not unsuccessful,
although with all likelihood to the detriment of the backward
sections of the society. The discussion was always accompanied
by strong ideological undertones and still is today.
The intention here is not to join in the argument in favour
or against private property in land. The focus here will be
on the historical development of the notion of property in
land in order to understand the changes that have taken place
over the last 50 years and put them in perspective. (7)
From an historical perspective, private property in land
is a rather recent concept. Originally , tribes exercised
control over the area they had taken possession of by the
right of a conqueror. Land was space and territory, available
in abundance and of no social relevance. The tribes allotted
land for cultivation to the individual families to give them
a basis for their subsistence. Whoever cleared a piece of
land allotted to him gained the right to use the land permanently,
but only as long as it was actually cultivated. If it was
abandoned, the power of disposition reverted to the tribe.
In some parts of the world in the course of time, the need
for mutual help and increased population led to the formation
of villages which assumed the right to regulate the land in
The land assigned to the individual families was not property.
Land was regarded as a commodity, available to all to be used
under the condition that the interests of the community were
duly taken into consideration.
Primarily to meet the needs of defence, authority became
concentrated in the course of time and states were formed
in many regions with a ruler as their head. These rulers controlled
the land on behalf of the group in various ways.
It was not long before taxes were introduced to cover the
costs of governing, usually a share of the yield in grain.
The right of the king was limited to this share of the yield
and did not include rights to the land and its utilization.
However, as the custodian of the people, he was entitled to
the uncultivated land lying between the villages. Soon a need
arose for a hierarchy among officials to collect taxes. This
led to a new system, i.e., land was allocated as a form of
remuneration for services rendered. Again, this transfer pertained
only to the right to use the land which could be leased to
In the beginning, the ruler was a sort of custodian for
the state and the people, but as there was no clear separation
between the state’s and the ruler’s rights. His
rights already resembled property. This superior right was
inheritable, could be restrictedly transferred and leased
Hence, if there was anything like property in land in feudal
societies, it was semi-property that belonged to the ruler
and the nobility. The fact that the political power and control
of the land was combined in the hands of the elite perpetuated
this situation for a long time because it was in their interest.
During the feudalistic period, the nobility received land
grants from the ruler in return for their commitment to provide
military services and deliver commodities. At a later period
still, government on the basis of the instrument of land went
through a transition to become government by those who held
land, i.e., the nobility.
Absolute property rights in land with respect to the actual
cultivator are a much more recent phenomenon, following the
emergence of centralized states: in Germany during the first
half of the 19th century, in France during Napoleon’s
time and in England at an earlier date. The European colonies
followed suit. Lord Cornwallis introduced private property
in land in India with his Permanent Settlement in 1793, while
the Japanese occupation brought it to Korea first in 1910.
The British concept of fee simple was the most complete
bundle of rights in property in land, restricted only by the
crown’s tax privileges. Hence, in the beginning, the
fee simple gave the landowner great autonomy, i.e., the right
- use the land,
- make a profit,
- improve the land,
- not to improve the land,
- benefit from development,
- sell or bequeath the land to others, or
- use it as collateral,
etc., as long as the rights of others were not infringed upon.
Soon, however, land in the form of property became more
and more restricted by custom and private or public laws.
The state found it easier to intervene after private ownership
rights had been transferred to the cultivators and no longer
rested solely in the hands of the elite. At the same time,
the need to intervene increased as a result of population
growth. industrialization and urbanization.
The restriction of absolute powers on the part of the owner
began with the need to regulate urban development. Planning
streets and railways and drainage and sewerage and protection
against fires and pollution of the atmosphere were areas in
which public interest intervened in the decision-making power
of the landowner.
This was an important step in the development of the notion
of property in land. It was the introduction of the concept
that landownership and land use have a social function. Ownership
from that point on was exclusive, but not absolute. Furthermore,
in the course of time the landowner’s rights became
restricted to surface rights, while other rights such as mining
and water rights were separated and frequently transferred
to the hands of the state as state rights.
Financially, the state restricted the owner’s rights
in the course of time not only by means of the old land tax,
but by means of other taxes and fees in order to at least
partially recover the expenses of maintaining private property,
i.e., by establishing land registers, land evaluation, land
The intervening increased continually, at first mainly with
respect to urban land in the form of
- the right to compulsory acquisition in public interest,
- the imposition of restrictions in land use,
- the introduction of licenses for certain forms of use
- land use planning.
While these measures also already affected agricultural
land in part – mainly in the areas near the cities –
a number of other regulations affected primarily agricultural
land and intervened in the disposition rights of the agriculturists.
The goal of a number of regulations was to assure optimal
use of the land for production – especially during times
of war – such as
- compulsory cultivation,
- restrictions forbidding the cultivation of inappropriate
- compulsory cultivation of certain crops.
Following the end of World War II, radical land reforms
intervened in the established rights of landowners in some
countries such as Russia, Mexico and Ireland.
Elsewhere in the world, the conservation of the existing
conditions and the improvement of the agrarian structure and
framework conditions served as a justification for intervening
in the rights of landowners. These measures included:
- the regulation of legal categories of holdings,
- the regulation of tenancy,
- the regulation of inheritance,
- the regulation of indebtedness
- settlement laws,
- land transfer laws,
- land consolidation laws,
- land reform laws,
- social legislation respecting the agricultural population
- regulations concerning the maximum and minimum size of
While some of these measures were never enforced very strictly,
many others signified a strong emphasis of the social function
of private property in land at the cost of the owners’
Towards the end of this century, we are experiencing another
step in the intervention in the private landowner’s
property rights. This is a consequence of the increasing concern
with respect to the environment which led to the recognition
of an ecological function of land in the form of private property.
Examples of the intervening measures are:
• limitations in the use of chemicals,
• limitations in the number of animals,
• limitation in crop cultivation and produce acceptance,
• limitations in liquid manure emissions,
• environmental protection and
• regulations pertaining to water-catchment areas.
In the interest of the public, they all restrict part of
the bundle of rights which form property. It is of great relevance
that this development is taking place at a time when the agricultural
society is becoming an ever decreasing part of the society
at large. Land is much less important today as a basis of
the economic existence of a society; however, its relevance
with respect to the non-economic aspects of life has become
all the more significant. We are presently experiencing the
same development at the individual level. Will land play much
of a role in the future regarding income generation if the
agricultural population continues to decrease and the share
of the factor contribution of the land to the created food
value keeps shrinking?
This process will continue and probably increase. It has
already progressed to quite an extent in some countries, and
in others it will follow suit. It is a generally accepted
truth today that no generation has a freehold on the earth,
but rather only a life’s tenancy with a full repairing
and renewing lease. (8)
The next step in the continuing process limiting the landowners’
rights is already approaching. Until now, horizontal and vertical
integration took decision-making rights out of the hands of
the farmers only in the case of specific branches of the farm
such as hog fattening, tobacco cultivation etc. The fact that
their incomes were often higher made this development bearable
for the farmer. But today, we are experiencing a concentration
of bio-technology companies into large corporations which
include seed breeding, the production of chemicals, veterinary
services, storage and wholesale all in one hand. It is not
unlikely that in the end these food chains decide what animals
and crops are to be produced, by whom and in which way. In
all probability the final outcome will be an expansion of
contract farming under the control of these big corporations,
and the farmer that owns land might become little more than
the janitor of his own farm – to use a phrase taken
from an important newspaper (9).
Our brief historical oversight has show that there is great
variation today among the countries as to the real meaning
of private property in land. One has to look at the constitution
and the relevant laws of each country in order to define what
private property in land means in that country.
But the concept of private property has been emptied more
and more, sometimes to such an extent that in the end there
is not much more left than strong rights of use. Is this a
process taking back a development which gave, despite all
its positive aspects, too much to the individual, and this
in the case of a factor in short supply?
Under this circumstance, it seems increasingly useless to
speak of a dichotomy consisting of ownership versus rights
of use, as usually done in the discussion. It makes more sense
to think of a continuum with private property (fee simple)
at the one end, and strong inheritable and transferable long-term
rights of use at the other. The laws of each country tell
where at a certain time the country can be found along the
If this fact is accepted, the issue of pros and cons regarding
private property in land can be discussed less ideologically
and with more attention paid to the history of the individual
countries, the values of the people and the socio-economic
changes expected in the near future.
7) Ofori, Isaak M., Changing Concepts of Land Ownership
and the Emergent Patterns of Urban Settlements in the 21st
Century. Paper, 13th International EAROPH Congress, 14 –
18 Septemeger 1992, Kuala Lumpur, Malaisia.
Bromley, Daniel W. “The Social Construct of Lnd,”
in: Konrad Hagedorn (ed.), Insitituioneller Wandel und politische
Ökonomie von Landwirtschaft und Agrarpolitik. Frankfurt
am Main 1996, pp. 21 – 45.
8) Porritt, Jonathon, “A Full Repairing Lease on Planet
Earth,” in: Kolbert, Colin (ed.) The Idea of Property
in History and Modern Times, London 1997.
9) Kuchenbuch, Peter, Gefesselt von der Nahrungskette, Die
Zeit, No. 28/1998, 7/2/1998, p. 26.