Theoretical framework

From MicroJustice

[edit] Theoretical framework.

Theoretical framework, version juli 2nd.

Chapter two: Theoretical Framework.

Introduction: In the previous chapter I wrote about the possible problems with regard to the protection of property rights in rural Bolivia. In this paragraph I would like to show why property rights are so important to humans. Next to this I think it is important to understand the most basic needs regarding the creation of a system that allows the protection of property rights and the problems that can occur when trying to create and maintain this system. I will point this out in paragraph two. In paragraph three I will continue with the lessons that can be learned from Non Governmental Organisations who have tried to improve property protection in different countries in the past.

Paragraph 1: The need for the basic human right on property. Having to the right to own property is embedded in numerous declarations and international law . The right to own property and to not be deprived of it is considered to be a fundamental human right. The fact that this right is considered to be a human rights lies within different reasons. Access to property and the right to own property and having the means to defend property is important in at least three different ways. I will discuss them briefly. Firstly, and probably most relevant to the world that the western part of the world lives in today is the economical value of property. “Secure property rights facilitate economic transactions, ensure efficient and sustainable resource use, allow for the evolution of effective credit markets, improve business climate and investment opportunities, and ensure economic accountability and transparency” . This sounds logical, because property (for instance a house in the Western world) is often the basis for a mortgage so that new businesses can be created and profits can be made. An upward spiral situation then takes shape where profits can be invested in more property and where newly acquainted property can serve the same purposes . Personally I think that there might be a risk that Bolivians do not want to take a mortgage when they have secure property rights. The argument that secure property will lead to the availability of mortgages does not mean that Bolivians will actually use this possibility and therefore develop economically. But at least the chance on the possibility of getting a mortgage will be bigger. Secondly, adequate property protection can allow things that do not need changing to stay the way they are. Property rights and access to these rights can therefore prevent conflicts regarding usurpation or plain theft of property. When stronger parties know the value of property there will be a big risk of conflict if the weaker parties are unable to protect their own property by legal or other means. I will return to this subject later, but land can be of symbolic importance to someone. Especially in this situation the ‘victim’ is less likely to move his assets to a different stretch of land because of his principles, there will be a large risk of conflict. Usurpation of ground used for agriculture in small communities might be stopped when the victims of these actions have the means to legally protect that what should be regarded as their property. Law and rule enforcement should afterwards serve the weak to minimize differences in power. A good system for property protection can therefore give peace and stability to a region where the use of land is important. Finally, the right to property itself is very important because property can contain emotional value to someone. A house or a farm for example, in which generations of the same family have lived can carry this emotional value. Getting deprived of this property might barely be a loss of economic capital but it can do a lot of emotional damage.

This paragraph in short: As shown above, property can create additional economical assets when there is a good system regarding the protection of property. The advantages of legal property protection might be found through the entire legal system when increased income can be used to hire lawyers and solve different judicial problems more easily. Increased stability in a region can serve as a foundation for more reflection on the status of a region with multiple parties.

Paragraph 2: How should a system be built in order to offer decent legal property rights protection? There is no way to determine a legal property protection system that can be imported into every legal system all over the world. Countries, cultures and people are by itself so diverse that each legal system needs its own additions. For example: The distance alone between legal communities in Bolivia create a complete new challenge to a legal system when these are compared to the distances you can travel in the Netherlands. Next to this example there may be tribes who choose to live by their own rules which function perfectly, until their is a conflict about property with someone not belonging to this tribe, not respecting the tribes’ rules. A number of crucial elements can be discovered in each good functioning legal property system however. Maybe better said, is that a number of crucial mistakes are often made in dysfunctioning property systems . I will sum it all up in the next section of this paragraph.

It seems very obvious that there has to be one set of nationally applied rules made about how to deal with disputes regarding property. These rules will also have to be enforced by courts or other dispute solvers which all use the same processes. This might look like stating the obvious, but with numerous tribes and incredible distances in one country (read: one legal system) it poses an enormous challenge. Rules can be made by a government. Rules can be executed by a government. But rules are useless when the daily practices of farmers in disputes are not in line with the official rules and procedures. Rules only work properly when they are accepted and generally applied. They will be accepted and generally applied if they for fill in the need that the subjects of the rules have, if they are in line with their expectations of good and fair rules. Therefore, it would be better to form a judicial system, based on the system that is used (this might be unwritten) by the biggest part of the population for example. Importing western rules into Bolivia is most probably useless. Cultures, traditions and norms are so different that Bolivians will not accept these different norms.

The government has to be willing to be very effective in forming a system and executing it. They should process who owns what property in a transparent way, so that everyone can verify whether a stretch of land is already owned or used by somebody else. A system in which is laid down who owns what is regarded as crucial. In the Netherlands we use a cadastre to register the property of ground, houses, airplanes and many other properties. The Dutch system is very transparent, and it does not take a lot of time to find out who the owner is (if there is an owner) of a certain object. This transparency is important as well. This way, the system becomes more effective and opportunities for gathering or selling properties for example, will increase. Campaigns for the people in combination with legal advice might also help in empowering the weak to protect their property, because they might think they have a weak legal position when this is not true at all. The Microjustice organisation regards transparency as one of the most functional ways in order to improve the justice system in total . But also on the terrain of property rights with regard to registrations it can be very important.

Modern technologies such as computers in combination with a GPS system can help with creating a transparent, fully functional registration system while other registration systems are often labor intensive. Next to this, computers that could be stationed in public buildings with all available information about the registration of the land in the region can provide even more transparency .

It is clear that the government has a vital role in improving the property system in its country. Therefore the government has the power to make changes in rule settings and in executing (enforcing) these rules. When this power is used in a fair way there is no problem, but misuse of government power can make a system that flourishes corrupt. This might prove to be dangerous to the weak in a very short period. Especially in a country that is so vast as Bolivia, there might be only little control of government officials at the lower levels of the government. Who will check whether they execute their jobs without taking gifts from civilians to see something through the fingers or strictly enforcing the rules when dealing with a certain individual? A strict system of checks and balances from the top to the bottom of the government will have to exist. Next to this a check on the higher levels of government could be done by an independent office, such as a supreme court.

A good system of legal property protection allows for the exchange of goods and economic development. Looking through the eyes of a European person this is a theory that can easily be understood. Further research will have to point out however, if a Bolivian farmer can (morally) sell his ground because the ground might be considered as common good of the entire village or tribe.

Not only property should be protected but also the rights of those who actually use the ground, under a yearly fee for instance (land tenure). Improving rights of the owners of property might for this reason not be the solution for solving problems with regard to the protection of the right on property of the poor (and these people often need this protection the most). Therefore the right to own property itself should not only be protected, but also the different contracts (or relations of other people with this property) that rely on the property being available. I will now further discuss what we call ‘our property’, and what is the legal status of this property might be.

In the Netherlands we normally mean with owning property (in the form of land) that a stretch of land belongs to the owner and this owner can within the law do whatever he likes to do with this land. Usually, among the options there is using the land for agriculture, selling the land and building on the land. It would be logical to think that somebody that is not the owner of the property does not have these rights at all. It would however be too superficial to only make a distinction between owning property or not owning property. There is a number of steps with regard to what you can do with for instance a stretch of land (or any property). When somebody owns the land (if it is your property) he can do the most things with the land. But below the judicial term of 'owning' there are ways to use the land while not being the owner. Directly below the full ownership there are situations where people can access and use property as if he were the owner: selling is not an option, but exploiting the land for agricultural purposes can be one. This type of using property is often called land tenure. As explained above: it is a form of rent. Below the form of land tenure (with almost all the rights that an owner would have) there can be numerous different relations that someone can have with the real owner of the property. It is even possible that an owner has different contracts with more people regarding the use of only one stretch of land. These persons can use the land, but they will probably have to share certain things with each other, so this does not look like ownership at all. The point is, that not only the judicial owners are struck when the legal system fails to protect their property. People related to this property are perhaps hit even harder when the owner loses his property because they actually use the land for agriculture or to have an income. Next to this the ‘renters’ need to be able to rely on the agreements with the owner of the land, so the renters of property will (in a functional system) have to be judicially able to rely on a contract they have with the owner of the property. Next to this the contracts need to be equitable. A good tenure system is a system that is equitable and where renters can rely on the judicial system, or a system in which there a dispute system is mitigated in.

Paragraph 3: What does history tell us about the way we can achieve better property protection in regions where Non Governmental Organisations have been active on this terrain? Because the right to own property is worldwide regarded as very important, -but disrespected by a handful of powerful players in a big part of the world- , there have been different Non Governmental Organizations (NGO’s) active on this terrain. A brief look at the lessons learned from these projects might give valuable information on how to approach problems regarding property, and what not to do.

Registering and creating a working system In paragraph two we have already seen that there has to be a clear system in which can be written down what property belongs to whom. Different projects started by NGO’s have therefore focused on registering land on different scales. These projects were very promising in the beginning, but research a few year later showed that these new registers were not being held up to date so they would become less useful as time would go by. A lesson learned from this was that the registers would have to be made, land would have to be measured. But most importantly, that these actions would have to be continued from that moment. People should actually start to use and update the system for land registration, which in this case, was not fully functional.

Effects of land reforms In Latin-America there have been land reforms in the past . In land reforms, large landholders (or the state) are often expropriated of their land. This land is then divided amongst many others, mainly poor original inhabitants of the certain region where the land is. The most important lesson learned from land reforms in Latin-America was that the land reforms were there on a large scale, but that the means for the beneficiaries of the land reform have never been there. They could not compete in trading with the stronger parties not effected by the land reforms in other parts of the country. Therefore the situation did not get better economically (it became even worse) resulting in a new dependency on large landholders. Also, land reform procedures often take a very long time and are not always completed (due to changed political situations). Property rights are then left insecure which could lead to a counter reform, leaving the beneficiaries even weaker than they were before the initial land reform.

It can be seen as a noble action from state governments to expropriate large landholders for the benefit of local inhabitants who will get their equal share of the property. Although this action might work in some countries, history has also shown us that this is a risky strategy : • (former) Large landholders who are often left uncompensated will seek for conflict. • The division of enterprises and the destruction of these enterprises (farming) will lead to more economic instability. • Bigger companies have often got a higher productivity. Division of land will not always lead to higher incomes and stability.

The expropriation strategy might work, when the large landholders are compensated for the losses, and when the new owners of the land can be supported in creating a fully functional economic market by giving grants, credit or technical support. The new owners of the land will also have to be supported in creating the means that are necessary to maintain a stable property protection system (see paragraph two). Most of these measures cost money however, so this might not be a solution for a third world country .

Dispute resolution outside the courts It is certain that there will be competing claims over land in time. The dispute system with regard to registrations and especially competing claims will need to be effective. History has shown us, that many types of land disputes are best managed outside the courts. Courts are often limited in their capacity, and they might prove to be inaccessible for the poor .

Intervention in particular areas Where they is property and no strong will to solve problems in courts but protection by physical means threw will be conflict with regard to property. It is important to understand the different reasons for problems with regard to property. These particular reasons in the area have to be charted and only then an intervention on one specific area should be made: create sectors and then intervene .