Conceptual Foundations of Property Rights: Rethinking De Facto Rural Open Access to Common-Pool Resources in Ethiopia

Author:Elias N. Stebek
Position:(LL.B, LL.M, PhD. Candidate), Asst. Professor; Dean, St. Mary's University College Faculty of Law.
Pages:1-40
SUMMARY

This article, inter alia, attempts to highlight some major concepts and theories on property and the rationales and elements of property rights. It also briefly deals with the distinction between property rights on the stock of resources and its flows, and indicates the downsides of open access in the efficient utilization and sustainability of common-pool resources. Where de jure public property ... (see full summary)

 
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CONCEPTUAL FOUNDATIONS OF PROPERTY
RIGHTS:
RETHINKING DE FACTO RURAL OPEN ACCESS TO COMMON-POOL
RESOURCES IN ETHIOPIA
Elias N. Stebek
Abstract
This article, inter alia, attempts to highlight some major concepts and theories
on property and the rationales and elements of property rights. It also briefly
deals with the distinction between property rights on the stock of resources and
its flows, and indicates the downsides of open access in the efficient utilization
and sustainability of common-pool resources. Where de jure public property
becomes de facto open access, certain common-pool resources in the rural areas
of Ethiopia (such as forests) are exposed to encroachment, unlawful logging
and overgrazing. The article attempts to show that it is usually impossible to
effectively exclude persons from the use and overconsumption of common-
pool resources in Ethiopia in the absence of well-defined and effectively
implemented public property regime, or unless the property rights of
indigenous communities and collectives such as peasant associations are duly
recognized and clearly defined so that the right holders can have vested interest
in the preservation, protection and development of these resources.
Key words:
Property rights, rural open-access, common property, public property,
common-pool resources, Ethiopia.
_____________
Introduction
According to Article 40(3) of the Constitution of the Federal Democratic
Republic of Ethiopia, “the right to ownership of rural and urban land, as well as
natural resources is exclusively vested in the State and in the peoples of
Ethiopia” and “shall not be subject to sale or to other means of exchange.” One
of the fundamental issues that can be raised in relation to public property of
rural land and natural resources is whether it has the impact of open access to a
significant part of these resources. Addressing this issue is essential because
publicly owned resources can be susceptible to de facto open access where the
(LL.B, LL.M, PhD. Candidate), Asst. Professor; Dean, St. Mary’s University
College Faculty of Law.
2 MIZAN LAW REVIEW Vol. 5 No.1, Spring 2011
law either does not adequately recognize the collective land rights of
communities (who traditionally claim customary exclusive rights) or peasant
associations, or where it becomes unable to effectively control access or exclude
withdrawals of resources (such as trees).
Sections 1 and 2 deal with the emergence of property and highlight some
theories including Hobbesian, Lockean and Marxist conceptions of property.
Section 3 briefly discusses the rationales, categories and key attributes of
property rights. It highlights the range of entitlements to property rights in
relation to access, withdrawal, management, exclusion and alienation. The
section also briefly presents the elements of assurance, duration and breadth as
attributes of property rights. Section 4 deals with the distinction between
property rights on the stock of resources and its flows, and it briefly addresses
the risk of overconsumption in common-pool resources with particular attention
to the tragedy of the commons, the downsides of open access and the modes of
ownership that are in tune with the efficient utilization and sustainability of
different types of common-pool resources. And finally, Section 5 discusses the
necessity of rethinking whether a significant part of publicly owned resources in
rural Ethiopia have become open access.
1. Social Evolution and First Appropriation as Sources of
Property
Finnis notes that title deeds were not attached to land and other focal instances
of property1 when these resources came to existence. The notion of property was
attached to these resources in the course of socio-economic evolution. Pre-
modern conceptions of property were predominantly communitarian and they
were influenced by the custom and values that prevailed for many generations.
The notion of land ownership was unknown to earlier human societies of
hunter-gatherers. In light of the sparse population and abundance of resources,
“no individual could possibly care much for any particular spot of ground”.2
Hunters needed extensive areas for their means of subsistence which can now be
considered as “large enough [for the subsistence of] many thousand
agriculturalists”.3
As hunter-gatherers gradually started domestication of animals, and
eventually “became shepherds feeding herds which they had previously tamed”
1 John Finnis (1980), “Natural Law and Natural Rights” at 187 n. 30. (in Gary Chartier,
2009, Economic Justice and Natural Law (Cambridge University Press), p. 32.
2 Thomas Hodgskin (1832), Natural and Artificial Right to Property Contrasted
(Republished by Augustus M. Kelley. Publishers, Clifton, 1973), p. 64
3 Ibid.
CONCEPTUAL FOUNDATIONS OF PROPERTY RIGHTS: RETHINKING DEFACTO RURAL OPEN ACCESS 3
they still needed “extensive territories, though not equal to those required by the
hunters”.4 After the emergence of agriculture, however, “a comparatively small
space sufficed to supply each one with the means of subsistence”, and it is
mainly after this period that people “fixed their habitations, and around them
fixed landmarks, each one appropriating as much land” as was necessary to
“supply his family with food.”5
The acquisition of land in Europe until the downfall of the Roman Empire,
for example, was limited to the needs of the family and the ability to cultivate
until the Empire’s northern conquerors introduced their pre-agricultural “habits
of life” to land appropriation. Even if agriculture continued in the Roman
Empire, the new rulers kept their habits of having herds of cattle and swine. As
“each chief required a large space to supply himself and his family and followers
with food,” land was appropriated “not according to what quantity each man
could dig by his hand, but rather according to the quantity his horse could gallop
around”.6
Various views are forwarded regarding why and how property rights in land
emerged. The major views include the factor of efficiency (and transaction cost)
and the principle of first appropriation.
1.1- Factors of efficiency and transaction cost in the genesis of
property
Demsetz discusses the impact of commercial fur trade in the indigenous
communities of North America and he states that exclusive property rights
emerged owing to the adverse impact of overhunting under the setting of open
access. Under such circumstances, there is the need for well-defined rights with
regard to access, use, control, withdrawal and alienation along with the
subsequent duties of protection and development of the resources.
Demsetz7 states the absence of private ownership in land in various
communities which hunted for food. In these communities, the same act of
hunting by others (i.e. externalities) does not affect the needs of every member
of a community to hunt for subsistence as long as the resources are abundant
and other variables remain unchanged. Demsetz used the studies conducted in
North American communities for his analysis. He observes that after the
emergence of commercial fur, there was an increase in the value of furs which
4 Ibid.
5 Ibid, p. 65.
6 Ibid, p. 71, for the quotes in the paragraph.
7 Harold Demsetz (1967), “Toward a Theory of Property Rights”, The American
Economic Review, Vol. 57, No. 2, Papers and Proceedings of the Seventy-ninth
Annual Meeting of the American Economic Association. (May, 1967), pp. 347-359.

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