Compensation Theories and Expropriation of Customary Property Rights

We address a debate over the effects of private versus customary property rights on external investment. Despite political economists’ claims that external investors favor private property rights, other experts argue that customary systems enable large-scale “land grabs.” We organize these competing claims, highlighting trade-offs due to differences in legibility versus the ability to displace existing landholders under both systems. We study a natural experiment in Liberia, where law codifies parallel private and customary property rights systems. We use this institutional boundary and difference-in-differences methods to isolate differential changes in external investment under the different property rights systems following the global food crisis of 2007–08. We find a larger increase in land clearing where private property rights prevailed, with such clearing related to more concession activity. Qualitative study of a palm oil concession reveals challenges external investors confront when navigating customary systems.

Land disputes were a serious and recurring problem in Indonesia's Nucleus Estate and Smallholders (NES/'PIR') program between 1977 and 2001. While many of these disputes arose during President Suharto's 'New Order' regime (1966-1998) a large number remain unresolved and are a continued source of tension and conflict in some communities. Explanations of the causes of these land disputes have focused on the controversial land policies that sacrificed the rights of local communities to the interests of state agencies and large companies, particularly in the context of the oil palm 'boom' in the Outer Islands. What has largely been overlooked are the actual land reforms implemented in project locations and their role in shaping the dynamics of land disputes. This study uses a political ecology approach to investigate the land reforms in the NES program and their contribution to the numerous land disputes that plagued the program from its inception. It shows how disputes in schemes were not simply the result of a large-scale land grab by government agencies and plantation companies but rather were the consequence of land reforms that transformed customary (adat) property rights and agro-ecological systems and, in the process, dramatically restricted access to land. Drawing on debates about the peasantry, contract farming and agrarian transitions, the study argues that land reform policy was above all shaped by the state's desire to create ideal capitalist small farmers who possessed unique cultural characteristics. Although the study focuses on the modern era, it adopts an historical approach to investigate how state authorities in Indonesia have moulded customary property rights overtime through land policies in order to recruit peasants into broader capitalist circuits of production. The focus of the research is the province of West Java, one of the first areas of Indonesia to be incorporated into the Dutch colonial state and the setting for numerous agrarian conflicts dating back to the Dutch colonial era. The research used quantitative and qualitative research methods to explore these processes in historical and contemporary context. In depth case study field work was undertaken of nucleus estates in West Java to analyze the dynamics surrounding land use change, and struggles over land and the meanings of adat in the context of large-scale land reform programs. The findings of the research support the contention in the common property literature that customary institutions, such as adat property rights, are resilient and may endure and adapt in the face of external development interventions. It shows how in many parts of Indonesia, the livelihoods of smallholders continue to be supported by a successful l relationship between customary property rights and the agro-ecological systems to which they are intimately connected, or what might be called the 'political ecology of adat’. It calls for tree crop development policies that work within this political ecology of adat, rather than seeking to transform and undermine it through land reforms that continue to promote the myth of the small farmer in order to justify control over land by large plantation companies.

Although the evolution of the modern concept of the right to private property is a matter of historical contingencies, private property has now been firmly established as a basic institution of the contemporary world. It may be defended or justified by a number of moral and economic theories. Since the late twentieth century, the predominant conception of property has been one which associates it with its 'social function', thus superseding the earlier notion of 'absolute' property rights. At the same time, the protection of property rights has acquired increasing prominence in the constitutional jurisprudence of many legal systems. While it was a British colony, property rights in Hong Kong were not constitutionally entrenched. These rights were however clearly defined by the long established tradition of the common law which had been transplanted to Hong Kong. At the same time, the principle that the compulsory acquisition of private property by the exercise of governmental power must be subject to the payment of just compensation was reflected in legislation. Hong Kong law also followed the modern trend in subjecting various private property rights to regulation in the public interest. The pre-1997 legal system in Hong Kong has largely remained intact after Hong Kong's incorporation into the People's Republic of China (PRC). The legal protection of property rights has in fact been enhanced after the handover with the coming into effect of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the PRC. This 'mini-constitution' for post-1997 Hong Kong gives constitutional recognition to the protection of private property rights. This paper will begin by reviewing briefly the theories relating to and rationales for the protection of property rights (part II). It will then introduce the existing regime for the constitutional protection of property rights in Hong Kong (part III). Two specific problems arising from the interpretation and application of the constitutional provision for the protection of property rights in Hong Kong will then be examined (parts IV and V). The paper will conclude with a summary and some observations about the development of constitutional protection of property rights in Hong Kong and in mainland China (part VI).

Protection of Property Rights has become a pressing issue in China since the country strived to move from a planned economy to a market economy in late 1970s. The passage of the Property Law of China on March 16, 2007 marked an historic change in the country from public to private with respect to property rights. Effective on October 1, 2007, the Property Law for the first time in Chinese history grants an equal protection to both public and private properties, breaking up the orthodox ideology in favor of public ownership against private ownership and individual liberty. With a notable civil law tradition, the Property Law is intended to set forth comprehensive rules regulating creation, alteration, alienation as well as termination of property rights, and protecting private property rights in China, a country where the public or state ownership is still playing a leading role in the nation's economy. Many aspects of the Property Law, which are different from those in other countries, particularly common law countries, are unique not only in their content but also in their application. The land use rights typically reflect a Chinese reality, in that the ownership of land is separated from the possession and use of it. Adoption of the Property Law in China is a substantial step toward protection of private property rights in the nation. The greatest challenge facing the country, however, is how to enforce the law so that the private property rights are effectively protected, especially in situations where public ownership is involved. The Nail House syndrome that has spread across the country indeed raises the serious issue of compensation in cases of government takings. Whether or not compensation for takings will be just and reasonable remains to be answered. t Associate Professor of Law, Temple University Beasley School of Law. The author would like to thank Professor Robert Reinstein, the Dean of Temple University Beasley School of Law for his guidance, and Professor Jane Baron of Temple University Beasley School of Law for her suggestions and advice. Berkeley Business Law Journal

Until now, Congress has been content to let the judiciary draw the line on takings by deciding when the government must pay compensation to private property owners.However, some members of the 104th Congress proposed new legislation which would significantly change the current federal approach to regulatory takings.'These legislative proposals sought to replace much of the case law interpreting the Fifth Amendment Takings Clause.Despite judicial decisions favoring private property owners in the last few years, many in Congress believe that a clear standard on regulatory takings is neededa standard which will better protect private property rights in the face of government regulation by reducing the amount of property value diminution required before the government must compensate private property owners.These members believe expanded protection of property rights is consistent with the intentions behind the Fifth Amendment Takings Clause.At the heart of the conflict is the tension between individual rights and the interests of the public, or, as some would say, the will of the majority.There are no easy answers to this timeless dilemma.

This chapter examines the effect of occupation on private property and contract rights within the context of the U.S.-led invasion of Iraq in 2003. In doing so, I examine how the treatment of private property in the Iraqi occupation compares and contrasts with Japanese, Italian, and German occupations after World War II. Furthermore, I show how non-European occupations have been characterized by a disregard of occupation rules safeguarding private property as opposed to European occupations. This disregard of the private property under occupation is similar to the disregard with reference to territorial acquisitions of a much earlier period, which I addressed in Chapter 2. In this chapter, I also demonstrate the importance placed on the private property of Europeans in non-European contexts and the lack of focus on the private property rights of non-Europeans. It is therefore not surprising that, following the U.S.-led conquest of Iraq in early 2003, most scholarly and press coverage focused on the status of foreign corporations’ property in Iraq before the war.

Provision of public infrastructure and services in various sectors such as agriculture, mining, transport, education, rural development, and health, among others, requires a lot of land, which government usually expropriates as it may not have the appropriate land, or available in limited quantities, or in appropriate locations. Compensation is normally required to cover expropriatory losses occasioned to expropriated people. This paper aims to deepen our understanding of the applicability of market value as a basis for valuing customary property rights for compensation purposes during expropriation. By using the case of Mombera University Project, this paper analyses how compensation is assessed for customary property rights that are dominant in Malawi. The paper demonstrates that practically compensation for expropriating customary properties is generally inappropriate because market value, as a compensation valuation basis, and the methods used for its determination, are ill-equipped for customary properties. In this regard, the paper argues that prevailing assessment practices lead to inappropriate compensation for customary property rights.

This Article models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of scarce resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to conflict/war, the following question is considered: if pre-conflict common ownership is socially-optimal, under what conditions will disputing parties fail to bargain around the conflict? In addition to the explanations identified by Professor Fearon, the present article offers an additional behavioral explanation evidenced in the institution of private property rights itself, and, in particular, in state “Castle Doctrine” laws that permit the use of lethal force in defense of real property. To promote the socially-optimal shared use of contested scarce resources, a role for the courts is suggested where de facto common property rights are established by rendering private property rights random or unclear — judicial behavior that stands in sharp contrast to the commonly understood normative implications of the Coase Theorem. This uncertainty weakens private property rights, reducing the expected spoils of costly conflict, and, in turn, creates an incentive for disputing parties to cooperate in the form of negotiated settlement agreements. In this way, less secure claims to private property promote social cooperation.

The Real Right Law of the People’s Republic of China is the basic law for regulating and protecting the property rights. The Constitution, as the fundamental law, adjusts the property right relationship too. The protection from Constitution is the precondition and base for protecting property right. The Real Right Law is to fulfill the principle of Constitution that ensures citizen’s private property right. To protect the property right, Constitution mainly aims at defending the country against outside. Its basic function is to define the country activity. As for the Real Right Law, it is to protect the property right by defining the property in case of invasion of other civil subjects. Both Constitution and Real Right Law offer protection for private property right and also impose restrictions on private property right. That is the national requisition system. This system imposes strict restrictions to private property right. Therefore, it is necessary to set up firm restrictions and constraints on the requisition system. According to the legislation of other countries, we can restrict and constrain this system from three aspects, namely the intention of requisition, the complement standards, and the process, driving the government to realize lawful administration, and protecting the private property right properly.

Environmental Markets: A Property Rights Approach, by Terry L.Anderson and Gary D.Libecap. Published by Cambridge University Press, Cambridge, UK, 2014, pp. 240, ISBN: 978 0 5212 7965 9, AUD$ 37.59 (paperback) AUD$ 94.03 (hardcover).

We use household survey data to investigate the effects of formal, private property rights to agricultural land on agricultural investment, land valuation and access to credit in Tanzania. Results show that while there are no detectable effects of formal, private land property rights (written documentation of ownership) on agricultural investment, land ownership documents nevertheless increase the market value of land substantially (more than 25 percent). One reason appears to be that well-documented private property rights facilitate the use of land as collateral for loans and therefore eases access to credit. The findings suggest that there are potentially significant, economic returns to systematic land titling in Tanzania and other countries, although more research is needed to firmly establish this conclusion.

Private property rights security is currently seen as central to explaining cross-country differences in economic development. Variation in private property rights security itself is perceived to be best explained by differences in the degree to which the political system is able to constrain the despotic power of state executives. I reassess the existing evidence for these two hypotheses and find that: (1) higher levels and significant changes in private property rights security and constraints on the executive are not correlated with higher levels of income and (changes in) growth rates; (2) the commonly used instrument for constraints on the executive and private property rights security - the natural log of European settler mortality - is invalid because it is associated with current levels of income besides its effect through private property rights security and constraints on the executive; and (3) the regularly cited Korean case is in fact evidence against these hypotheses. I provide explanations for these findings and call for a rethinking of which type of institutions and policies are decisive for growth.

Takings are usually understood as government-imposed restraints on preexisting private property rights. But this is myopic. A cursory examination of actual takings cases reveals that disputes often arise where existing public and private property rights collide: where private lands meets public waters or where public wildlife have habitat on private lands. In these cases, the government is not just imposing on private property rights; it is also seeking to vindicate existing public property rights, for which no compensation should be required. This presents a boundary issue: where do private property rights end and public property rights begin? This chapter assesses the boundary problem in regulatory takings law by examining several important public-private boundary disputes, including Causby, Nollan, Pallazolo, Just, Christy, and Tulare Lake. The purpose is not to offer a comprehensive theory of when private property rights should trump public property rights, or vice versa. The boundary problem is simply too complex to permit a simple, theory-based solution. But neither can the problem be willed away - as the Supreme Court seems intent on doing - by ignoring the public property rights at stake in many regulatory takings disputes.

Private ownership of property is a fundamental right in our democracy. Historically, land ownership and the virtually unrestricted right to use one's property, played a key role in the development and growth of this country. But private property rights are being challenged, redefined, and reallocated, resulting in new restrictions and changes in agricultural landowners' rights to use their land. Increased awareness and concern about health and environment are causing a change in public attitudes toward agriculture. In the name of environmental protection, new restrictions are being placed on private property rights, causing uncertainties and altering the economic options available regarding the use of land for agricultural production. This paper deals with questions regarding; what are private property rights, what entitlement does land ownership include, and how are property rights being changed? While recognizing there are additional issues impacting property rights such as nuisance conflicts between rural non-farm residents and their farm neighbors, and zoning ordinances, this discussion will be limited to the changing property rights due to environmental protection. These are questions currently being debated by people who believe they hold certain property rights, and by others who either want control or reallocation of those rights, or who also believe they are entitled to those same rights. As the allocation of private property rights changes, the determination of who holds what rights directly affects landowners engaged in agricultural production. Changes required in agricultural management are the result of new information regarding the impact of some agricultural practices, such as; atrazine is no longer viewed simply as a weed control product for corn production, but is now viewed as a substance that causes degradation of the groundwater; and wet spots in fields should no longer be tiled to improve the productivity of the land, but should be left as possible habitat for wildlife. While changes in management practices may be necessary and appropriate, uncertainty for agricultural producers is created regarding which current practices may be restricted in the future and how much control will those outside of agriculture have on the management and operation of agricultural operations. This paper is an analysis of the issues underlying the conflicts resulting from changing agricultural private property rights due to regulations seeking to increase environmental protection.

Political theories of property rights are less optimistic than self-governance perspectives regarding the ability of non-state organizations to supply private property institutions. Despite offering different answers to the question of where property rights come from, these diverse perspectives share a concern with organizational capacity, constraints, and legitimacy as explanations why organizations are able to supply private property rights. We use these shared concerns as a point of departure to investigate formal and informal private property rights in rural Afghanistan. We find that informal private property rights are more effective than formal private property rights because customary organizations fare better than the state on the dimensions of capacity, constraints, and legitimacy. More generally, these ‘political’ features of formal and informal organizations explain why self-governance works, as well as provide insight into the challenges confronting efforts in fragile states to establish formal private property institutions.