Traditional values and modern challenges in property law

Abstract

After decades of negative portrayal of traditional land tenure systems by the world's financial institutions, the World Bank has finally conceded that traditional modes of land tenure serve a beneficent purpose, and provide a foundation for the functioning of nonmarket institutions. This is tantamount to the recognition that land serves a dual function, namely the provision of the foundations of market and non-market social institutions.

Thus traditional land tenure systems can no longer be dismissed as a relic of ‘the Arcadian fantasy era in which noble savages were expected to wander off happily ever after to their dreaming sites and practice self-determination, in mystic communion with the land.’

From such recognition of the function of traditional tenure flows the challenges it must face, the foremost being how to make traditional land tenure viable and relevant in a global economic system propelled by market forces and by concepts of sustainable development. Globalisation is proceeding on the assumption of a borderless world in which property and appurtenant interests and rights can be effected instantaneously. The issue is therefore whether traditional land tenure systems and concomitant rights can retain a status autonomous of such a global economic matrix or be integrated into it.

In this regard the present writer essays a discussion of an issue pertinent to the theme of this conference, namely natural resources and ownership of the traditional knowledge which sustains them.