Property Rights and Economic Development: A Study on Comparative Legal Ontology
There are, across the world, radically different institutions of landed property, radically different ways of dividing up the space in which we live, and radically different ways in which land and property rights interact with other legal, economic and social institutions. These differences are found not only when contrasting the treatment of landed property in industrialized nations with those prevailing in, say, tribal cultures. They come to light also when one pays attention to the sometimes subtle differences in policies regarding landed property in different industrialized and semi-industrialized nations.
The parcelling of land into real estate is not, as we might be tempted to suppose, a simple geometrical affair. Real estate is human space; and as such it is opposed to physical, geometrical, and even geographic space. There are deep questions relating to the identity conditions of land parcels and associated entities, in addition to more familiar issues pertaining to the nature and status of rights in general and of property rights in particular.
The central ontological importance of landed property, as opposed to other types of property, flows from the fact that without land (or real estate), it is difficult (perhaps impossible) to obtain credit, and without credit it is difficult for nations and regions to develop. Land constitutes the most fundamental type of security, a feature which turns on its non-perishability and on the fact that it cannot be easily stolen, lost, destroyed, or counterfeited. The foundational role of land (or real estate--including buildings) in economic development is dictated also by the fact that all societies and all human activities manifest a spatial organization which varies systematically --in complex, subtle, and hitherto hardly explored ways-- from culture to culture and from age to age.
We can thus predict that clashes between different geographic and legal ontologies will occur where different cultures meet or in territories where more than one cultural group share the same physical space. Above all, we can predict that problems will arise where tribal, aboriginal, and indigenous geographic and legal schemes come into conflict with Western ones. Australia, New Zealand, Africa, Latin America, Southeast Asia, the Philippines, and also Hawaii, Alaska, and native American reservations inside Canada and the United States provide excellent examples of the sorts of problems which the metaphysics of real estate must address.
Extensive descriptions of such interactions are to be found in the literature. Much of this literature proves inadequate, however, not only because it is often motivated and colored by the current demands of advocacy in disputes over tribal claims, but also, and more importantly, because it is partisan in the sense of presupposing the correctness of some one single ontology of land and property and of dismissing others. Thus, for example, in place of the classical Western ontology some advocates of tribal land claims adhere to tribal ontologies in order to justify tribal land claims in Western court systems. More radical advocates of tribal ontologies, on the other hand, do not only dismiss the Western conception of property but also reject as 'colonialist metaphysics' the very idea of an encompassing general framework in which different ontologies of land and property might be compared and contrasted.
If, now, land is treated in a radically different way from one nation to another, then this will surely exert an effect upon their respective rates and types of development. Enhancing our understanding of the treatment which landed property receives in different cultures may thus lead to benefits in our efforts to lay the foundations for an efficient policy of international credit allocation, of providing incentives for national development, and of fostering the development of domestic and international credit markets in general. Although there are many legal treatises on property rights in general studies dealing with the specific ontology of property in land are non- existent.
An important reason for the differences between landed property and other types of property turns on the role of the object itself over which the property right applies. The concept of a parcel of land is, arguably, in more need of clarification qua object than is, say, the concept of a watch. The primary aim of the metaphysics of real estate is to provide a much needed account of the interplay between the bundle of sticks which comprises a property right in general and those highly complex ontological entities which are parcels of land.
At the one extreme, a land parcel is a well-demarcated volume of land with a maximal set of known, determinate property rights assigned to a given individual (or group). At the opposite extreme a land parcel is a zone, with one or more focal points or focal areas at which customary rights are well assigned to some group, clan, or family; these loci are then surrounded by penumbral areas in which the group's willingness to defend their rights and outsiders' propensity to acknowledge them declines in proportion to the distance from the loci. Most real-world cases fall between these two extremes: even in developed Western cultures. Hosts of problems faced by many individual nations concerning their slow domestic growth, as well as those faced collectively by nations concerning international credit allocation, arise, at least partially, from the absence of a method for analyzing and evaluating differences in the treatment of landed property. The ontology of real estate should help us in the design of such a method; some of the specific advantages that this new branch of applied ontology can yield include the development of a spatial interlingua for knowledge-and-data-exchange in the domain of land. The sophisticated categorial systems with which metaphysicians are familiar should help reveal the deficiencies and the advantages of different systems of landed property, and therefore it should be crucial in the identification and resolution of structural inefficiencies currently endemic in the work of international credit institutions. Moreover, the metaphysics of real estate should lead to new insights concerning the necessary and universal characteristics of a philosophically viable theory of landed property.
Frank, Andrew U. An Object-Oriented, Formal Approach to the Design of Cadastral Systems - How Much Have the Anglo-Saxon and the Continental Method in Common? (In Print.)
Hall, Edward T. The Hidden Dimension, New York: Anchor Books, 1966.
Hillier, Bill and Julienne Hanson. The Social Logic of Space, Cambridge/London/New York, etc.: 1984.
Mark, David M., and Andrew U. Frank (eds.) Cognitive and Linguistic Aspects of Geographical Space, Dordrecht/Boston/London: Kluwer, 1991.
Sack, Robert David. Human Territoriality: Its Theory and History, Cambridge/London, New York, etc.: Cambridge University Press, 1986.
Smith, Barry. 1994 "Fiat Objects", in N. Guarino, L. Vieu and S. Pribbenow (eds.) Parts and Wholes: Conceptual Part-Whole Relations and Formal Mereology, 15-23.
Smith, Barry. "On Drawing Lines on a Map" in Andrew U. Frank and Werner Kuhn (eds.), Spatial Information Theory. A Theoretical Basis for GIS, Berlin/Heildelberg/New York: Springer, 475-484.