Chapter 21: Customary tenure: remaking property for the 21st century
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This chapter examines contemporary customary land tenure, arguably the largest tenure regime in the world in terms of numbers of persons dependent upon this system to secure land rights and in respect of the proportion of global land area held under customary tenure, with or without legal support. The chapter argues that customary rights have always had incidents of property, although not precisely those which state-made definitions have classically imposed. This is dramatically and quite suddenly changing, in the context of the long history of presumed immutable legal norms around property. Reform is particularly noticeable in Africa, where more than 90 per cent of rural dwellers acquire, hold, and transact lands through community-based customary norms and where two-thirds of states have adopted relevant new constitutional or land law provisions since 1990. Among critical shifts is protection of customary estates as properties whether formally registered or not, and a new legal ability for communities to own lands collectively without needing to register legal entities to hold these lands on their behalf. Inroads are also being made into types of land which communities may lawfully own, including traditionally owned forests and rangelands, critical to livelihoods. Some new land laws also now endow community-based institutions with administrative authority over customary rights in their domains. Millions of hectares are quietly moving from status as unowned public lands to community property. The implications for the shape of agrarian society are yet to be grasped.

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