“There are interesting fringe cases, of course”… ” “modernizing” transition where communal, pastoral land was titled and divvied up into private parcels.”

I think things have gone to the fringe a little too conveniently in many narratives… And it is not always communal pastoral land that was brought into the wonderful titling system run by the humble title clerks. Some links (I only have actual weblinks for the first one) that might be interest —

Banished (adverse possession etc) — http://www.pbs.org/independentlens/banished/index.html

The discovery doctrine — I had also listened a few months back to an interview on radio with a law professor from either UT Austin or University of Houston that had some discussion about the Discovery Doctrine established in Johnson v. M’Intosh case and its implications. There was also some some discussion in that interview about the book “Conquest by Law”

And, any thoughts if the treaty of Waitangi in New Zealand might also not fit into modernizing transition storyline?

3) economic efficiency — like #1, this is an “effects”/”consequences” style argument rather than an “intrinsic” one (natural rights are one such example of an “intrinsic” arg). Basically, the entire economy works better if people know what they own and are reasonably certain that they can continue to own it into the future. Consequently, all people who currently own something today or *aspire* to own something tomorrow need some belief that property titles are durable and not entirely at the whim of the polity. If they can take one guy’s house, they can take mine and thus I shouldn’t work so hard to maintain it. BUT, Economic efficiency is dependent upon everyone feeling an incentive to work hard and so property rights on houses (in this case) are in everyone’s incentive to maintain.

The process you describe here, imo, represents a false picture of “the polity” in India (or for that matter Pakistan and Bangladesh). The state is much weaker than you allow for in that it cannot actually strip property rights from anyone and everyone. In both the natural law argument and the efficiency argument, there’s an underlying conception of universalism. And while I do agree that there are universal characteristics that people share, the capitalist mindset towards property in the form that you envision is not necessarily one of them, particularly given that for all the influence of British colonial ideologies over the social world’s shape today, the colonial and postindependence tradition of state direction/control of the economy is very different from what liberal ideology would have us think about the state “showering its blessings upon all alike” or whatever it was that Andrew Jackson said. And unlike in South Korea, where Japanese colonialism basically “wiped” society out in terms of resistance to their agenda, in South Asia, the British always felt a bit precarious and balanced different forces against each other, and the state never was as directly authoritarian in method.As a result, because of the different histories and the different types of political economy arrangements you can have, “the market” will look different and consequently the ways in which people secure their rents will look different as well.

Further, your argument doesn’t work because if what you were saying were a good description of the macro, then the informal market would generate the legal norms that the formal market does. But intuitively, it doesn’t make sense to me, anyway, that people would all of a sudden develop a sense of collective order and self-interest that was based on stable capitalist property arrangemetns rather than some other form of stable arrangements of power. In other words, whether you think people are naturally capitalist or naturally communist or naturally anything, the fact doesn’t change that no one has solved the class action problem in India and therefore India is not a social democracy.

I think you won’t see capitalist land rights in India of the kind you envision unless you have a radical land reform movement that will actually break the agricultural power base (whihc will probbaly be framed in terms of Maoist or some such thing…e.g. the China/South Korea path). But people have postulated different ways this might happen, and incrementalism seems the way of the Indian polity, rather than statism, for the reasons mentioned above or others. Regardless, I think this is what development is – at least in India – it’s a constant state of ‘becoming’ not a state of being. (though one might argue that that’s what all capitalism is, just less visibly so in hegemonic places like Europe, and unlike Marx, we should note that there isn’t a teleologic end, if we can help ourselves .

who would have known?

20 · Nayagan said

no condescension intended (should’ve provided a link to the smarties I know and love) and I did not realize you were asking a question.

Should ask, though, why is the ‘legal system failing’ ? That particular comment may not have asked a question in and of itself, but I mean that I’m asking questions in a broader sense. I’m asking you to question the assumptions you’re making, the assumptions this system is built upon, and I’m asking if there are other alternatives you may not be considering. I’m also questioning “magic bullet” solutions that are assumed to work across the board in very different situations. I don’t want to answer your question from #7. I refer that question back to the stakeholders, as I said in #8 because I agree with your assertion (last line of #20) that the rest of us are just armchair quarterbacks.

I’ve never thought of a ‘magic bullet’ when this topic comes up–too many assume that because one favors many market-based solutions that one must therefore think an abstract concept is an all-purpose curative. If you’re looking for smack-downs of economists trying to develop their own single models of ‘why all of this happened’ do you know that they have been roundly scolded in an informative and ad-hominem-free way by Arnold Kling (not Naomi Klein, Weisberg or any of the others who profess to know all unlearned knowledge), http://econlog.econlib.org/archives/2008/10/economists_pretending_to_have_knowledge.html

as for armchair quarterbacks, i agree that it applies to me in the context of Indian poverty, but as far as American poverty goes…i was on the field for 15 years and didn’t have so much as single desi in the stadium with me, so watch the inferences carefully.

The Wired article here is a great example of both the bottoms up emergence as well as the gains to be had if there were more top down recognition.

The fundamental place where the Marxist narrative does not break is that it recognizes that behind laws are social forces – so who is going to guarantee titling for the poor? Why will they do so?

There are at least 3 schools of thought on the causality here -

1) it’s reverse causality — e.g. titling / property rights for the poor are maintained by the rich in order to prevent the poor from agitating for Marxism and/or other types of unrest. This is a sort of Rawlsian argument and you can see it in some of the Tudor response to enclosure riots. Many assert that the GOP’s interest in overly cheap mortgages was rooted in the maxim that “no homeowner is a communist.”

2) natural rights — one variant of this arg is that because people own themselves, and because a primary determinant of the value of property is the time / energy invested by people (for ex., Bangalore’s $1 –> $400/sqft climb in 10 yrs)… a natural extension of my claim to self is my claim to stuff I’ve created.

3) economic efficiency — like #1, this is an “effects”/”consequences” style argument rather than an “intrinsic” one (natural rights are one such example of an “intrinsic” arg). Basically, the entire economy works better if people know what they own and are reasonably certain that they can continue to own it into the future.

Consequently, all people who currently own something today or aspire to own something tomorrow need some belief that property titles are durable and not entirely at the whim of the polity. If they can take one guy’s house, they can take mine and thus I shouldn’t work so hard to maintain it. BUT, Economic efficiency is dependent upon everyone feeling an incentive to work hard and so property rights on houses (in this case) are in everyone’s incentive to maintain.

no condescension intended (should’ve provided a link to the smarties I know and love) and I did not realize you were asking a question. Should ask, though, why is the ‘legal system failing’ ?

That particular comment may not have asked a question in and of itself, but I mean that I’m asking questions in a broader sense. I’m asking you to question the assumptions you’re making, the assumptions this system is built upon, and I’m asking if there are other alternatives you may not be considering. I’m also questioning “magic bullet” solutions that are assumed to work across the board in very different situations.

I don’t want to answer your question from #7. I refer that question back to the stakeholders, as I said in #8 because I agree with your assertion (last line of #20) that the rest of us are just armchair quarterbacks.

Now that the tide has turned, they want to change the rules in the middle of the game.

By the way, it’s only a “game” to the bankers and traders. To all those people whose homes are being foreclosed it’s their whole life.

We cheered the coming of the MNCs to transform nammuru into the silicon valley of India, but never showed much concern on the transformation of a laid back city into a highly polluted, overcrowded city with alternate justice systems.

The laws and the law enforcement agencies in India are due for an overhaul.

Dr.A, Harbeer, since you seem to be pulling once again from the “Save Poor People by Bringing Down Neoliberalism” chest, here’s a hypothetical: how would you choose to divvy up prime arable land in the desh? Would you hand IOUs to the poor farmers in the area or perhaps distribute some milk-sweets with the farmers’ names pressed into them? Just as we cannot, with any confidence, go into the past and equitably apportion property due to clan/caste/tribal considerations, we also cannot trust the land to be used by all the farmers concerned without the disputes and the (dogwhistle!) inequalities that inevitably arise from the limbo of no titling.

Neoliberal ideology has done a fairly good job of bringing itself down and doesn’t need much of my help – largely because for countries like India it gives you a poor understanding of both how to go about industrialization and how to go about helping the poor. If you look at my original comment (#1), I laid out two separate questions – effective industrialization and effective solutions for the poor. I don’t have an answer for the second question – other than harbeers – to promote social organizing by the poor – substantive democracy. I think people should be able to choose with full knowledge before they support ideas like “industrialization” or “development” that are foisted upon them (Especially when the strategies for pursuing them don’t actually accomplish anything).

But if you’re asking what my preferred solution is – either consultative industrialization if that’s possible – if it’s not, then turn the whole thing over to the creation of radical and fair democracy. The major pitfall is that you can capture political power at one level, but that leaves you economically, politically, and militarily vulnerable at another (say lke the left in west bengal and andhra and kerala were vulnerable to the centre or the way that the indian government could decide to be a radical democracy but this would still leave it in a global system). So this leads to things like reading wallerstein and understanding that hte appropriate unit of analysis is the global system – and in that sense, an increase in global democracy would be quite useful – starting with growing global governance AND redistribution (not aid). As a starter, we might start with noncitizen voting in the U.S. and the establishment of a global nonintereference regime on the part of more powerful countries (though i fail to see hwo this would work without substantive politica and economic and military equality among countries).