BY PROFESSOR BOB HUGHES
HEAD OF
SCHOOL OF LAW
UNIVERSITY OF THE SOUTH
PACIFIC
Title: Melanesian Land Tenure in a Contemporary and Philosophical
Context
Author: Lea, D.
Published by: University
Press of America, Lanham, 1997
The title of this text is, to some
extent, misleading. It conveys the impression that it is predominantly a text
about Melanesian land tenure. This is clearly not the case for, as the
introduction tells us, the author's intention is to "compare and contrast
customary communal ownership as found in Melanesia with the Western paradigm of
private ownership. The intent is to gain a perspective on Western institutions
of private ownership through a contrast with a form of land tenure endemic to a
very different sort of culture.." (Introduction p. vi)
The book certainly
has something to say about Melanesian systems of tenure, as also about the
politics of reinforcement of such systems. But, as has been suggested, the main
purpose in doing so is to provide a suitable point of contrast. Such systems
display notions of community which the author uses as the basis for a comparison
between communitarian ideas and the predominantly individualist theories of
private property or private ownership. The latter are ideas which provide the
dominant, liberal driven, conceptions of property in the Western tradition. The
author purports a critique of these ideas along with their frequent associations
with the sense of autonomous self identity which liberal theorists are said to
espouse. At least that is what their critics assert to be at the root of much
liberal thinking in relation to property - from Locke and Kant to
Rawls.
It is admirable that the author attempts not merely a critique of
of liberal ideas of private property from the standpoint of Melanesian culture.
To do so would hardly convince the ardent liberal modernist who would, no doubt,
assert that this would be an attempt to criticise modern or developed cultural
ideas from the standpoint of cultural backwardness, or some such thing. However,
the author reinforces his approach by linking the community principles to a
Western tradition of communitarian property theory from the early Church Fathers
through to modern communitarian critics of liberal thought.
It could be
imagined that such an undertaking might easily fall into arid philosophical
debate concerning matters of principle or logic. The author disavows any attempt
to do explore these dimensions. Ultimately, and in that respect, I think he
succeeds, whilst at the same time appropriately acknowledging much of the
background debate.
In the end, the work provides some valuable insights.
There is still an impression that too little is said about Melanesian culture
and land tenure systems. I wonder whether the book could have been just as
effective without any reference to it at all. If the main purpose was to
establish the sense in which these systems are based around communal principles
of ownership then that, of course, could readily be conceded. They are fluid and
organic and generally oriented towards usufructary rights. There is also no
doubt that Melanesian land tenure has long endured as the focal point of
community. But, like many who employ the concept of community in opposition to
liberal autonomy, it is easy to be carried away unexamined assumptions regarding
the ultimate worth of this concept. Many community sociologists seem to have
lost interest in it precisely because, whilst it sounds plausible, it proves to
be ultimately indefinable.
True enough, the author seems to be concerned
more with questions of viable systems of land tenure rather than with the idea
of community per se. But it would have been interesting to hear some of the
disadvantages of communal or customary systems of ownership. Communal systems of
ownership whether they be based on custom or more sophisticated Western ideas
can be oppressive. Indeed if community implies commonness the notion can be
taken to extremes. The culture of sameness, as some have called it, is not
necessarily something to be held up as of intrinsic value. As Hegel said of
Schelling's undifferentiated Absolute: 'it is the night in which all cows are
black'.
The attraction of community is seemingly that it is inclusive.
Even so, one might doubt whether, for example, the mataqali (not metaqali p.
176) system of land in Fiji provides any particularly beneficial system of
ownership in the conditions of that country as they now exist. The term can be
translated as something like 'species' or 'kind'. If it is inclusive, it is also
exclusive. Surely a number of Indo-Fijian citizens would be happy to indicate
just how and why this sense of community has been just as oppressive of them as
it has been immediately beneficial to some of those who are of the right
'species'.
But these points aside the book provides an interesting and
novel contribution to the debate between liberal and communitarian thinkers. It
seems that the debate is unresolvable but that, of course, is the nature of
political discourse.
Professor R. Hughes,
School of
Law,
Vanuatu,
11th November 1997