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Communalism in the Veld: Rethinking property in South Africa

2022; Wiley; Volume: 110; Issue: 1 Linguagem: Inglês

10.1353/tyr.2022.0035

1467-9736

Glen Retief,

Land Rights and Reforms

Communalism in the VeldRethinking property in South Africa Glen Retief (bio) Here is a parable about ownership, an illustration of how deeply arbitrary it has always been, how implicated in the world’s devastation. The story is known to almost every lawyer in America—to many, it is the foundation of modern property rights. The year was 1805. A rider named Lodowick Post was chasing a fox down a beach in Southampton, New York. This creature must have been both wily and swift. It scampered and bolted. In the end, though, it was exhausted, at which point a man named Pierson stepped onto the scene. Pierson shot the fox and claimed it as his own. [End Page 104] Litigation followed. The judges had to choose between two competing intuitions about ownership, according to a retelling by the law professors Michael Heller and James Salzman. One of these intuitions was what Heller and Salzman call “first- in- time”— the idea that whoever finds a marble on the ground has the right to toss it in a bag. Heller and Salzman name the second intuition “reap what you sow.” It’s the idea that whoever works hardest at something should draw its benefits. Had they followed the latter principle, the judges in Pierson v. Post might, in finding for the hard- working Post over the opportunistic Pierson, have laid the foundation in the world’s first constitutional democracy for an unbreakable legal link between labor and ownership. Instead, the judges in Pierson made a first-in- time ruling, promulgating a simple standard that did not involve complicated, sometimes- vexing work comparisons. This standard, which became known as the rule of capture, decided that the first person to bring under control a natural resource would own it. “Use” was relative, of course. Native Americans had not, for example, “used” North America in any sense that would imply ownership for the court: they had not laid down hundreds of miles of fences, nor had they clear- cut the forests. But large- scale damming, paving, drilling, irrigating, emitting, trawl- fishing, and mining: in such matters, it would pay to get to the resource first and then deplete it as quickly as possible. In this way, Heller and Salzman argue, New York’s Supreme Court socially engineered what scientists have come to refer to as the Anthropocene—the era in which we have so overexploited the earth that our long- term survival is now an open question. We’ve been governed by this bright- line model for so long that to us it seems natural and inevitable. But having grown up in South Africa, where large portions of the land are governed by profoundly different ownership norms, I have always been aware that our modern, capitalist- individualist land ownership norms are arbitrary. A recent trip I took to an experimental farm in Northwest Province in [End Page 105] South Africa reinforced my long- standing intuition that traditional, communal land ownership arrangements do not just offer a viable alternative as we collectively navigate crises of economic inequality and environment degradation. They may even be as essential to our shared future as windmills, urban gardens, or universities. in a world gravely marked by capitalism and colonialism, my home country of South Africa—the most unequal country on earth, where apartheid history has left the Black majority largely impoverished and landless—can be called ground zero for the Anthropocene. Our physical vulnerability to climate change was dramatized by the 2018 Cape Town water crisis, when a sophisticated, modern metropole almost saw its taps run dry due to a climate- aggravated mega- drought. Such susceptibility exacerbates the intensified divisions and injustices that threaten to scupper humanity’s cooperation in future crises, both aspects boiled down here to their essences. My own surname, Retief, is one of the most loaded in South African colonial history. My distant relation, Piet Retief, was one of the leaders of the Great Trek, the movement into the interior initiated by Boer farmers who were frustrated by, according to Retief ’s 1837 manifesto, the British colonial government’s abolition of slavery and perceived lack of support in “preserv[ing] the proper relation between master...