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The legal term usufruct right is derived from ancient Roman law and means the temporary right to use to the property of another as long as the nature of the property is unchanged. In terms of natural resources, when a landholder gives or sells the usufruct rights to another person, that person may use the resources on the land in various ways, including planting and harvesting crops, grazing livestock, and collecting forest products. Usufruct rights refer to levels of control a person has over property, while not owning the property. In addition to usufruct, or use rights, other levels of control a person might have over property include the right of exclusion (the right to prevent other people from using the resource) and the right of alienation (the right to sell and give away the resources). A person with usufruct rights to natural resources may also have the right to exclude other people from using the resources, and may (but not always) have the right to sell the use of the resource.
Property rights define relationships between people and mediate their use of property in terms of “who can (and cannot)” “do what” and under “what circumstance” to the specific property. As such, property rights are usually considered social relationships between people with respect to a thing, but not between people and a thing. Consequently multiple aspects of social and cultural institutions influence the configuration of property rights, including usufruct rights.
The usufruct rights to lobster fisheries in northeastern Nova Scotia provide an excellent example illustrating the social nature of property rights. Describing the system of property rights that characterize the valuable lobster fisheries in St. George’s Bay, Nova Scotia, John Wagner and Anthony David found the term kindness was used to refer to usufruct rights. This term could be traced back to 18th century when a large number of Scottish people immigrated to Nova Scotia. A kindness was considered as the right of occupation and use of the land, but not the right of ownership. Transferred to the fishing industry, the right to harvest lobsters in certain parts of the bay was also based on kindness. In today’s generation these rights are referred to as “gentlemen’s agreements.” As a form of usufruct right to resources, kindness is best understood as a cultural system in which resources users are motivated to perpetuate and sustain the system of access to resources (effectively their economic livelihoods) through social and cultural institutions that sustain family and community values. This property system provides a well-defined set of rules that ultimately constitute an essential component of an effective management system.
Usufruct rights are often associated with customary law and common pool resources, which were common in preindustrialized America and Europe and are still active forms of law and resource control in many developing nations. Oftentimes, usufruct rights to hunt, forage, and plant crops on commonly held property are seen as an insecure and an economically inefficient form of tenure. Market-driven arguments posit that when resources are managed under a usufruct system, it obstructs investment aimed at improving the long-term quality or value of the land. As a result nation states around the world have sought to privatize land ownership. The most classic case of privatizing land while removing all use rights took place between the 12th and 19th century with the enclosure of the English commons. The motivating force was one of commoditization of land and its resources. As the English landowners brought together their scattered parcels of land and privatized the ownership of the land, former ways of subsistence living that used the commons for grazing, hunting, and collection of fuel were abolished. From a state perspective, privatizing land is a critical part of establishing state legitimacy in that it creates a census of people and their holdings, generates a class of taxpayers, and is believed to introduce land security. However, this process of land settlement also erases all usufruct rights, and as a result a class of landless people has emerged around the world.
In many parts of the world farmers still rely on usufruct rights and other customary forms of resource tenure for their subsistence livelihood. Contemporary empirical studies increasingly demonstrate that, in both industrialized and developing countries, common pool resources and usufruct rights associated with them have been and continue to be a successful way to manage natural resources.
- Amity Doolittle, Property and Politics in Sabah, Malaysia: Native Struggles over Land Rights (University of Washington, 2005);
- Bonnie J. McCay and M. Acheson, eds., The Question of the Commons: The Culture and Ecology of Communal Resources (University of Arizona Press, 1990);
- Robert McNetting, “Unequal Commoners and Uncommon Equity: Property and Community among Smallholder Farmers,” Ecologist (v.27/1, 1997);
- John Wagner and Anthony Davis, “Property as a Social Relations: Rights of ‘Kindness’ and the Social Organization of Lobster Fishing among Northeastern Nova Scotian Scottish Gaels,” Human Organization (v.63/3, 2004).