ABSTRACT

Widespread sharing of produce is the rule in tribal societies. Some early Western observers therefore concluded that they were 'communistic', and that individual rights in land and other goods did not exist. There is implicit in this judgment a false antithesis between 'communistic' and 'individualistic', arising from the way in which we say that a person or a group 'owns' a pie<::e of land or some item of property. We are speaking loosely when we use this sort of phrasing: what is owned in fact is a claim to have power to do certain things with the land or property, to possess immunities against the encroachment of others on one's rights in them, and to exercise certain privileges in respect ofthem. But in addition other persons may have certain rights, claims, powers, privileges, and immunities in respect of the same land or property. Hence, when we say that a particular group of kinsmen owns land, we are also saying that all the members of that group have claims to exercise certain rights over that land - maybe equally with one another, maybe varying with their status. The incidence of rights over land varies with the technology of the tribe concerned, from those who live by hunting and collecting wild products to those who have elaborate systems of agriculture. Even when, as in hunting tribes, each member of the tribe has the right to hunt freely over the extent of the tribe's territory, this reduces to a right of every individual to hunt without let and hindrance from others; and this particular right to hunt freely may exist among agriculturists whose arable land is allocated specifically to smaller groups and to i~dividuals within the tribe. Rights of this kind can vary with the methods of exploiting the land: thus hunting with bow and spear may be free, while *Reprinted by permission of the International African Institute from Chapter XII: 'Property Rights and Status in African Traditional Law', in Ideas and Procedures in African Customary Law, 1969, edited by Max Gluckman, published by the Oxford University Press for the International African Institute.