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Melanesian Land Tenure in a Contemporary and Philosophical Context by D. Lea (Book Review) [1997] JSPL 6; (1997) 1 Journal of South Pacific Law

Book Review 2 of Volume 1, 1997

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