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Sample extract from The Native Land Court Vol. 2 - www.thomsonreuters.co.nz A RETURN TO COLLECTIVISM? property and clear titles, and a growing emphasis instead on the “social function” of property. 36 This concept is particularly associated with the French jurist Leon Duguit, who argued that the state’s primary purpose was to provide for social needs, and it thus followed that the state’s protection of private property rights was conditional on property performing its “social function”. In the early 20th century this concept was incorporated into a number of important constitutional documents, including art 153 of the Constitution of the Weimar Republic and the famous art 27 of the Mexican Constitution of 1917: 37 “The Nation shall at all times have the right to impose on private property such limitations as the public interest may demand, as well as the right to regulate the utilization of natural resources which are susceptible of appropriation, in order to conserve them and to ensure a more equitable distribution of public wealth. With this end in view, necessary measures shall be taken to divide up large estates; to develop small landed holdings in operation; to create new agricultural centers, with necessary lands and waters; to encourage agriculture in general and to prevent the destruction of natural resources, and to protect property from damage to the detriment of society. Centers of population which at present have no lands or water or which do not possess them in sufficient guarantees for the needs of their inhabitants, shall be entitled to grants thereof, which shall be taken from adjacent properties, the rights of small landed holdings in operation being respected at all times.” 34 Acts of protest against enclosure were still continuing in Britain in the 1880s and 1890s, and these protests were reported in detail in the colonial press: see, for example, “Asserting ‘Common Rights’” Timaru Herald (Vol LVII, Issue 1624, 5 December 1894) at 4 (referring to protests in Flintshire). On other occasions newspapers commented on the risks of landlessness and land monopolisation that enclosure had aggravated: see, for example, “Land Nationalization” The Colonist (Vol XXVI, Issue 3595, 18 October 1882) at 4; “Warning to the Colonies” Timaru Herald (Vol XC, Issue 13318, 21 June 1907) at 2 (reporting views of the English Land Nationalisation Society). Newspapers in New Zealand were generally supportive of Lloyd George’s budget in 1910 and dismissive of attacks on it by the House of Lords, sometimes pointing out that some of the leading opponents of the new land tax had unjustly profited from enclosure in England: see “Our Ruined Peers” Auckland Star (Vol LXI, Issue 25, 29 January 1910) at 13 (referring to the Duke of Portland). Radical newspapers such as the Maoriland Worker naturally strongly disapproved of parliamentary enclosure in England, thus reflecting longstanding English radical tradition: see, for example, “Landlordry in the 16th Century” Maoriland Worker (Vol 12, Issue 298, 15 November 1922) at 15. These examples were rapidly collected from the Papers Past database by searching under the heading “parliamentary enclosure”. There is scope for further research on attitudes to enclosure in New Zealand and her sister colonies of Victoria and South Australia. 35 See Joan Thirsk “The Content and Sources of English Agrarian History after 1500” (1955) 3 The Agricultural History Review 66 at 67. In the first decade of the 20th century, historical writing on enclosure in Britain was marked by a feeling that the way to restore prosperity to the English countryside was to reverse the trend towards large estates and encourage small holdings: “[t]he tide of opinion, among historians at least, was running in favour of small holdings, because these had withstood the rigours of economic depression better than the large farms” (at 67). 36 See generally Thomas T Ankersen and Thomas Ruppert “Tierra y Libertad: The Social Function Doctrine and Land Reform in Latin America” (2006) 19 Tulane Environmental Law Journal 69. 37 As cited in Thomas T Ankersen and Thomas Ruppert “Tierra y Libertad: The Social Function Doctrine and Land Reform in Latin America” (2006) 19 Tulane Environmental Law Journal 69 at 100–101. They observe that “[a]lthough the 1917 Mexican Constitution did not use the phrase ‘social function’ the concept is clearly implicit” (at 101). Sample extract 258 Sample extract from The Native Land Court Vol. 2 - www.thomsonreuters.co.nz
Sample extract from The Native Land Court Vol. 2 - www.thomsonreuters.co.nz 10.3 REVIVAL OF TENURIAL COLLECTIVISM Similar provisions are found in the constitutions of many Latin American countries. The concept of the “social function” of property was influential in New Zealand. Many of the policies of the Liberal government were quite explicitly based on the idea that property indeed had a social function. This is seen most clearly with the Liberal project of breaking up the great estates, given statutory form with the Land for Settlements Act 1894. John Ballance, as well as many other people, was familiar with the works of Henry George, and debates about the unearned increment and whether Crown grants should be in freehold or leasehold dominated politics from 1891 to 1910. The Liberals also enacted legislation to protect rights of public access to the countryside (“the Queen’s chain”), to vest navigable river beds in the Crown, and to reserve to the state rights to generate hydro-electric power. New Zealand was definitely not a conservative country in these respects. However, this new emphasis on the responsibility of the state to ensure that the social function of property was properly given effect to meant also that pressure for the state to acquire Maori land was actually reinforced. Land in Maori ownership did not seem to be fulfilling its social function either. Many policy-makers drew analogies between the underused great estates of the rural gentry of Canterbury and Otago and the still extensive properties held by Maori in the North Island. The Maori population was apparently declining; Maori still had plenty of land — therefore the enlightened and progressive thing to do was to acquire most of it from them and transfer it on clear titles to people who could use it. 10.3 Revival of tenurial collectivism The Jacobin legacy of the French revolution, with its deification of the enlightened state comprised of free (male) citizens governed rationally by a centralised republic, coexisted with another, equally French, cultural legacy: that of Rousseau, of European romanticism, and the romantic cult of the bon sauvage. If the former, and its English Lockean and Benthamite equivalents, were the dominant trends in the 19th century, the counter-tendency was still there, lurking beneath the liberal culture of individualism, rationalism, and republican virtue. Romanticism and relativism were especially influential in Germany. Towards the end of the 19th century, born in part from the failures of the liberal dream, the counter-trend started to increasingly make its presence felt. In the late 19th and early 20th centuries this led in some countries to a tendency to idealise the mores and values of indigenous cultures and even towards a re-assessment of traditional varieties of tenure. Prophets of this new mood included Tolstoy and Mahatma Gandhi, as is well-known. Even in a metropolitan country such as Britain there was also a growing belief in the virtues of peasant proprietorship and a critique of parliamentary enclosure, evidenced by the influential historical studies of English rural history by Gilbert Slater, RH Tawney, and the Hammonds, who have in turn influenced Marxist historians of the post-war era such as Christopher Hill and EP Thompson. 38 British policy-making was affected as well. In 1883, for example, Gladstone’s Liberal government, largely in response to crofter protest in Skye and other areas, set up the Napier Commission (Royal Commission on the Crofters and Cottars of Scotland) to review the circumstances of the impoverished crofters of the Scottish Highlands and Islands. The Commission was chaired by Lord Napier, formerly of the Indian Administrative Service; other members included Professor Donald MacKinnon of Edinburgh University. Also influential in the process of review and debate was the Sample extract 259 Sample extract from The Native Land Court Vol. 2 - www.thomsonreuters.co.nz
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