Chr. Michelsen Institute
Property rights are disputed in peaceful societies with a functional state, legal frameworks and titling in place for registration and exchange of property. This is more so the case in states or regions in conflict and where the authority of the state is in dispute and where conflicts frequently are over access to and control over land, property and water – whether state-owned, common or private. Rights can be established by a formal organization (e.g. a state) or an informal organization (a tribe, a village or a gang). What is required is a monopoly of authority, administrative and enforcement capacities, constraints on key decision makers (especially the most powerful), and inclusive political and legal institutions, including de facto and de jure courts. Afghanistan, as a fragile state, has undergone two decades of externally supported and funded state-building, but few functional legal institutions are yet in place. However, private property rights remain strong. Much of rural land is owned privately or collectively by communities governed by a customary governance system that remains fairly similar across Afghanistan's ethnic groups. The authors argue that laws on property rights and use neither have to come from the state nor from the society; they can emerge in a gradual shift based on an agreed division of responsibility. They conclude that, in many contexts, the government need not formalize informal property rights because self-governance works well in defining and enforcing such rights. A lesson learned here is that priority rather ought to be on creating a political foundation for legal property rights, including political and legal institutions that enable a gradual process for transforming customary, traditional, and informal property rights into legal rights.