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The Commons and Customary Law in Modern Times: Rethinking the Orthodoxies

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Type: Conference Paper
Author: Wily, Liz Alden
Conference: UNDP-International Land Coalition Workshop: Land Rights for African Development: From Knowledge to Action
Location: Nairobi, Kenya
Conf. Date: October 31-November 3, 2005
Date: 2005
URI: https://hdl.handle.net/10535/321
Sector: Land Tenure & Use
Subject(s): customary law
land tenure and use
common pool resources
indigenous institutions
Abstract: "The answer lies, I believe, in reordering our priorities, in first defining customary domains if this has not already been done, and wherein customary law thereafter definitively and legally applies, thus providing better but not foolproof blanket protection to the diverse range of individual and shared rights that exist within that domain. Integral to this process must be the establishment of the institutional basis for the regulation of customary rights within those domains, ideally in the form of elected or at least partially elected community land councils charged by the community with the oversight and regulation of customary rights within those domains. This will also allow root title to be vested in these bodies as trustees on behalf of the owning community membership. With these critical foundations in place, attention should then turn to the common properties within those domains and which remain at most risk of loss to their shareholders. Only then, and possibly not necessarily ever, need the less vulnerable individually-held estates--farms and houses--be registered. It goes without saying that these procedures should occur by and at the local level, backed up however by supportive statute."

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