(1999) JLP 43: 1-30

CHANGING NAME-TAGS:

A LEGAL ANTHROPOLOGICAL APPROACH TO COMMUNAL LANDS IN PORTUGAL

Roland Brouwer

Abstract

This paper aims to illuminate issues concerning common property rights in land using the ‘thick’ mode of analysis through a legal anthropological study of communal lands in Portugal. It sees the composition of the bundle of rights constituting any particular property as malleable, and argues that a successful claim to attach to it a particular name-tag (as ‘state’, ‘common’, ‘private’ or other land) may produce a strategic advantage.

The terminology referring to communal areas of land in Portugal differs between popular language, in which they are montes, and administrative discourse, in which they are baldios, meaning uncultivated, waste land. The Civil Code enacted in 1867 consigned such lands to the state, as municipal or parish property. State policy was to convert them into private property until the 1974 revolution led towards the restitution of the commons.

The importance of the different idioms of property law may be seen from a case study of a dispute in 1989-90 between a parish council and two villages within a neighbouring parish. The villages claimed that certain lands were baldios, and their communal lands; the council claimed that they were its parish land. The dispute arose in a sense from historical circumstances which had caused uncertainty about title to this property. But it involved issues as to the different perception of the land as baldios or private property. A ‘thick’ analysis of the case shows the importance of the label baldios, and the specific circumstances in which a protagonist may succeed by attaching the label.

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