Property rights and the mystery of capital: A review of de Soto’s simplistic solution to development

Abstract

De Soto argues that formally establishing individually titled property rights releases value that can assist the poor in lower income countries. I argue Soto’s treatment of property rights is overly narrow, legalistic and individualistic. Second, effective property rights do not exist outside other formal and informal institutions. Third, there is no necessary conflict between informal, traditional and communal rights and economic development. Fourth, evidence suggests establishing individual property rights can harm the poor in some cases. Fifth, studies suggest establishing title does not increase access to credit for the poor. Finally, de Soto’s notion of ‘dead capital’ is questioned.

Keywords

property rights de Soto economic development institutions capital low-income countries

De Soto’s (2000) the Mystery of Capital struck a chord in the international development community and maintains its appeal to this day. Receiving ecstatic endorsements from people as diverse as Margaret Thatcher, Bill Clinton, economist Ronald Coase and former UN Secretary Generals, de Soto proposed a remarkably simple and ideologically attractive solution to economic underdevelopment: establishing individually titled property rights. Drawing from historical and other examples from around the world, particularly the North American frontier, de Soto argued that formally titling property released value that can fuel economic development. The poor lack access to the usual channels of banking, credit, borrowing and investment. They are seen to have little or no assets to secure investment. De Soto’s argument, however, is that people in the developing world do possess property; indeed they do so in abundance. They have houses in slums and favelas and squatter and/or customary ownership of land. But this property is held informally – perhaps illegally – and is largely unrecorded. Legal recognition of individual property holdings would allow their conversion into financial assets. The billions upon billions of dollars of this unrealized ‘value’ that lay in this trapped or ‘dead capital’ could then be realized, sold and/or borrowed against to invest in a new economic ‘revolution’. International development effort then should be re-focused on establishing who-owned-what, removing red tape, and formalizing this legal title.

It is a compelling vision that continues to hold the attention of policy makers. De Soto gained international fame and prizes. He was named one of the top 100 intellectuals by Foreign Policy magazine. In 2010 he received the Hayek Medal for his contribution. Perhaps the enthusiastic response is in part the simple elegance of his argument. But he also provides a spirited reformulation and defence of a Washington-consensus type capitalism that had noticeably failed in development terms throughout the ‘lost decades’ of the 1980s and 1990s and continues to be questioned (Easterly, 2001, 2002). It was not neoliberal capitalism itself that had been mistaken in this revisionary history but only its application. More capitalism, not less, was the answer. Nor was de Soto the first or only theorist to note the importance of property rights in the historical development of capitalism and its continuing importance since, and his agenda provides notable support for similar views; and a seemingly implementable policy agenda. North (1998) had noted the importance of institutions in economic growth, including private property rights, as have numerous other writers (cf. Rodrik, 2000). Private property rights are associated with state stability and other desirable conditions (DeRouen and Goldfinch, 2012). Establishing property rights fits nicely into the ‘institution building’ development models promulgated by the World Bank and other development agencies from the 1990s on (Haggard and Tiede, 2011). Indeed there is a large body of work claiming the centrality of individual property rights to economic performance to the extent it constitutes the orthodox approach (cf. Fukuyama, 2004; Norton, 2000; Weingast, 1995).

Despite the enthusiastic response from the international community, de Soto’s compelling vision has not received acclaim from all quarters. In particular, he incited a critical response from the academic world. Drawing on some of these critiques, I will argue that de Soto’s treatment of property rights is impoverished and does not take account of the complexity and diversity of usage and property rights, and their role in development. Second, the importance of other formal and informal institutions in development and in supporting property rights is underplayed. Third, I question the reading of history that asserts establishing private property rights has assisted the poor in all cases. Often the very opposite seems to have occurred. Fourth, de Soto’s claims for the role of title in raising credit for the poor are shown to be falsified in studies across the world. Finally, the notion of ‘dead capital’ is questioned, and I point out that his argument bears similarities to concepts propelling the recent property bubble and financial collapse, and the contested success of microcredit. I conclude that the continued appeal of de Soto’s agenda lies partly in its simplicity and apparent policy relevance, but also in its ideological appeal to certain organizations and individuals.

I De Soto’s conception of property rights and the role of formal and informal institutions

De Soto’s treatment of property rights is impoverished. It is overly narrow, legalistic and individualist (Musembi, 2007). If property rights are not individual rights enforced by a formal state they are portrayed as existing in an anarchistic system. But collective, informal and customary norms and institutions also provide systems of order and exchange (Bess, 2011; Joireman, 2008; Kiddie, 2010; Musembi, 2007). Even de Soto’s own analysis of the North American frontier showed how informal institutions and norms could function and be recognised – even allowing for sale, investment and economic development (cf Harris, 2010; Pisani, 2007). Property rights – commonly defined as ‘bundles of rights’ (and by extension also sometimes bundles of obligations) (Honoré, 1961) – are also not as clearly delineated in practice as they are in de Soto’s schema. The diverse, complex and fuzzy arrangements that exist in a number of post-socialist, African and other societies may not be ideal – but no systems is ideal – and provide for systems of exchange that have not led to economic and other collapse (Berry, 2013; Blomley and Sturgeon, 2009; Brandt et al., 2002). Rights might imply usage of some resources, rather than exclusive use of property, such as the coexistence of pastoral leases with native title in Australia, or the existence of mineral rights (Dorestt and McVeigh, 2012). Property rights and usage rights do not imply exclusive, individual, private rights in all cases, with various forms of usage private, traditional, communal and state ownership coexisting and/or overlapping, albeit sometimes with considerable tension, with public–private distinctions in particular often harder in practice than in theory (Putterman, 1995; Selden and Lu, 1993). Such hard and fast distinctions among communal, collective, public and private are particularly complex in China (Yang, 2012).

Nor do formal property rights exist isolated from other formal and informal institutions, and focusing on them only may miss the bigger picture. Indeed the functioning of legal property rights, more-or-less in the interests of the poor, implies: first, basic rule of law and a functioning more-or-less legal/rational bureaucratic structure and state to establish and register property holdings. Second, capacity of the state to enforce rulings, including functioning coercive instruments. Third, a more-or-less independent judiciary to arbitrate on these issues, and a functioning and more-or-less uncorrupted court systems not overly favourable to the rich. Fourth, a state that is not essentially predatory and/or captured by corrupt elites, and that rules by some degree of consent and legitimacy (DeRouen and Goldfinch, 2012). These conditions are largely absent from much of the less developed world. Persons living absent these conditions may rationally fear that attempts to move their informal and/or customary property to a more formal, visible, and perhaps more easily expropriable basis could see the loss of this property; or they may simply believe formal title will make little difference.

Nor do functioning legally defined property rights and formal institutions exist outside informal institutions, norms and practices (March and Olsen, 1996). They are nestled within them. Indeed, they are unlikely to work without supporting informal norms and institutions, and even less so if they are in conflict with established institutions. Indeed, embedded informal norms and practices of land usage, exchange and development may be more important and even circumvent legal structures, particularly in peasant societies (Zhang and Donaldson, 2010). The centrality of informal institutions is something known at least since Adam Smith’s time, but seemingly needs continual restatement. As Webber (2009: 581) argues

Law is grounded, fundamentally, in the practises of particular societies. All law, even legislation, finds its meaning in interpretive relationship to those practices. To understand law is to understand norms’ relationships of the web of human interaction in a given society.

Simply rolling out legalistic individualist formulations of property rights in conflict with existing institutions, or without other supporting institutions, is likely to create considerable tension.

De Soto’s examples from the North American frontier are apposite here. Settlers did not appear in the frontier tabula rasa, but brought with them cultural and other norms and experience. Informal institutions themselves reflected the experience of more established legal systems and formal institutions in the settler societies of the frontier, with the settler’s norms of respect for more-or-less rule of law, independent judiciary, squatter rights, and self-government brought from Britain and the more settled parts of North America; albeit sometimes developed in oppositional response to them (Harris, 2010; Pisani, 2007). This already existing respect for rule of law and judicial independence, private property itself – but also notions that the state served the people rather than the other way around – may have provided institutions to facilitate property rights (such as squatter rights, various self-governing tribunals and codes noted by de Soto) but also made acceptance of formalization more likely and more effective when the state caught up with the edge of the frontier. The frontier by its nature had property in abundance and the state often encouraged its settlement, not always in retrospect.

As such, it is questionable that the North American frontier experience translates to many developing states, despite de Soto’s claims otherwise, even if we did agree with his reading of history. As noted, the frontier was notable for its apparent abundance of land and lack of formal state authority, peopled by settlers with informal norms and institutions that facilitated property exchange and order. In much of the world, however, the state exists, in various forms, and claims to property are not prior to its existence or spread of its coercive powers. Nor is there necessarily an abundance of property, there are multiple claims to the property that might exist which may reflect centuries of settlement and dispute, and the state itself is often both predatory and ineffective, and rules more by coercion and theft than by democratic legitimacy, legal/rationality or consent. The informal and formal institutions needed to support private property are ineffective, in conflict, or do not exist. Legal title will not protect property from expropriation in the face of authoritarian and predatory states and absence rule of law. State instability where regimes change often through violent and/or unconstitutional overthrow, something not uncommon in many low-income countries, will not similarly respect property rights, however, they are established. In such an environment it might be quite rational for the poor to be sceptical of any dealings with officialdom, red tape and formal records, preferring to keep a low profile out of official eyes.

II Is individual title required for economic development?

There are problems with a focus on just individual title as a necessity for economic development. First, there is not a necessary conflict between traditional, ‘informal’, communal ownership and forms of legal title. Customary rights, traditional and communal native/aboriginal title of course are/were recognised under common and colonial law in various albeit contested ways, unless explicitly extinguished, as legal cases in the new world and elsewhere, particularly Australia, Canada and New Zealand, continually reaffirm (Bess, 2011; Dorestt and McVeigh, 2012; Hickford, 2006). Collective ownership of rural land is recognised in Chinese law, more-or-less (Hsing, 2010). As such communal property and traditional rights do not necessarily exist outside formal legal frameworks. Second, nor is communal ownership and other informal rights and property usage necessarily opposed to economic development or even forms of capitalism, despite the ‘social evolutionist’ bias that implies individual property rights are needed for modern capitalism (Musembi, 2007). In the early nineteenth century New Zealand for example, indigenous Maori tribes traded enthusiastically from their communally-held lands with local Europeans settlers and even across to Australia, and tribes continue to hold communal lands and other property in various forms and with modern capitalist management structures, participating in the economy through ‘tribal capitalism’; sometimes with a considerable degree of success (De Alessi, 2012). Musembi (2007) found little relationship between established individual title and productivity in Kenya. Informal and illegal property provides workshops and sites of business in Latin America and African cities, as they did in development in the past in the now rich West (Crankshaw et al., 2000). China’s tremendous economic development, with its complex, overlapping and fuzzy array of collective, state, private and even formally illegal but tolerated usage and property rights, certainly calls into question a simple relationship between legally defined individual title and development (Yang, 2012). In particular, collectively owned industrial enterprises located in rural areas were a key part of Chinese economic expansion, particularly in the 1980s (Hsing, 2010).

III The poor can suffer from the establishment of individual property rights

Despite de Soto’s claims to provide a reading of history that supports his thesis, there are alternative readings of history as to whether establishing private property rights has assisted the poor. For example, establishing individual title in the late nineteenth and twentieth century did not lead to an economic advantage for most New Zealand Maori, although perhaps it assisted others’ development. Indeed, Maori economic and social disadvantage was accelerated though the process of moving Maori communal lands to individual title through the Native Land Court. Once these (sometimes disputed and nefarious) titles were established, often after expensive legal processes, land was often sold to the Crown or settlers; in some cases to settle the cost of the actual legal proceedings. Indeed, alienation of land from Maori and ‘civilisation’ through establishing individual title was a key function of the Land Court. This, along with confiscations, saw Maori acreage fall from 66 in 1840 to 3 million in 1998 (Bess, 2011; De Alessi, 2012). Establishing individual title from communal lands has been associated with alienation of land of original owners in Kenya and Mali, with little benefit to the poor (De Schutter, 2011; Musembi, 2007). English enclosures from post-medieval times on and Scottish highlanders dispossessed of their traditional lands in the clearances of the eighteenth and nineteenth century, similarly found establishment or assertion of private title could increase impoverishment, inciting resistance and even virtual civil war at times (Bradley, 1987; McDonagh, 2013; Robertson, 1997). Privatization of much state and collective assets in post-Soviet Russia and other parts of the former Soviet empire, which in many cases was simply expropriation by former Soviet officials and their cronies, led to vast fortunes held by the very few, and the relative impoverishment of the very many. Surely the ‘poor’ Native American Indians dispossessed of their lands, exterminated and/or banished to marginal reservations in the American frontier focussed upon by de Soto also deserve some recognition. Establishing various private titles has also been associated with disadvantage to some within customary groups, with elites gaining the greater benefits and in some cases women being excluded (Joireman, 2008). Similar arguments are made regarding the alienation and privatization of some state/collective urban and rural land in China (cf Yang, 2012). Formalizing title might open opportunities for alienation of property to international corporations or wealthier groups, which may move agriculture to large scale commodity production, or change tenure rights in housing, which may not assist the poor (De Schutter, 2011; Manders, 2004). A key question remains then is who benefits from establishing individual title. It could fuel economic development, perhaps. But it may not help the poor at all.

IV Title does not necessarily lead to credit

Perhaps the most devastating critique of de Soto’s thesis is the lack of empirical support for one of his central claims – that title assists in the gaining of credit. Some studies find title might improve investment in one’s own properties and lead to other improvements in life (Field, 2005; Galiani and Schargrodsky, 2010). But a large and still growing body of studies in sub-Saharan Africa, Latin America – and even in de Soto’s native Peru – find little link between access to legal title for the poor and the ability to generate credit (Economist, 2006; Galiani and Schargrodsky, 2010; Gilbert, 1999, 2002, 2012; Musembi, 2007). A number of reasons are posited for this. First, there is a reluctance to risk property and family land as collateral and the poor remain reluctant to take on debt (Lemanski, 2011). Second, even with title, banks are reluctant to lend money to the poor or those with small holdings, preferring to continue to lend to those with income streams and better paid jobs (Economist, 2006; Gilbert, 2002, 2012; Musembi, 2007). Third, informal, family and micro-lending sources of credit not secured on land or property remain more attractive to poor (Gilbert, 2002; Musembi, 2007). Title is largely irrelevant to this. Finally, the transaction costs of establishing title, and even obtaining formal title after it has been granted are often onerous and simply not seen as worth the bother (Manders, 2004; Musembi, 2007). Indeed, title may be more a result of success than its cause, with larger and richer property owners seeking to confirm their already existing holdings, and with the time and/or money to do so. For the poor with limited property holdings it may not make much difference either way, and title may not affect either ability to sell property or raise credit. Indeed, one study found access to credit and property sales decreased with formal title (Gilbert, 2002).

V Dead capital and its role in economic development

The very notion of ‘dead capital’ tied up in property and hence unrealised as a financial asset, has attracted critical attention. As Christophers (2010) claims, there is an element of mystification in de Soto’s approach – even voodoo – where the use-value of property is forgotten, where a clear but untenable distinction is made between different functions of property, and where there is a confusion between rentier and productive value creation (cf Lemanski, 2011). As Christophers (2010: 101) notes:

…the mystification [is]…that there is a clear…and certainly manageable divide between the activity in which the occupiers of a property are engaged…and the property itself. This divide…is actually manufactured in the course of making the argument for financialisation of property, for realising and creating value, indeed without the effecting of such a divide, the financialisation imperative can be seen to lose much of its power. But in imagining this divide, de Soto [is] separating what is ultimately inseparable.

In practice, the poor use their homes and properties as place of living, work and subsistence. To jeopardize these to raise credit that may or may not rise standards of living, may simply not be worth the risk.

There is an unsettling familiarity to de Soto’s argument also, even for those not working in development. It reminds one of arguments that mortgages taken out on existing equity in houses can fuel economic expansion (Brassett et al., 2010). This, when it was done, certainly contributed to the recent property boom in much of the West where housing loans were taken out to buy yet more properties, or spent on consumption, and mortgage debt was securitised, parcelled up and sold on. The wisdom of this was questioned of course when the whole speculative bubble burst, all that supposed value and equity simply vanished, securitised sub-prime mortgages were found to be worthless, with housing estates still standing empty and unsold, and banks and the world economy still to recover. Christophers may be correct to call this value a mystification. Perhaps it would have been better if some of that capital had stayed dead. As such, there is no guarantee that being able to borrow money leads to productive investment in either less developed countries or developed countries. It might just fuel speculation and unsustainable bubbles, or consumption, and create further debt. Indeed, if a parallel can be drawn, such effects have been claimed with micro-credit having: questionable benefits for the poor; fuelled speculative bubbles in some countries; led to banking failures and spent on consumption rather than productive investment, albeit with a high degree of debate in the literature (Karlan and Zinman, 2011; Stoll, 2010; Walker, 2012). Without demand, established and competitive markets and legal frameworks, and some more-or-less functioning capitalism, it seems a large claim to make that small investments in perhaps marginal businesses will suddenly incite a new economic revolution. Of course, de Soto’s claim that there are billions tied up in ‘dead capital’, particularly in the self-built houses of urban slums and marginal agricultural land, is simply rejected by some, with questions regarding the actual market value of many of the properties of the poor in developing countries (Lemanski, 2011).

Finally, the idea that the central problem of development is simply one of access to capital is questioned by the vast aid and loans that have flown into low income countries, with seemingly little effect on economic growth: in some cases with apparent negative effects (Djankov et al., 2008) although perhaps the problem is that this capital does not make its way to the poor and is siphoned off in predation, corruption and incompetence. On the other hand, issues of corruption and governmental incompetence – with a large body of empirical work showing their negative effect on development (Bose et al., 2008) and the possible likelihood these would undermine many of the possible benefits of establishing property rights – perhaps demand the particular and immediate attention of development authorities; even more so than legalistic views of property rights and de Soto’s simplistic vision.

VI Conclusion

To sum, even if we agree, that established private property rights are a good thing at some level, we may not agree on how to establish them, on the ease of their establishment, and of the time-lines involved. We may not agree that they are equally important in all contexts. And we may not agree on the centrality of individual private property rights to development, without taking into account their embeddedness within other broadly supporting institutions, including informal ones and the complexity and overlapping nature of usage and property rights themselves. Indeed, effective property rights might be underpinned by perhaps even more important indicators of development, particularly governance and effective public administration (DeRouen and Goldfinch, 2012; Knoll and Zloczyst, 2011). Sequences of establishing property rights might also be important (Manders, 2004), with other institutions such as a participatory populace, a more-or-less functioning, stable and legitimate bureaucracy and state, rule of law, judicial independence, perhaps democracy, good governance, good public administration, and so on, needed before the establishment of legally defined property rights: if they are to have positive benefits for the poor. Issues of politics, culture, values, resource endowments, income inequality, and the many others that have perplexed development specialist for decades still remain pertinent, with political battles over how property rights are defined, and for whom, likely to affect outcomes and purported benefits. A simple rush to establish property rights might have downsides for development and for the poor, particularly if they are rolled as a ‘one-size-fits-all’ silver bullet without the attention to this complexity and contextuality and the establishment and existence of supporting institutions and a trained and educated public bureaucracy.

Given the impoverishment of de Soto’s conception of property rights, his questionable reading of history, and the empirical falsification of even his most basic claims that establishing individual property rights assists the poor in gaining credit, why does his agenda maintain such a cache in development, particularly for international agencies and think tanks? First, perhaps is its compelling simplicity. It is a simple solution that is easily grasped, and de Soto is masterly in driving it home in his accessible writings. It is a simple solution that seems too as if it can be easily implemented in developing and low-income states. Instead of the messy and difficult business of thinking about resources, industry, business, legal frameworks, what institutions to establish, good governance and democracy, appointing, training and educating public servants, and so on, a development agency can simply recommend that property rights be better established. In particular the vexed problems of land and income redistribution can perhaps be ignored (Borras, 2006). To establish the property rights, we simply need to set up an agency to do it. We can tick the right box, and perhaps gain the requisite consultancy fees. Then we can go home.

Second, de Soto’s approach has considerable appeal on an ideological level. Neoliberal-type capitalism may or may not be a good thing, depending on whom we believe, and perhaps depending on whom we might see it as benefitting. There is at least debate on this, and questions regarding growing income inequality both within and between nations (Alderson and Nielsen, 2002; Castilho et al., 2012; Easterly, 2001, 2002). The lost decades of the 1980s and 1990s perhaps caused discomfort for those who strongly supported the Washington Consensus development agenda, with its ideological roots in neoclassical economics and neoliberal theory, but with questionable empirical verisimilitude. De Soto’s approach provides a much needed reinvigoration and defence of such approaches. That his approach was supported with enthusiasm by such luminaries of the neoliberal right as Reagan, Thatcher, Freidman, and continues to be supported by such various big-business funded think tanks as the Cato Institute, provides at least some support for this claim. It is not capitalism and the neoliberal agenda that is at fault; simply its application. But we should not confuse ideological attractiveness and simplicity for a genuine solution to world poverty and under development.

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