Land Ownership for the Preservation of Environment and Livelihood

Hiroyuki Torigoe

Working Paper Series No. 29

Afrasian Centre for Peace and Development StudiesRyukoku University

Mission of the Afrasian Centre for Peace and Development Studies

Poverty and other issues associated with development are commonly found in many Asian and African countries. These problems are interwoven with ethnic, religious and political issues, and often lead to incessant conflicts with violence. In order to find an appropriate framework for the conflict resolution, we need to develop a perspective which will fully take into account the wisdom of relevant disciplines such as economics, politics and international relations, as well as that fostered in area studies. Building on the following expertise and networks that have been accumulated in Ryukoku University in the past, the Centre organises research projects to tackle with new and emerging issues in the age of globalisation. It aims to disseminate the results of our research internationally, through academic publications and engagement in public discourse. 1. Tradition of Religious and Cultural Studies 2. Expertise of Participatory Research / Inter-civic Relation Studies 3. Expertise in Southwest Asian and African Studies 4. New Approaches to the Understanding of Other Cultures in Japan 5. Domestic and International Networks with Major Research Institutes

Afrasian Centre for Peace and Development Studies Ryukoku University

Land Ownership for the Preservation of Environment and Livelihood

Hiroyuki Torigoe

Working Paper Series No.29

2007

Ⓒ2007 Afrasian Centre for Peace and Development Studies Ryukoku University 1-5 Yokotani, Seta, Oe-cho, Otsu, Shiga, JAPAN All rights reserved ISBN 978-4-903625-30-0 The opinions expressed in this paper are those of the author and do not necessarily reflect the views of the Afrasian Centre for Peace and Development Studies. The publication of this working paper series is supported by the Academic Frontier Centre (AFC) research project "In Search of Societal Mechanisms and Institutions for Conflict Resolution: Perspectives of Asian and African Studies and Beyond" (2005-2009), funded by the Ministry of Education, Culture, Sports, Science and Technology, and Ryukoku University.

Land Ownership for the Preservation of Environment and Livelihood*

Hiroyuki Torigoe**

1. Ideas from the Theory of Original Land Ownership (1) Two thoughts Since the 17th century, when the first nation states were established in Europe, the countries that opted for a nation state regime have endeavored to develop and systematize laws. This is quite natural for the nation state, which regards sovereignty as residing in the people and advocates the principle of people’s equality under the law. However, in the process of pursuing this principle, a serious contradiction arose between the western-style idea of modernity and local historical specificity. On a superficial level, the contradiction appears to be a confrontation between modernity and pre-modernity. In fact, however, as shall be mentioned later, it is one between the western style of thinking, which values independent individuality, and the antithetical thought of localities that treasures co-operative relationships, as well as a contradiction between the rules of the state and the rules of livelihood. Japan, which began its process of modernization fairly early, and has joined the group of advanced countries, is suffering from this contradiction. Particularly when development and environmental problems reached rural communities, farming, mountain and fishing villages, a need surfaced to rapidly develop a theoretical explanation different from the juridical system founded on western modernization, thereby working out a policy under this theoretical account. This paper is designed to encourage the formulation of such a policy, with a particular focus on the concept of property based on the model of life environmentalism. For a precise account of this model, please refer to “life-environmentalism” in the Blackwell Encyclopedia of Sociology. (2) From community theory to environmental problems Legally granting the so-called “right to the environment,” one of the new rights of the 21st century, to people facing serious environmental problems would make an enormous

* The original Japanese paper for this working paper was one of the materials Research Group 4 of Afrasia Centre read in discussing ideas for an International Symposium concerning "commons"-related conflicts scheduled in Fiscal Year 2008. Due to its importance in understanding the nature of "commons" in Japan, Research Group 4 decided to have it translated into English and published as one of Afrasia Working Papers so that it will be introduced to a wider circle of English readers. We would like to express our gratitude to Professor Hiroyuki Torigoe who kindly agreed to this arrangement. ** Professor of School of Human Science, Waseda University, 2-579-15 Mikashima, Tokorozawa, 359-1192, Japan.

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contribution to the solution of environmental problems. However, this new right has not yet to be recognized as a legal precedent in Japan. The recognition of such a right is difficult because the perspective of the “right to the environment” is inconsistent with the legal systems of nation states that have adopted the capitalist system. It is difficult qualitatively to reconcile it with the current system of civil law, which is based on private property rights. To begin with, the “right to the environment” is based on the theory of a “shared environment,” under which “the environment is to be shared by the community, and the exclusive use of the environment without the consent of the co-proprietors is illegal” (Kobayashi 1976: 76). By contrast, one of the major elements of private property rights is the right of exclusive use. Many jurists who are trying to establish the “right to the environment” appear to be searching for its ground in the right to existence and the right to the pursuit of happiness, as stipulated in Articles 25 and 13 of the Constitution of Japan. However, as long as the foundation is sought in the Constitution, the right to the environment will continue to remain a right similar to a manifesto. Therefore, it has not yet been established as a private right in the sense of a right recognized in private law. As its result, it remains in a phase where “it has a long way to go before it can be consolidated as a legal right, meaning that a case can be filed in court for environmental conservation with a demand for a court decision to forbid corporate and other activities” (Asahi Shimbun May 2, 1985). Such efforts by jurists to substantiate the right to the environment are certainly commendable. However, given the failure of their efforts to produce significant results, it seems that efforts from other perspectives than jurisprudence will be required. In short, this paper seeks grounds to substantiate the right to the environment from a perspective that is different from the above-mentioned juristic trend. This different perspective refers to a method to find a foundation based on the theory of original property, one of the accomplishments of community studies in Japan. Meanwhile, the theory of the community (Gemeinde) and environmental problems seem to be far apart from one another. A community, especially a rural community, is usually referred to as the mode of production that underpinned society before the introduction of the modern capitalist system. On the other hand, the environmental problem is primarily a social issue that has emerged with the maturing of the capitalist system. There is a significant time lag between the two. However the two are closely related, as I learned from my fieldwork on the environmental problems of Lake Biwa during the past few years. In fact, Tokutaro Sakurai, an anthropologist who took part in research on pollution in Minamata, Kumamoto Prefecture, has developed an interesting discussion on the relationship between the two.

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Sakurai divides Minamata City into three zones: municipal, suburban and fishing villages. Given this zoning, he points out that the community movement in the first two zones collapsed at a fairly early stage, while the fishing village district became the center of the struggle, launching tenacious campaigns. Based on this fact, he puts forth the following problematic. Only the district that remained solid as “communities” was able to function as a stronghold of resistance. Given this, the argument made by today’s “so-called modernist scholars” that “for a modernized civil society to be consolidated, all preceding feudal communities must be completely scrapped” implies the need for the dissolution of strongholds of resistance. How can this be justified? Sakurai raised this issue (Sakurai 1985: 221-258). At that time, I was engaged in fieldwork on the coast of Lake Biwa and felt fully empathetic with Sakurai’s assertion. I found his argument refreshing, as I knew no other researcher before who was so articulate in presenting such points.1

At the Society for The Study of Rural Community held in the same year as the publication of Sakurai’s study, Yoshiteru Iwamoto gave a report on “original land ownership” (Iwamoto 1985: 7-13). As I will detail later, “original land ownership,” being a concept that presupposes a community, has some continuity with Sakurai’s study. Iwamoto’s report was a rich source of insights, as I had taken an interest in environmental problems. Relying on Iwamoto’s argument, I came to think that the purport of establishing the right of environment could be substantiated through another approach. In other words, I intend to rely fully on the research results of two scholars, namely, Iwamoto and Kichiji Nakamura, who preceded him. 2. The Inherent Meaning of Land Ownership (1) The rights of the people who cultivate land Land, before executed in the form of “property” by people, is simply a part of nature. It is commonly called “land” (daichi). Property becomes a valid concept only when

1 How to appraise communities in the context of the environmental problems of Japan is becoming a fairly important question for researchers engaged in field studies. This can be inferred from the following statement by UI Jun, who conducted a joint research on Minamata disease. He wrote:

It was fortunate that nearly every member had a good track record in the study of the nature of traditional communities and as such was able to make a certain level of evaluation when we began our joint research. Complete negligence of the roles of the community was conceivable as a research method, but I don’t think such a method would help us understand the reality of Minamata. When we compiled Japan’s pollution history in a project sponsored by United Nations University, the most heated debate within the group was on the evaluation and interpretation of the traditional agricultural communities, and in a company town community like Minamata, it was community-oriented thinking that determined the way people took action (Ui 1985:70-71).

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multiple individuals compete for property rights and the other competitors consent to recognize the right. Some researchers call ownership (shoyu) at this stage “possession” (senyu), but the difference is not significant at this point. What is important is the fact that property is premised on the intervention of humans toward nature, but what makes ownership valid as ownership is the “social relations” among multiple human beings comprising the self and others. More precisely, if a single person faces nature, the idea of property is not invoked, as there is no need to claim ownership. Ownership comes into effect only through social relations of competition and compromise (including coerced compromise) with others over land. The types of social relations may differ due to various conditions in respective localities. These conditions can be historical, cultural, economic and ecological. In other words, land ownership in Japan, which is our major concern, may have patterns unique to Japan underpinned by specific conditions (“unique to Japan” to the extent that they are not universal enough to be generalized throughout the world, despite the observation of similar patterns elsewhere). Let us study this point from the insights of Kichiji Nakamura, a scholar of economic history, who is well known for his empirical study on the inherent characteristics of Japanese communities. Nakamura wrote a very interesting essay in 1947, entitled “Tagayasu hito no tochi” (land of cultivators). Soon after the end of the war, when Nakamura wrote this essay, there were frequent incidents of “expropriation of tenanted land” by landowners around the country. Of the various reasons behind this, the major one was the planned revision of the law on farming land. The revision was designed to increase the number of independent farmers. Absent landowners, who under the new law would be forced to sell all of their land to their tenant farmers at a low price, apparently rushed to seize their tenanted land in an attempt to become independent farmers themselves. Here arises a question. Nakamura introduces the following story from a village in Fukushima Prefecture:

This region was no exception, and there were rampant seizures of tenanted land. Not every seizure can be expected to be settled peacefully. Troubles erupted as a matter of course. It was early spring. The quarrels continued with no end, as the time for spring plowing approached. The tenant farmer would begin to cultivate the land. The landowner, feeling pressure, would also begin to cultivate the paddy field. Plowing involves several work stages and cannot be completed easily. As such, the two would compete to reach the field earlier than the other. Watching for a chance when the rival was not in the field, each would try to get work done in the field. I

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heard about such troubles last spring and apparently some of them continued till summer. I read in the paper about one incident where, when the time came for rice planting, the landowner removed the seedlings his tenant farmer had earlier transplanted, and began planting seedlings himself.

Nakamura then presented an interpretation of this story. “This story implies that if you cultivate and plant, you are entitled to earn the crop from the land.” Nakamura points out that in times of peace, the logic goes: (a) this is my land; and therefore (b) I cultivate it myself and earn the crop. In this story, however, which did not take place in peacetime, the logic was reversed into (b) I cultivate the land myself and earn the crop; and therefore (a) this is my land. He further advances the following argument:

In this case, the property rights over the land lie definitely with the landowner. However, the tenant has long sustained his livelihood by cultivating the rented land, and a tenant’s right and cultivation right have arisen. Having property rights do not mean that one can take away the land freely without consent. There would be no problem if property rights were a sole and absolute right. In fact, that notion was long prevalent. But in response to the one-sided nature of that notion, the rights of tenancy and cultivation were created and developed. It makes sense because even tenant farmers should have the right to subsistence. The right of subsistence must be respected and protected. Disputes involving the expropriation of land occur because the relationship (among these rights) is still unclear. In other words, the disputes demonstrate that there is ambiguity about whom the ownership of the land belongs to. Given such circumstances, the problem cannot be solved by the notion that ‘this is my land and therefore I cultivate.’ Another notion enters the scene, namely that those who cultivate earn the crop.

Nakamura then offers an important reflection: “In the first place, we must reflect, even once, upon whether or not the current status of land, being owned by somebody and leased to tenants for cultivation, is an inherent nature of land.” This reflection leads Nakamura to his analysis of the ancient land ownership system,2 under which a distinct problem is shikimaki (double seed planting) (Nihonshoki/Chronicles of Japan 720). Shikimaki means planting seeds where seeds are already planted. It was a heavy offense, and there are two theories about why it was so. One theory, dating back to the 12th century, claims that once seeds are planted, the land 2 They are Kodai nihon no tochi shoyusei nitsuite (Land ownership in ancient Japan) (Nakamura 1967) and Kodai nihon no tochi shoyuu hosetsu (Supplement to land ownership in ancient Japan)” (Nakamura 1973).

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belongs to the person who planted them, and that replanting seeds would trigger a dispute over the ownership of the field. The other theory emerged around the 16th century, and claims that the replanting of seeds would impede the sound growth of the crop due to exuberance. Nakamura opts for the older theory. He carefully describes the rationale for his choice in a 1967 article (Nakamura 1967), which I will refrain from introducing in this paper. Based on this choice, Nakamura summarizes historical changes in land ownership as follows:

During the age when the old story took place, presumably there was no defined land ownership. Land belonged to groups of people such as a village community or an ethnic group, and every year the families in the village would cultivate it. It seems that families received an amount of crop equivalent to the extent of their cultivation. It is quite natural that things were worked out like this since land ownership did not belong to each family, though families did exist. And gradually, the land came to be considered to belong to the family that cultivated it. This is how land ownership developed, and yet, over time, there were a variety of property rights and the end result was the establishment of private property rights in the 19th century, when the modern age began in Japan. Land property rights as we see them now are less than a century old, dating back to the Meiji Era (1868–1912).

However, he stated that this new “private property right” since the modern era

is not necessarily correct. The challenge of protecting tenant farmers and the right of tenancy emerged. This problem arises because two rights rest with one piece of land, in a manner of speaking, just as we have seen in the conflict in the above-quoted old tale. It is quite interesting to note that in ancient times when the concept of rights did not yet exist, the custom was that the crop belonged to those who labored, while a similar notion appeared that those who cultivated were entitled to the crop, when the concepts of property and tenant rights prevailed given the development of rights. The stories are similar and at the same time different. It is even more interesting to note that at the time of the two stories, one from the age of myth and the other from the modern era, are far apart in time, with a couple of thousand years lying in between.

Nakamura here argues that the view of land ownership, though superficially subject to the restrictions of the legal systems of respective eras, has not changed in principle. It is an argument that land property rights basically belong to those who have the right to cultivate the land. Therefore, if I may summarize, his assertion is that even when “private property” is legally prescribed, as has been the case since the modern age, the

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right to cultivate functions to underpin the land, and from a functional perspective the right of tenancy has been admitted as a right that restricts the property right of the owner of the land. (2) Problems of original land ownership Following Nakamura’s work, Yoshiteru Iwamoto further pursued studies in this area. Nakamura took an interest in the above-mentioned subject because such customs are observed not only in “ancient” times, but he saw a similar instance of shikimaki in a “story of a village in Fukushima Prefecture” in the post-World War II period. Similarly, Iwamoto’s interest was triggered not because he was interested in the “ancient” world, but because he too “faced a fact similar to the one cited by Nakamura, when studying the history of the peasants’ movement of Yamagata Prefecture” (Iwamoto 1980: 47). He further mentioned that he developed an interest in the unbroken line of views of land ownership, when he learned that a cultivator carried out a similar act in 1952, on land that had been used for a former airport compound in Yamagata City. Iwamoto, however, renamed Nakamura’s “cultivation right,” which is also expressed as the “right of subsistence” on other occasions, as an “original land ownership (right).” More specifically, he writes:

historical data indicate that as early as the 11th century, whether or not seed planting was conducted at the proper time was an important matter. Further, a 14th century report reveals that unlawful rice reaping was a crime. This also indicates that the property rights over farming land are closely connected with who cultivates it first, and apparently here lies a problem of original land ownership. This in fact also applies to the modern age (Iwamoto 1985: 9).

He then introduces and analyzes the above-mentioned problem involving the vacant land that was formerly an airport compound. In discussing land ownership, Iwamoto argues that “cultivation rights exist apart from both property rights and tenancy rights” (Iwamoto 1985: 9), and he combines this cultivation right with original property. By doing so, he paves the way to discuss cultivation rights in the context of the general theory of the economic history of communities, not as a problem specific to Japan. As is well known, “original property” (Ursprungliches Eigentum), a term used by Karl Marx when analyzing the precise meaning of property in “Pre-capitalist Economic Formations” and other works, is a concept that is often used in debates over the community in Japan. In a nutshell, original property is community property. In other

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words, each producer in the community owns (possesses) the means needed for production. In other words, producers are not yet alienated from the means of production. Marx uses it as the term to characterize the three different modes of ownership and labor, naming them Asiatic, Romanic and Germanic. A special focus on “labor” among other factors may be the characteristic of this original property. Based on the term original property as used by Iwamoto, some significant comments were made in the discussion within the Society for The Study of Rural Community (Iwamoto 1985: 10-13). Rin Abiko summarizes: “On one hand, forces continue to undermine original property, but original property persists. Modes that restrict original property emerge in accordance with the changes in the times.” Another participant states that original property is referred to as “the state of settling down and possessing” and that “possession represents an actual condition directly linked to labor” (Takashi Hosoya). Hosoya’s view that the “original relationship between labor and property emerges as it threads its way through the oscillation of the private property system” is quite inspiring in light of our topic. In summary, land becomes owned (possessed) basically by those (people or organizations) who devote labor to it. Normally, land needs to be managed. The management of land, including the function of maintaining its productivity (e.g. through the preservation of the water source), also has a function of suppressing competition among the people involved in the land and maintaining order among them. This function was traditionally entrusted to small organizations (e.g. blood kin or neighborhood organizations) or communities, and sometimes to institutions larger than the communities (e.g. the state). If this right of management is called ownership, with a focus on the managing side, we can say that those who devote labor and cultivate have cultivation rights. And this right implies the original nature of property in the sense indicated by the discussion at the Society for The Study of Rural Community.3

3 I use such a circumferential expression from the following reasons: the earlier cited “Pre-capitalist Economic Formations” of K. Marx, though being a significant discussion that may well be described as a springboard for community studies, was never published by Marx, and in fact was not intended for publication in the first place. It was merely a collection of notes to help Marx put together his ideas. As such, there are many inadequacies and discrepancies in the logic and arguments, leaving room for diversified interpretations. The ground upon which Marx substantiates the concept of original property is not clear. As such, it apparently allows researchers to adopt diverse interpretations, depending partly on which documents by Marx are used. For example, Iwamoto writes as follows: “Under original property, land is owned not privately but by a community called mura (village) or uji (clan), and order was kept in using land, in which only at the time of farming, a certain plot would be seized and cultivated by the cultivator, namely, the ie (family), and this seizure would be dissolved when the harvesting was over, and the land would again be owned by the community until it was distributed again in the following year” (Iwamoto 1987: 24). On the other hand, Seishu Tanno writes as follows, relying on Marx’s Grundrisse (Outlines for the Critique of Political Economy): “To make the object world ‘mine’ is ‘no more than a human being’s relation to his natural conditions of production as belonging to him, as his, as presupposed along with his own being; relations to them as natural presuppositions of his self, which only form, so to speak, his extended body,’ and Marx calls this act of relation ‘original property’” (Tanno 1983: 52). Tanno

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In modern society, where order is maintained based on the modern civil law system, those who manage land are, in principle, no longer blood kin or neighborhood organizations but individual people. This is done through private property rights. The private property rights seem to have all the rights relating to land. Many have this misunderstanding. But the reality is different. If labor is devoted to land, property rights in the original sense (e.g. cultivation rights) are indeed retained by the land. In the following section, I will discuss how the key points of this section, as presented above, relate to the right to the environment. 3. Rights of Community People (1) Duality of land ownership Scholars of economic history such as Nakamura and Iwamoto have demonstrated that traditionally, two forms of ownership existed in our country and continue to function even today. This may seem like an extraordinary claim, but they are not alone in making it. Similar arguments have been presented in sciences dealing with the present time, such as rural sociology and agricultural economics. Legally speaking, various parcels of rural communities are either privately or collectively owned. Housing and farming lands are usually privately owned, while forest land and wilderness are often owned in common. “Collective ownership” in this context is different from the collective ownership of the “village (community)” in the pre-modern age, and means that several persons, under the current civil code, share the ownership of a single thing. Therefore, those who share the ownership have the discretion to dispose of their equity or to demand its breakup. In other words, collective ownership under the current civil code is based on the premise of individual ownership and is merely another version of individual ownership. Privately owning a certain tract of land, under the current civil code, implies the right to use it freely as well as the discretion to dispose of it freely. The logic goes as follows: “It is my land, and I have every liberty to dispose of it in whatever way I like.” This is indeed the prescription of the current civil code. However, rural sociologists and agricultural economists have come to realize that in reality there is more land than one might expect that cannot be disposed of freely. Land in rural communities, even if it

views the act of the subject of labor related with the conditions of production as original property, and the view of my paper is closer to Tannno’s usage in that labor comes to the fore.

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privately owned, cannot be traded freely or cannot be rezoned arbitrarily the owner. The community is involved in this kind of change. As far as the trading of the land within the community is concerned, it is considered appropriate to ask the community (village) for its opinion and in reality, people would not consider transforming a rice field into a housing lot without asking the community. Akira Kawamoto, a rural sociologist says:

The legal power exerted over a piece of land is not limited to private property rights. Beneath the private property rights, one finds functions such as the ownership of families including blood kin, and further down, the ownership of the entire village community. As for the family ownership, even in today’s farming villages, land is still to some extent basic family property. Even in an era when capitalist society prevails, land is a family asset that goes beyond private property in so far as its essential quality is continuity. In the case of a cadet family, the land received as an estate belongs to the family including both head and cadet families and the kin, rather than to the cadet family alone. The estate allocated to the cadet family is subject to the management rights of the head family that represents the entire family. With regard to village (mura) ownership, the village is an association of families and the livelihood of families basically cannot be secured without it. Therefore, the use of family property land, whether it is privately owned or not, should not bring disturbances to the permanent continuation of the village as a whole, while the family and family property gain continuity only in so far as the permanent continuation of the village is secured. In a nutshell, the village land is owned by the village as a whole. This land includes not only common land or communal land, not just roads and irrigation channels. It also applies to privately owned land where apparently the principle of private property of capitalist society prevails. Indeed, the land of the village as a whole belongs to the village as a whole and my land is our land, the land of all the people of the village (Kawamoto 1983: 243).

As pointed out by Kawamoto in the preceding quotation, focusing on the fact that the rural community gets itself involved even with privately owned land within the community, rural sociologists and agricultural economists call the rational of this right of the community “general ownership.” In other words, although lands within the community are either individually or collectively owned by individuals, the community places a net of “general ownership” over these lands. It may be called the “duality of land ownership” combined with so-called ownership (Torigoe 1985: 98-100). This “general ownership” is a contemporary version of original property. It is worthy of

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attention in that it is functioning even under the current civil code.4 (2) Cases of farming land and forest land I was able to fully accept the argument of Nakamura and Iwamoto since I have actually witnessed rural communities where cultivation rights prevail over property rights in this modern age. In the historical data used by Nakamura and Iwamoto, the “original relationship” of “ownership” emerged in the event of a contingency, giving us a glimpse into original property. On the other hand, in rural communities on some of Japan’s southwestern islands, where I conducted field research for more than a decade, the “original relationship” was clearly in the foreground even in normal times. For example, the land of the entire island of Kuroshima is divided between kaminji (land of the gods) and tokoronji (land of the place). Kaminji literally means “land of gods” and consists of wild woods that are not in use. In the modern age, they became government-owned land. Tokoronji means the land of tokoro (place), referring to the village or the people. This tokoronji is further divided into tokoronji (in a narrow sense), kuminji (neighborhood land) and watakushinji (private land). These terms refer, respectively, to community-owned, neighborhood-owned and private-owned land respectively. Each family has use rights (cultivation rights) over these three types of land. As such, property rights are established in a clear-cut manner over every piece of land within the community. As mentioned earlier, here priority is given to use rights (cultivation rights) over property rights. This also applies to the family-owned watakushinji, which presumably has the most clearly-defined property rights. I quote from an earlier paper of mine, which gives a more detailed account on this point.

[In these islands,] the land system basically places the use rights at the core of the thinking. Basically people think of the land as owned by the islanders as a whole. A person discovering a desirable tract of land can cultivate it personally and for several years it becomes his or her land. (For slash-and-burn cultivation, the felling is undertaken collectively, and for settled agriculture or shifting cultivation that is close to settled agriculture, the principle is that people cultivate them individually

4 The revaluation of traditional property rights signifies a clear-cut departure from the footing of the civil law scholars, whose objective is to thoroughly consolidate “modern” property rights. For example, Takeyoshi Kawashima, a leading civil law scholar, writes in his Shinpan: shoyukenho no riron (Theory of law on property rights: new edition) as follows: “My stance involves resolving realistic problems, namely, to sublate the demodernized relations in the Japanese society we actually live in, particularly in farming villages” (Kawashima 1987: 3). Kawashima likely takes this position because he seeks the theoretical establishment of civil law as a “law of a modern civil society, namely, the law of capitalist society” (Kawashima 1987: 318). His position is different from the interest of this paper.

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with the help of the others. As a custom, if the land happens to have a junior owner (the senior owner is the community), permission is required from the junior owner in using the land, and when the land has no junior owner but was used in the recent past, the protocol is to make a courtesy visit to the former user of the land to gain his or her endorsement). During this period, the individual has a right of use over this field. However, as the individual exercises this right over the field for many years, both the user and others increasingly tend to think that the user “owns” the land. The duration of use is a question of degree. There is no rule that use of the land for a certain number of years leads to the abrupt approval of “ownership.” Indeed, land for housing is often used by the same family for nearly a hundred years. Some land continues to be used as vegetable gardens for a relatively long period. In contrast, quite a number of tracts are only used for a few years. In other words, for land where use right prevails, ownership is a matter of degree. With regard to the property rights, the degree of ownership varies a great deal among lands, ranging from those where strong private property rights exist to those where there are hardly any. However, under modern land law, land property rights either exist or do not exist and there is no idea of degree (Torigoe 1982: 67-68).

In these islands, such a land system, though subject to some changes, persists. Such a land system, as a matter of course, has become an exception in Japan as a whole. However, we know, even before being informed by Kizaemon Ariga,5 that it is worth noting that exceptions do include the essential quality of majority representatives. Given this understanding of Japan’s traditional land ownership, there is another problem to address. It is about land categories. The land I have discussed so far belongs to the category of farming land. I have analyzed farming land vis-à-vis the communities (villages) that make up the land. And yet, our livelihoods are not only carried out on farming land alone. Under traditional diagrams, the housing lot is the base point of the livelihood, while farmland is a place for production, with mountains, forests, fields, rivers and the sea being outside the farming land. Even if individual property rights are established on these lands, the owners’ degree of monopoly over these lands varies. Exclusivity is the strongest with the housing lot, and weaker with the forests, wilderness, riverbanks and seashores. At present, mountains and forests in Japan are without exception owned by somebody or other. When we go to mountains, forests or fields, however, we often pick up berries or rare things and bring them home. This is not how we behave in a housing lot. When we do this, we are following, albeit subconsciously, Japan’s traditional land ownership system, and are not to be blamed.

5 For this, see Torigoe, ibid. 1982: 394-395.

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Sanson seikatsu no kenkyu (Study of livelihood in a mountain village) published in 1938, introduces a number of examples of the usage of hills and mountains in different regions throughout the country, including the following: The trees in the mountains and forests can be used freely to build a house (Kagoshima Prefecture); The kinds of trees that may be used are restricted (Mie Prefecture and others); The quantity of trees to cut down is restricted (Oita Prefecture); The timing when trees can be felled is restricted (Ehime Prefecture). In many places, products of the mountains and fields can be harvested freely, including grapes, conkers, Chinese yam, fiddlehead fern, bamboo, etc. (3) Rights based on the original nature of property What conclusions can be drawn from these examples? As far as land goes, those who work on land are basically entitled to it. If it is farming land, those who intervene in the land through farming are entitled to the cultivation rights to that land. Cultivation rights are definitely not the same as tenancy rights, which are in a sense a “leftover” of property rights. This has been demonstrated by studies on original property in the community as described in the preceding section. However, as the existence of the community is essential for the existence of original property, it is more appropriate to use a different term in conducting an analysis focusing on the present. Therefore in this context I use the term “rights based on the original nature of property.” Cultivation rights are an example that can make it easier to understand this. These “rights based on the original nature of property” are in effect in every land category. In the case of a housing lot, those who intervene in the land by “living” on it are clearly limited, usually to a family. Therefore, the “ownership” completely overlaps with the “rights based on the original nature of property,” making it difficult to distinguish between the two. In contrast, many people intervene in forest land, wilderness, riverbanks and seashores, and therefore an unspecified number of people are entitled to the “rights based on the original nature of property.” In some cases, those who own the private property rights may be very different from those who are entitled to the “rights based on the original nature of property.” In this regard, however, certain rural villages (communities) have traditionally continued to intervene in such forestland and wilderness for the purpose of obtaining manure. In this case, the community members have a high degree of “rights based on the original nature of property” (shared ownership in the village community). Even in this case, non-members of the community can be entitled to such rights as long as they have intervened in the land in one way or another.

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Why does this structure of land ownership exist? The answer is quite simple. As appropriately demonstrated by Nakamura, using the term “subsistence rights,” people intervened with the land to “live” and took sole possession of the land, using “rights based on the original nature of property.” “Rights based on the original nature of property” are sacred and inviolable, because livelihood itself cannot be sustained if it is violated. In principle, it has always been protected in Japan, as in other places, because it was part of the natural consideration adopted by the rulers of the country. I state that it has been protected “in principle,” because history shows that there are indeed cases where the principle was not observed. Looking back at history, we may ask ourselves why peasants and fisherfolks, who wanted peace, at times resorted to such conflicts. The answer may be that these conflicts broke out when their “rights based on the original nature of property,” meaning their right of subsistence, was violated. Violations of other rights by the rulers can be tolerated in many cases. However, when the “rights based on the original nature of property,” which people are inherently entitled to, are denied, what option is available for them other than resistance? The case of Minamata was a recent example. Among the people living in the Minamata area, those whose “rights based on the original nature of property” were violated fought back. What will happen to the fisherfolks, if they, who make a living from the sea, are deprived of the sea? It is quite natural for fishing villages to become the center of resistance. I hope that my readers now understand my intention to link the “rights based on the original nature of property,” developed from the suggestions I received from original property rights, to the right to the environment. Despite historical changes in the legal system, the principle of recognizing “rights based on the original nature of property” have always underpinned the legal system of our country and even today, this principle is still in effect. At times, a strict adherence to law is demanded by those who have forgotten this principle, especially those living in urban areas.6 In fact, this is an outrageous act that forgets the nature of the “law of the time.”

6 Most recently, when I visited a farming village in Osaka Prefecture, a village leader, a patriarch, complained about annoying people who have no common sense, recounting the “annoying” story as follows: Normally the village had common forests, such as mountain forests. They were common forests “owned by the village.” However, after the land-tax reform in the Meiji Era, the term “owned by the village” was prohibited. Having no other choice, five people who were leaders of the village at the time jointly registered the land as “collectively owned” by them. But the fact that the land belongs to all the members of the village and not to the five leaders, remained unchanged because their names were used only for the sake of the convenience of registration. However, it turned out that the descendant of one of the former leaders, who had moved to the city, claimed that since his great grandfather was one of the five co-owners of the land, one fifth of the land was legally owned by his family, and he expressed his intention to submit a claim. This is an example of a legal argument that ignores the “reality of livelihood.”

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Violations of the environment are violations of the livelihoods of those who live there (i.e. who have continued to intervene in the area). Such violations can be contested as violations of the traditionally established “rights based on the original nature of property.” Among the “rights based on the original nature of property,” I use “right to the environment” to refer to the aspect involving environmental preservation. There is value in substantiating the right to the environment based on the various rights provided by the Constitution, but it is also important to realize the fact that the right to the environment is nothing but a “right based on the original nature of property” that already exists. Meanwhile, the modern civil law system frequently comes into conflict with the inherent local rules historically accumulated by each ethnic group and locality. There are two conceivable reasons to explain this conflict. Firstly, the modern civil law system, to begin with, has been developed based on the local rules historically accumulated in Europe. Given this, it is not unnatural that they will differ from other local rules. Secondly, the modern civil law system is a rule of nation states, and again it is quite possible that they will differ from local rules. Nation states formulate rules that demand that the general public behave rationally and efficiently. On the other hand, localities are likely to form a logic of livelihood based on compromise. “Compromise” in this context is not used with any negative nuance. Each locality intrinsically has small conflicts and involves exploiting and being exploited. In order to minimize these conflicts, a logic that links “mutually satisfactory” with “compromise” is needed. From these two reasons, many of the countries today adopt dual rules and as we have seen, Japan is not an exception. Both these rules are needed and therefore policies should be developed in a way that capitalizes on the two rules rather than by obliterating either of them. Both the state and livelihood need to be viable. Confrontations exist even in the United Kingdom, an advanced European country, where such confrontations might appear rare. The National Trust movement, established for the purpose of environmental protection, is a good and successful example of the minimization of confrontation. As awareness of private property increased there, privately owned lands were increasingly fenced off and taken out of the common. The National Trust movement was launched by the campaign to restore the right to walk in the countryside, and then developed into a movement to protect the landscape. By adopting the idea of a public trust, it has circumvented conflict with the private property system (Hayashi and Egashira 1984: 3). In Japan as well, some local governments have used their administrative authority to introduce forms that do not come into conflict with the state’s law, and some villages are

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making efforts to ameliorate the impact of the state’s laws by attaching importance to their assembly resolutions. The awareness of the need for both of these rules, rather than such schemes, is of vital importance. As long as such an awareness is retained, localities will be able to find a solution unique to each of them.

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References Hayashi, Michihiro and Kunimichi Egashira. 1984. Rekishiteki kankyoken to shakaiho

(Historical right to the environment and social law). Kyoto: Horitsu-bunkasha. Iwamoto, Yoshiteru. 1987. “Hongenteki tochishoyu to ‘mura’ no tochiriyo chitsujo”

(Original land ownership and land use order in ‘mura’). Sonraku Shakai Kenkyuu. Vol. 23. Tokyo: Ochianomizu Shobo.

. 1985. “Hongenteki tochishoyu wo megutte” (On original property). Kenkyutsuushin. Vol. 141. Tokyo: Sonraku Shakai Kenkyukai.

. 1980. “Tochishoyu no rekishitekiimi sairon” (Review of the historical meaning of land ownership). Yamagataken Minzokurekishi Ronshu. Vol. 3. Tsuruoka: Tohoku Shuppan Kikaku.

Kawamoto, Akira. 1983. “Murano ryoiki to nogyo” (The realm of mura and agriculture). Tokyo: IE-NO-HIKARI Association.

Kawashima, Takeyoshi. 1987. Shinpan: shoyukenho no riron (Theory of law on property rights: new edition). Tokyo: Iwanami Shoten.

Kobayashi, Naoki. 1976. Gendai kihonken no tenkai (Development of modern basic rights). Tokyo: Iwanami Shoten.

Nakamura, Kichiji. 1973. “Kodai nihon no tochi shoyu hosetsu” (Supplement to land ownership system in ancient Japan). Kokugakuin Keizaigaku. Vol. 21-2.

. 1967. “Kodai nihon no tochi shoyusei ni tsuite” (Land ownership system in ancient Japan). Kenkyu Nenho “Keizaigaku.” Vol. 28-3, 4.

Sakurai, Tokutaro. 1985. Kesshu no genten (Point of origin of uniting the people). Tokyo: Koubundou.

Tanno, Seishu. 1983. Tochi shoyuron (Land ownership theory). Tokyo: Ochanomizu Shobo.

Torigoe, Hiroyuki. 1985. Ie to mura no shakaigaku (Sociology of ie and mura). (augmented edition 1993). Kyoto: Sekaishisosha.

. 1982. Tokara rettoshakai no kenkyu (Study on community in the Tokara islands). Tokyo: Ochanomizu Shobo.

Ui, Jun. 1985. “‘Minamata no keiji’ no shohyo” (Review of ‘Revelations of Minamata’). Kogai Kenkyu. Vol. 15-1. Tokyo: Iwanami Shoten.

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