IRGLUS in a post-De Soto era

By Antonio Azuela
OCTOBER 2013

In its new era, IRGLUS’ agenda is more pertinent than ever.  All over the world, cities are both the context and the object of social mobilizations that put into question political orders.  Cities face deep predicaments that legal scholarship has been largely unable to grasp.  That is why it is so important to reflect on the future agenda of Irglus.  In the previous two decades or so, the issue of tenure regularization dominated our debates.  We probably spent too long arguing about Hernando de Soto’s simplistic proposals around the generalization of full ownership titles as a panacea for the urban poor.  Fortunately, we can now declare the De Soto era over, as even World Bank economists are trying to think beyond the individual property rights paradigm.

At the same time, we might be entering a more promising, but equally challenging and even dangerous route: what we can call Ostrom’s era.  After the outstanding American political scientist Elinor Ostrom was awarded the Nobel Prize in Economics in 2009, the concept of “the commons” has entered the global parlance, particularly in relation to territorial issues.  While the concept has been used mainly in the rural context, to understand problems related with natural resources, it is obvious that cities can also be seen as huge collections of common goods.  What is new is that common property regimes, which used to be seen as residual institutions of primitive societies, are now understood and even accepted within the language of mainstream economics and international development organizations.

Without doubt, this new way of looking at “common pool resources” creates new conceptual spaces to think about cities and their many predicaments, beyond the rigid public/private dichotomy that dominates the discipline of law.  Thinking about the urban “commons” may give us the opportunity of new interdisciplinary debates in which law, political science and economics produce relevant insights for the understanding of urban areas as complex social orders.

However, there are also risks with the new legitimacy of common property regimes.  A case in point is water.  In many countries, the idea of state ownership of water is being challenged in favor of considering the property of peasants’ communities.  That sounds fair for agricultural uses, but when it comes to the needs of urban dwellers a potential conflict of legitimate interests arises.  On the one hand, the success of a common property regime rests on the fact that the community is able to “exclude” others from access to a resource.  On the other hand, access to water in urban areas is nothing less than a fundamental right that is central to the right to the city.  Land is another obvious example.  Many of us witness situations in which rural communities located in the periphery of metropolitan areas develop exclusionary strategies vis-à-vis urban settlers.  This is only one of the many challenges that IRGLUS faces in its new era.

Urban Law Lab