LOCAL RIGHTS IN LAND

Three brothers in late middle age headed the household when I was visiting it, during fieldwork in a town near Kano in 1996 and 1997. I shall call them Kabiru, Audu and Idris. About seventeen adults lived there, on and off: the brothers, their wives, their children, and the wives and children of married sons. The brothers’ grandfather had been quite wealthy, but he divided his extensive landholdings among a large number of children. Even so, the brothers’ father, Umaru, inherited four farms, which made him one of the wealthier farmers in town. Umaru had only one wife, and thus fewer children. After their father's death, the brothers remained in the house where they had lived with their parents, while the sisters lived with their husbands. During Umaru's lifetime, the brothers worked on their father's farms, and Umaru also gave each a plot to farm for himself. They spent the first part of the day working on the family farm, but after the early afternoon prayer each could devote his attention to his individual garden, whose proceeds were his own to allocate. Because they worked for their father, the brothers could also depend upon him for their subsistence and that of their families. Umaru kept a granary to store the harvest from his farms. Meals in the family were prepared communally from these provisions. As Umaru and his wife aged, however, the cooking group split up, and the wives of Kabiru, Audu and Idris cooked separately, taking it in turn to cook for their parents-in-law.

Upon Umaru's death in the late 1970s his farms were divided between the brothers and their two married sisters. Umaru's farms were divided into eight shares, of which each brother inherited two and each sister one, in accordance with the rules for succession in the Maliki school of Islamic law. Umaru's death represented a watershed for the household. Most immediately, the acreage whose produce was available to people living in the house was reduced, since the sisters’ plots now fed their own households. The brothers also quickly ceased their communal efforts during the first part of the day. Each instead devoted attention to his own two farms. At the time of Umaru's death each brother also had sons approaching maturity. These sons for the most part remained living in their fathers’ houses, assisting with work on their farms. However, Audu's middle son worked as a labourer and lives in Kano city, while Idris's youngest son was an early adolescent and away at Qur'anic school.

In contrast to Umaru's practice when they were young, the brothers did not give their sons plots to farm individually. Given the substantially smaller size of their holdings, this would probably not have been practical. When compared to other farming households in town, the brothers were poor but far from destitute. The reduction in total acreage available to members of the house and the increase in the number of mouths to feed was partly offset by their fields’ increased productivity because more labour was available to invest in cultivation. The brothers and their sons intermittently engaged in wage labour, especially in the dry season, but their primary economic activity was always farming. Better-off relatives also provided the family with some assistance.Footnote ⁴

One should be clear about the nature of the dilemmas the brothers faced. They were poor. They were poorer than their father had been, and he in turn was poorer than his own father. However, their grandfather's greater number of farms was as much a symptom of his wealth as its cause. Land has become increasingly scarce in town since the grandfather's days, and getting a farm is harder and more expensive than it used to be. Not only have land prices gone up, but local officials do not have as much land to allocate as they did before local-government reforms in the 1960s. Especially in that earlier period, having a farm indicated that one had been granted access to land, which in turn indicated that one was sufficiently wealthy and powerful (sufficiently personable, and possessing some sort of monetary or symbolic capital) to be worthy of patronage. And retaining it meant that one was sufficiently wealthy and powerful (or sufficiently politically connected) to keep up on tax payments and to avoid having one's land confiscated through quasi-legal administrative acts. Things have changed today, to no small extent because any sensible person seeks patronage in the form of other kinds of state resources such as government contracts. Yet for relatively poorly connected small-scale farmers, access to land is still as much effect as it is a cause of wealth or poverty.

By itself, this story is not terribly surprising; nor are the brothers’ experiences unusual. A great deal changed in the lives of small-scale farmers in the century leading up to this snapshot. Where they lived – the ancient emirate of Kano, which had been conquered in the jihad that created the theocratic Sokoto Caliphate in the early nineteenth century – was in turn conquered by the British in 1903, its legal and political institutions retained as organs of local administration but transformed in the process. Farmers’ lives were transformed by increasing levels of cash cropping, more sales of land, less agricultural cooperation within families, the end of slavery, the withdrawal of female labour from agriculture accompanying the spread of purdah, and the increasing prominence of income from wage labour as alternative or supplement to income from agriculture. Meanwhile, the legal grounds on which families possessed their rights to work land also shifted, as did the administrative and judicial apparatuses through which the state regulated and enforced their rights in land. The next section will discuss at length the British investigations of indigenous land tenure. Before turning to that topic, however, it would be useful to sketch out the intellectual system and administrative systems through which land rights were understood at the level of the state in the immediate pre-colonial period.

The Sokoto Caliphate was a Muslim state, and the Maliki school of Islamic law guided its judges. The caliphate's rulers paid considerable attention to land matters, and there was consensus about the status of land (Jumare Reference Jumare1995). Most influentially, Abdullahi d'an Fodio wrote a text entitled Ta'alim al-radi fi asbab al-ikhtisas bi mawat al-radi, which served as an authoritative classification of land within the caliphate. A jurist of great renown, d'an Fodio was brother of the caliphate's founder and himself administered half the empire. The work begins by examining the question of how an individual might gain rights to land, concluding such rights came from having the imam's permission to cultivate land and from using it. The imam (in practice a subordinate official within the state hierarchy such as a village head) could allocate land from the territories under his administrative control, as long as they either had never been cultivated or had fallen into disuse. More critically, Abdullahi d'an Fodio then drew a distinction between lands conquered in war or treaty, which he termed waqf, and cultivated land that had not been conquered. Waqf could not be given ‘in ownership’, while other land could be. Because the central lands of the caliphate had been conquered in the jihad, their lands were held in trust by the imam, and its cultivators only enjoyed rights of use (Jumare Reference Jumare1995; Salau Reference Salau2006, Reference Salau2010; Adebayo Reference Adebayo1995; Pierce Reference Pierce2005).Footnote ⁵ Abdullahi's brother Usman d'an Fodio, the caliphate's founder, made a similar argument:

This was a highly unusual interpretation of waqf, which is more typically understood as a pious endowment to be used for the community's benefit. However, this was the established doctrine in northern Nigeria, and it had practical consequences. Ultimately, Abdullahi d'an Fodio's exercise was classificatory, describing the implications of incorporation into the caliphate and the status of individual believers. The jihad did not substantially alter small-scale farmers’ practical rights to land, but it did alter the categories of taxation. His treatise on land law thus gave guidance on which taxes could be levied and their absolute incidence (Smith Reference Smith1960, Reference Smith1997; Garba Reference Garba1986). Questions of land rights did appear in court, and the caliphate's rulers achieved political ends through grants of land to their subordinates and military ends through the creation of fortified settlements called ribats.Footnote ⁶ Nonetheless, compared to the total population the state's judicial apparatus was relatively small, and even the role officials like village heads played in dispute resolution was far from centrally directed. The intellectual apparatus represented by Abdullahi d'an Fodio's treatise was a very partial representation of the practical ways in which farmers obtained and negotiated their rights in land. The administrative structures for territorial administration and tax collection were of much greater daily importance to nineteenth-century farms.

Although most of the Hausa states had long been officially Muslim at the time of the jihad, their incorporation into the new Sokoto Caliphate made practising a pure Islam of paramount importance. The constitution of the caliphate's component emirates, however, demonstrated considerable continuities with the pre-jihadic Hausa states (Last Reference Last1967; Smith Reference Smith1960, Reference Smith1978, Reference Smith1997). A key feature of these constitutions was that the emir was aided by a constellation of subordinate officials who also acted as territorial administrators, responsible for governing towns and villages. They did not actually live in the areas they controlled but governed through a group of ‘messengers’ (jakada, pl. jakadu). Officials supported themselves by retaining a portion of taxes collected from their territories and through slave plantations received from the emir. The state's practical interest in rural dwellers encompassed the tax they produced and the question of whether they were good Muslims or not. Muslim subjects were desirable, but non-Muslims could be lawfully enslaved and thus were a source of profit, and thus relations between farms and the state were fraught with suspicion and uncertainty.Footnote ⁷

The relations of free farmers to one another, and to local officials, were just as complex. Free men who wanted to settle in a village needed the permission of the village head, who could also grant heritable rights to farm plots, in the process Abdullahi d'an Fodio had described.Footnote ⁸ Beyond its legal orthodoxy, the practical importance of the village head's permission was in gaining the right of residence and thereby a position in society. Being socially recognized made it possible to get married, to be worthy of patronage and credit, and to participate in and benefit from communal farm labour. Being allowed to live in a village afforded protection from slave raiders. Population densities in pre-colonial northern Nigeria were low, with a few exceptions such as the areas immediately surrounding Kano; men could find residences and farms that were not under the control of a village head – or at least they could avoid hostile or overly demanding village heads. The social contract during this period depended less on land itself than upon other social goods available in areas under state control. There was unoccupied land within the boundaries of the caliphate (even in densely populated emirates like Kano), but an individual living by himself was vulnerable to raids and would have lived a lonely, desperate life.

Little detailed record of the intimate institutions that structured farmers’ relationships to one another and to their labour survives from the pre-colonial and early colonial periods. Detailed ethnographic attention was not paid to such questions until the 1940s. An approximation of the situation may be achieved by reviewing more recent ethnographic portraits and then by looking at patterns of change across the past century. Relations of reciprocity continue to structure the most intimate domains of social life. Marriage is most commonly transacted through brideprice,Footnote ⁹ and, especially in the past, labour was in short supply. This meant that capital was and continues to be invested to create wealth in things or wealth in people. Family farming is often undertaken cooperatively, and cooperation (especially of fathers and sons) is known by a word, gandu, which most broadly connotes relations of asymmetrical obligation and which takes on meanings ranging from ‘slave plantation’ to ‘tax’.Footnote ¹⁰ Heads of household, masu gidaje (sing. mai gida), are responsible for the welfare of all household members and for organizing the household's collective work. The household's wealth can be re-invested in collective goods such as additional farms, can capitalize individual enterprises, or can pay for marriages. At a mai gida's death, he may be succeeded by a son or brother, or the cooperative unit may break up, dividing the estate between the survivors.Footnote ¹¹

The obligations between fathers and sons play out differently in different families. Sons’ subservience to their fathers can include working under their authority in agriculture or engaging in other economic activities, including wage employment, and giving their fathers access to some or all of their earnings. The affective component of the relationship is extremely important; deference is not just a matter of paying up or working as ordered but also includes appearing respectful and obedient. Men in this cooperative arrangement work communally on all of the fields available to the household. The right to work them may legally belong to the mai gida himself. They may also represent an undivided paternal inheritance: a sister may decide not to claim her inheritance share and allow her brother to continue using it. They may belong to someone else in the household, for example a wife who claimed her paternal inheritance. It is also possible to receive a field as a ‘loan’ (aro); as the pledge for a debt (jingina); to use in trust (ajiya or ri‘ko); or to cultivate through a form of sharecropping (kashe muraba). Buying farms is possible, and the incidence of sale has grown across the past century as land hunger has increased. Not all of the fields are necessarily cultivated communally. A man who is working as the subordinate of a mai gida can ask to be allotted a gayauna plot – as Kabiru, Audu and Idris did – which he is then free to cultivate in his own time. In general, the period for communal labour lasts from the morning until the early afternoon prayer, after which people are free to do their other work, such as cultivating crops for their own benefit on their gayauna.

This portrait of agricultural labour and rural reciprocity synthesizes fifty years of intensive ethnographic research in northern Nigeria, and it exhibits substantial continuities across time and between researchers. That is not to suggest that these institutions are unchanging. Female seclusion, agricultural commercialization, increasing opportunities for wage labour and employment outside of agriculture, and an ever-increasing market in land have changed household economies radically. Cooperative relationships between fathers and sons are rarer and less enduring. Fraternal cooperation is almost absent – in my own research, I met only one set of brothers in a recognizable fraternal gandu. And this then suggests what was at stake for farmers in their relations with one another, with the state, and with their land a century ago. The evidence suggests that in rural areas – within farming families, and in negotiations between the heads of farming families and local authorities – the key causes of concern were access to labour and to the goods labour produced. People had farms, and their farmland could be taken away. But the issue there was less insecurity of tenure per se than quasi-legal or irregular expropriation – tax levels improperly set at impossible levels, farms not awarded to their rightful owner and no recourse granted in court. Particular sorts of farms (irrigated farms, marshy soils that retained moisture, farms suitable for growing key cash crops) made one liable for specific forms of tax, but all this could be negotiated.

The legal apparatus undergirding Abdullahi d'an Fodio's text, what superficially appears to be the land tenure system, is thus only a part of this greater whole, and its effects on small farmers are distinctly limited. Ordinary farmers are well aware of the basic outlines of the Maliki law of succession, and when they do go to court many show considerable sophistication as legal strategists. However, many farmers avoid going to court, and many cases of succession deviate considerably from standard modes of division. Women are very likely not to receive their mandated inheritance shares and often go to court years later to demand the proper division of estates. This was the state of affairs almost a century after colonization, and after courts were established in towns across the region. In the pre-colonial period, the relative unavailability of courts would have made their direct influence even more tenuous (Pierce Reference Pierce2005, Pierce forthcoming).

Further away, in cities and more elite social circles, such questions were understood in more legally and theologically sophisticated ways. But collectively, this was the system of land tenure on the eve of colonization. Far from being susceptible to characterization in any straightforward way, elite discourses that centred on issues of law and administration bore little resemblance to the ways in which farmers understood their own negotiations for access to land as political patronage or maintained harmonious relations within their own families. As a ‘land tenure system’, local rights, systems of tax administration, court machinery and legal treatises were somewhat discontinuous, and certainly were not easily synthesized into a readily described ‘traditional’ system. But that is a paradox only if one assumes that a clear and systematic system of land tenure is central to the functioning of a strong state. Land was just one element in a much more complex negotiation of relationships and social status that undergirded affective relationships, agricultural production and village life. The goodwill of village heads was necessary, but it depended on personal interactions. The patterning of social statuses, of obligations to superiors and to the state, and of positions along a continuum from slave to free supported the operation of emirate governments and state officials. The social structure did not require that any particular person understand its entirety, or even require that different people understand it in the same way. These are the considerations through which agricultural labour was organized and thus represent the intellectual underpinnings of valuation for its products. Given the heterogeneity of affective life among smallholder farmers, the relationship of farmers to the state, and Islamic constitutional theory, it is initially somewhat surprising that they could be considered one coherent system of land tenure.

NORTHERN NIGERIA AND BRITISH PARADIGMS

From the British point of view, northern Nigeria was not an economically desirable territory. It was occupied to prevent the French from doing so and because of the ambitions of the Protectorate's first High Commissioner, Sir Frederick (later Lord) Lugard (Muffett Reference Muffett1964; Nicolson Reference Nicolson1969). The territory did not generate enough cash to support a European government; even a minimal European presence required a subsidy from the more prosperous Protectorate of Southern Nigeria. Making a virtue of fiscal necessity, the High Commissioner proclaimed his retention of the pre-colonial government as a graded set of ‘native authorities’ to be the policy of ‘indirect rule’.Footnote ¹² Pre-colonial offices retained much of their authority by acknowledging the suzerainty of the British regime. The dynamics of the colonial government thus evolved from already-existing political relations, but these themselves were under strain because the means by which the caliphate had obtained revenue and enforced its authority were endangered by the government's non-recognition of the legal status of slavery.

The political urgency of finding appropriate policy was compelling. Many slaves took advantage of the advent of an avowedly abolitionist government to desert or renegotiate the conditions of their labour. A prime source of revenue for both the government and the aristocracy was in danger of disintegration (Lovejoy and Hogendorn Reference Lovejoy and Hogendorn1993).Footnote ¹³ The British hoped to avert this through understanding modal relationships between commoners, aristocrats and the state. Pressure from metropolitan groups like the Anti-Slavery Society dictated that these relationships could not be based on slavery, but they also needed substantially to maintain the existing forces of production and generate revenue sufficient to support the aristocracy and the government.Footnote ¹⁴ Because the ideology of indirect rule (and the reality of the government's lack of direct control) required these understandings to be simultaneously traditional and transformative, the regime's problem was difficult indeed.Footnote ¹⁵

In a memorandum to the Colonial Office requesting a commission of inquiry on land issues, Northern Nigeria's second High Commissioner, Sir Percy Girouard, noted, ‘It is essential, before working out the eventual system upon which land revenue should be assessed and collected, to determine the policy of the Government with regard to land tenure in Northern Nigeria, more particularly native tenure.’Footnote ¹⁶ The request was supported by the answers to a circular questionnaire he had sent political officers about the nature of traditional tenures in the areas they administered. Accordingly, the Colonial Office appointed the Northern Nigeria Lands Committee, whose members included two senior officials who agreed with Girouard's emphasis on land issues. The Committee's political object was to alter but maintain revenue streams, both those that might be called the private incomes of state officials and those going into government coffers. Understanding rights of access to land was intended to enable officials to set tax rates at economically optimal levels and to do it in a way that would be popular, or at least would be popularly seen as legitimate.

The portrait of land tenure that emerged was a somewhat simplified amalgam of Abdullahi d'an Fodio's legal reasoning and a sketch of pre-colonial systems of territorial administration. For example, H. R. Palmer, the officer in charge of Katsina Division of Kano Province, wrote:

Along similar lines, a resident of Sokoto noted,

Residents differed about the circumstances under which an emir could dispossess farmers of their land, particularly without compensation. Nonetheless, a fairly systematic picture of tradition emerged in which ‘traditional land tenure’ was held to be ‘communal’ in that the emir (or the Sultan of Sokoto) owned it while assigning use rights to others in a gift that conveyed with it an obligation to pay taxes.

In indigenous jurisprudence, this position was accurate enough. Emirs really did run their territories as Abdullahi d'an Fodio had directed. But the British inquiry pushed its conclusion further. The report's conclusions followed logically enough from the testimony it received, but it indirectly admitted an alien emphasis. The Committee imported English property law into its formulation of traditional land tenure precisely through its insistence that Nigerian ideas were different. The Committee itself understood its mandate as determining

This task required avoiding

This theoretical emphasis on keeping English and Nigerian conceptions rigorously distinct gave way in practice to an explicit acknowledgment of a relatively minor difference: Nigerian land tenure was not English freehold because in Nigeria grants of land might be revoked. English property regimes were more than a conceptual red herring; freehold was not just something absent in Nigeria. It was something that might develop, to the detriment of farmers’ welfare, if the colonial regime were not sufficiently diligent in preventing it from doing so.

The new land regime attempted to achieve the government's political ends by gradually transforming all farmers, slave or free, into peasant proprietors whose ‘traditional’ obligation to pay money to the state – understood by the English term ‘tax’ – stemmed from their investiture with usufructuary rights to land. If the claims to tradition by colonial tax collectors were suspect, the strategic sense of leaving rural smallholding largely unregulated except for abstract codification was somewhat sounder. In the absence of a staff large enough to assess the countryside accurately, the colonial state lacked the means to coerce former slaves into plantation labour or even to have much sense of how many slaves there were or what their slave status meant in practice. At the same time, the system of codified land tenure would prevent the inauguration of a feudal or proto-capitalist class that might reserve all land for itself, ‘developing’ the country in a manner that impoverished the population and brought Nigerian land tenure into line with English systems.

The almost-inadvertent import of British paradigms went beyond positing a set of evolutionary dangers. In the British sense, ‘land tenure’ designated the methods by which rights of ownership or usufruct were assigned to particular individuals or groups. Examining it was a matter of crucial interest because it suggested a method for generalizing officially about how commoners could be exploited and controlled. Moreover, it provided the rubric of tradition for understanding this generalization. An investigation of the land tenure system engaged the most basic political relationships, but this was because in Britain land tenure had been at the centre of feudalism and the growth of agrarian capitalism. Even if this description seemed accurate and if the government functioned, this picture of land tenure was at best an inaccurate reflection of the convoluted and locally negotiable chains of reciprocity that constituted indigenous politics and the relations of production. And though it was somewhat closer to the legal writings of Abdullahi d'an Fodio and other caliphate scholars, this image of land tenure as itself a mode of control rather than an issue of people's religio-legal status made the equation problematic. The paradox of land tenure in northern Nigeria is not why the British were so concerned with issues of taxation and state authority but why they convinced themselves that the negotiation of land rights was key to understanding this set of political concerns.

How did the Northern Nigeria Land Committee's exhaustive inquiry come to misrepresent its ostensible object? The impetus came from the British assumption that land tenure was a universal category. The existence of systems for describing and assigning usufructuary rights implied these would have the same political valences that they had in Britain. Even if the Committee explicitly claimed to be avoiding British ideas about property, the very notion of land tenure emerged from the laws surrounding feudal landholding, in which inferiors received rights to land in exchange for providing services to their superiors. The combination of political authority and proprietary rights aligned the question of access to land with the project of political control; aristocrats and farms enjoyed rights to land because they paid allegiance to their superiors. And while the Committee disavowed any belief in a Nigerian feudalism, this centrality of land rights to governance remained the basis for their intuition of land tenure's centrality to colonial governance.

By the time the British arrived in northern Nigeria, land tenure was well established as a problem for colonial administrators. Indeed, British experiences in India convinced many administrators that it was crucial to tackle land tenure. It was in the context of this field experience that political economists initially formulated their notions of how land tenure operated within a modernizing economy (Stokes Reference Stokes1959; Guha Reference Guha1996). An early attempt to fix land taxes in Bengal, called ‘permanent settlement’, had led to scandals as a group of Indian landlords consolidated power and impoverished small-scale farmers. In the decades following the outrage over permanent settlement, land issues remained an acute political problem because of the prominence of the land question in Ireland.

The question most relevant here is how the political economists thought that land functioned as a factor of production and how ideally it might be regulated and exploited by the government and by society in the interest of all. One of the most influential intellectual forebears for the Nigerian inquiry was the American Ricardian socialist Henry George. George argued that the most oppressive aspect of agrarian economies like Ireland and India was the existence of landlords. He claimed they had no social function and existed simply to extract resources from the land's actual cultivators (George Reference George1930; Shenton Reference Shenton1986). As a corollary, historically taxes had been assessed in a way that placed the heaviest burdens on producers and shielded non-producers like landlords. To address this problem, he suggested that all taxation be limited to collecting a single unified tax, which would be set at a level equal to the quality of the land (and no higher, so that farmers had no disincentive to work hard or to improve their land). Landlords would be eliminated, the government would nonetheless be able to operate, and small-scale farmers would be able to make an equitable living.Footnote ²¹

Georgian ‘single-tax’ approaches were very influential for colonial land issues at the start of the last century, particularly within the Liberal Party (which returned to power the year before Girouard was appointed High Commissioner), and they informed the deliberations of the Northern Nigeria Lands Committee, which ultimately described Northern Nigerian land tenure in a peculiarly Georgian idiom. The Committee's members took as their point of departure that the Sultan of Sokoto held all lands conquered in the jihad in trust for the faithful as an indication that he held ‘title’ to them through right of conquest. British conquest then ‘effected a transfer to the British Government of whatever rights of control or superiority over the land were formerly exercised by Mahomedan or pagan chiefs or their subordinates’.Footnote ²² In Georgian terms this suggested land had for a long time been nationally controlled. Ultimately therefore the tax system could be modified to create a perfect ground rent, understood in basically Ricardian terms – in the Committee's phrasing, ‘that increment of value’ which ‘independent of the exertions of the cultivators, augment[s] the profits derived from the use of land’.Footnote ²³ The key element of state control of land already existed, while a system of land surveys would ultimately allow the state to fix annual rates at precisely the necessary level. Indian permanent settlement was still a sore point with the Colonial Office and with Parliament, and therefore the Nigerian government's refusal to create a landlord class or to fix permanent tax rates was politically desirable. Rather, a long-term project of assessing the productivity of the protectorate's farms, continually updated by considering infrastructural improvement and the nature of every year's harvest, could prevent such scandals and turn this neo-traditional form of taxation into Georgian rent.

What is truly extraordinary, however, is the extent to which the land tenure system, though exquisitely sensitive to British political opinion and then-influential Georgian socialism, bore almost no resemblance to the Nigerian systems of thought from which allegedly it had emerged. To the extent that British inquiries comprehended Islamic constitutional norms, they misidentified the intellectual purchase these doctrines had. What became invisible was precisely the social logic of production that codifying land tenure was supposed to bring into focus. How much labour, and whose, had gone into the harvest? What gave the crops their value? How could farmers be convinced that their payment of tax was necessary and legitimate? The correlation between Georgian land taxes and the Islamic legal theory that formed the juridical basis of the caliphate was imperfect but not entirely unreasonable. But peasant farmers of the period had little access to legal texts (or, for that matter, to legal scholars), and the representations of the Northern Nigeria Lands Committee bore little relation to their experience of the micro-politics of everyday life or to the macro-politics of the state.

So how did this conjuncture ultimately affect the lives of the three brothers? The Committee's conclusions were enacted in the Land and Native Rights Ordinance of 1910, and ultimately confirmed by a Land Tenure Law in 1962 after independence, and then a military decree in 1978, which, more or less, extended the northern system across the entire federation (Francis Reference Francis1984). These later iterations moved responsibility for granting land away from regional or state governors, but farmers’ practical rights remained largely the same even as the long-established principle of revocability enabled the government to take land for its own purposes. This long period during which the legal regulation of land retained substantial institutional continuity helps to explain why land litigation in northern Nigeria does not have the quality scholars like Berry (Reference Berry2001) have identified elsewhere, where the very nature of ‘rights’ and ‘tradition’ remains hotly contested. Nor, despite some wealthy people acquiring huge farms, have they been at the centre of an emergent rural upper class (Peters Reference Peters, Juul and Lund2002, Reference Peters2004).Footnote ²⁴ Instead, the example of the brothers suggests something fundamental about contemporary Nigerians’ relation to their government. Like their father and grandfather before them (and the odds are, like their more distant ancestors), the brothers live in a world in which negotiation, clientage and reciprocity are central to economic life and social advancement. Their rights in land are one part of a much more complex set of strategies for maintaining the family's life and livelihood. The Northern Nigeria Lands Committee made it impossible to create large foreign-owned plantations in areas of peasant agriculture, but otherwise had little direct influence over the brothers’ daily affairs. Accordingly the transformations in farmers’ lives over time has tended to flow from other sources. Nonetheless, there is a long-lasting legacy, and it is profound. Where under the caliphate juridical regulation of land issues was one strand within a more embracing system of governance, the codification of land tenure instituted a peculiar disjuncture into the constitutive logic of the Nigerian state. Land issues were held to be central to political tradition, in the manner they had been in British history, even while the Committee insisted it was not importing British concepts. In the end, the brothers’ lives are governed in a legal logic that has institutionalized two incompatible ways of understanding farmers’ productive lives. And even evoking ‘land rights’ in an academic article such as this inevitably invokes a fraught set of corollaries.

MEANING AND THE VALUE OF INCOMMENSURABILITY

What is at stake in moving between the theoretical universe of negotiations of land rights among northern Nigerians and the theoretical universe of land rights as they are expressed in English, especially as these were negotiated over time? Pointing to a disjuncture is not illuminating. Despite their different positions, various English theorists of land rights all shared basic assumptions about land and people's relation to it, and about how human societies might regulate these relationships. So the basic question is what real property meant to the British, and then how describing Nigerian social relations in British terms had social consequences.

For the English, the negotiation of usufructuary rights to land was central to political authority. This negotiation was key both to systems of surplus extraction and to the legal system that constituted and explained them. The complex history of the English state and of proprietary rights to land was itself reflected in the various schools of thought that emerged to describe politics and economy. The emergent sciences of law, political economy and ethnology developed theories about proprietary rights to land – what became glossed as land tenure in northern Nigeria – and to assert in universalist terms that the process of their development in England was an evolutionary sequence that could be discerned at different stages everywhere in the world.Footnote ²⁵ Colonial land policies, reasonably enough, followed these idioms of property or not-freehold, and thus were overdetermined by the intellectual and political discourses of property in Britain.

Even there, however, the term ‘property’ has a certain diffuseness. One of the striking aspects of all of the discussions of property and land tenure is that the British officers who were dogmatic in asserting that Nigerian institutions were the same as or different from English ones often had hazy or inconsistent ideas about what English property was, or what its history had been. What is the significance of a category like property? It has a highly specialized meaning, yet its social salience is somewhat nebulous. How can one approach the problem? Hilary Putnam suggests that terms become meaningful through a hermeneutical process, taking shape against a background of necessary beliefs and presuppositions. Meaning is thus not limited to the interaction of the propositions in a given statement:

It is only through a kind of charity, he argues, that we accept our terms as being the same as those used by others, and the same as those we used in the past (Putnam Reference Putnam1988). My notion of property may be different in kind from a libertarian's, but I need not conclude a libertarian misunderstands it or uses the term incorrectly. Meaning in this sense does not require that I have a particular intention inside my head (a set of experiential criteria I deem met, a belief that others’ beliefs are sufficiently like mine to allow communication) but takes shape in relation to social processes that provide meaning. Putnam uses the example of the meaning of gold. In order to be a competent user of that term, I do not need to know how to test a substance in order to determine whether it is gold or not, nor need I be aware that gold is element 79 and what that implies about the number of protons in the nucleus of an atom of gold. Instead, I live in a society that has a set of experts who can determine whether a substance is gold, and others who determine what gold means. I depend upon them to do so. In order to use the word ‘gold’ competently it is unnecessary for me to know how experts in my society define gold or even for me to have a sense of the social processes behind experts’ activities.

Such processes determined how ‘property’ functioned in turn-of-the-century British society – and in present-day Western society – but as with gold it is not necessary for me to be aware of them in order to use the word correctly. In the case of Girouard and the Northern Nigeria Lands Committee, it was not necessary to consider fully how terms like ‘land law’ and ‘property’ functioned within the history of British legal and imperial history. The specific political processes that had made it central to the English state during the medieval period and that then allowed for the birth of agrarian capitalism in the early modern period gave these terms a political valency Nigerian circumstances did not share. But because the social processes defining British property were distant, they were able to proceed as if this conceptual imposition had not occurred.

Through its use in various social situations, ‘property’ acts as a place marker for a set of complex social processes within British society, and indeed many others. These encode presuppositions about politics and economics emerging from English history. While it is not necessary for competent users of the term ‘property’ to be conscious of this ideological density, to the extent that we use it in relation to questions that concern political-economic matters we necessarily invoke this more specialized conceptual apparatus. The codification of land tenure in northern Nigeria was a process of depending on a terminological complex tended by specialists, and it was pretty much exclusive to British actors. The disjuncture between codified land law and indigenous practice is an interesting instance of a covert and largely accidental creation of what Povinelli (Reference Povinelli2001) has termed incommensurability, cultural universes so different that their bedrock assumptions made them almost mutually incomprehensible. British investigations into Nigerian land tenure had the perverse effect of bringing into being a mode of understanding that systematically precluded understanding the basic dynamics of Nigerian land use and political authority.

In the case of investigating land tenure in northern Nigeria the British were faced with a problem of radical translation (Quine Reference Quine1960; Povinelli Reference Povinelli2001): Hausa was a language whose network of concepts around land was very different from those in English. Especially on the British side, the term ‘property’ was used in diverse ways as a technical term, common idiom, object of scientific inquiry, metaphor. This diffuse and shifting set of meanings was coordinated by a group of experts, whose activities enabled other language users to employ the term relatively unselfconsciously. Hausa had a set of terms (mallaki, kadara) that was less ideologically imbricated. Translating terms and legal texts as being about land tenure (with the supplementary assumption that it was land tenure in the English sense) was not a case of mistranslation in the sense of choosing the wrong word. Instead, it was a covert, unconscious imposition of concepts, doubly difficult to detect because the basic categories of Western social science depended on the very same processes.

By itself, it is uninteresting that northern Nigeria's land law was radically wrong. Its codification was meant to enable a transformative regime of exploitation. Codifying land tenure was supposed to mesmerize free commoners into paying taxes and simultaneously was supposed to provide a method for assessing tax itself. Such a farm tax would be a perfect ground rent and therefore would have no bad economic effects. This quasi-utopian scheme foundered on the shoals of Nigerian political life. Philosophy of language is very well, but what does this history of eccentric translation and expert-mediated meaning reveal about colonial exploitation in northern Nigeria? The early-colonial project of codifying land tenure was part of what was then understood as development, a way of integrating the territory into the global economy and raising revenue in hard currency, a pre-World War II sense of the term bearing a greater resemblance to pure extraction than to the social welfarist notions popularized in later years (Cooper and Packard Reference Cooper and Packard1997). The twin imperatives of good governance and of indirect rule, however, demanded something other than a regime of naked exploitation of the sort that had caused scandal in Putumayo and King Leopold's Congo (Taussig Reference Taussig1986; Hochschild Reference Hochschild1999). Economic exploitation needed to appear rational and sustainable, but it also had to appear traditional.

At stake was a semiotic process through which the products of labour in agriculture could be ascribed as having monetary value and some proportion appropriately taken as ‘tax’. The intellectual trajectory in which paradigms of land rent refracted through Islamic constitutional theory to produce northern Nigeria's tax system came up against its other in the normative patterns of smallholder agriculture. The mismatch between the two did not cause the entire project of governance to falter, quite the contrary. The disjuncture was productive in the perverse sense of masking the consequences of British taxation. Taxes rose by orders of magnitude, and many smallholders plunged into poverty, a form of structural violence radical translation made invisible and therefore helped to sustain.Footnote ²⁶ The value of evaluation was as a foundation of colonialism. Its legacy remains in the circumstances of farming families today.