When Evidence of Property Rights is Narrowly Defined, Many People are Excluded

Administrative agencies often determine the ability of citizens to exercise their rights and privileges. For example, administrative agencies provide us with formal rights to vote, own property, drive cars, and travel internationally. Access to these rights and privileges comes in the form of documentation: my passport allows me to travel, my state-issued ID is proof of my identity, and my deed is proof of my property right.

But how does an administrative agency know who to issue a document to, and under what circumstances?

If an administrative agency were privy to the life story of every citizen, it would be able to determine, based on the totality of a person’s life history, which rights and privileges that person qualified for. But because administrative agencies have to interface with millions of citizens and don’t know the life story of every person they deal with, they must rely instead on standardized records that capture a few major life events—like births, marriages, etc.—to determine who is eligible for which rights and privileges. This creates a strange gap between natural reality (i.e., the facts of life) and the administrative record of that reality:

• Natural Reality: The facts of life.
• Administrative Record: Documentation that administrative agencies issue as a proxy for the natural reality.
• Credential: A predefined form of evidence that citizens present to the administrative agency in order to prove things about themselves and obtain an administrative record. In other words, a credential is the bridge between natural reality and an administrative record.

For example: The natural reality is that I am over 16 years old and know how to drive. The administrative record is my driver’s license. The credentials I presented in order to obtain my driver’s license were: my birth certificate, my social security card, and a document certifying successful completion of a driving test.

A property rights example: The natural reality is that John owns and lives in his home. The administrative record of that reality is a title. John obtains a title from a land office by presenting some or all of the following credentials: an ID card, a survey plan, notarized biographical information forms, signed neighbor attestations, and a proof of property tax payments.

Our natural reality is made up of an infinite number of small facts that together define who we are. But because administrative agencies are not privy to our life stories, they have to rely on proxies that ‘prove’ facts about us. That means the proxies—lets call them “monument credentials”—must be trustworthy enough that even a small number of them will provide enough proof for an administrative agency to issue documents that provide us important rights—like driver’s licenses and property titles—without having ever met us. In the context of property rights, monument credentials include things like a survey plan, a notarized will, or a bank-certified proof of payment.

This system has two major challenges:

1. Access: It may be unduly burdensome for some citizens to produce the credentials they need to receive an administrative record of natural realities.
2. Accuracy: Administrative records are not necessarily an accurate reflection of the natural reality they are supposed to represent. There are relatively few forms of administrative proofs, leaving a gap between reality and documentation.

An example of the access flaw: When the supporting credentials required by land agencies (e.g. a survey plan and a state-issued ID) are prohibitively expensive or unavailable for citizens to produce.

An example of the accuracy flaw: When administrative records provided by land agencies (e.g. titles) don’t accurately reflect the natural reality on the ground (e.g. overlapping use rights, rights of women in the household, transhumant activity, etc.) or don't recognize informal sales.

With either an accuracy or access flaw, the result is that certain citizens are not able to exercise the rights and privileges they are entitled to, either because they are unable to produce the needed credentials or because there is no form of administrative record that can accurately reflect the tenure arrangement taking place on the ground.

To the extent that the access flaw exists, it is disproportionately borne by the most vulnerable communities—those least able to respond to administrative burdens. To the extent that those communities are affected, the result is the loss of rights that are owed to the community.