Liberty, Prudence, Imperfection, and Law

“Save the Rhinos?,” By Bruce Frohnen

White rhinoceros in South African game reserve. By Flickr user James Temple, CC BY 2.0.

One of the more interesting proposals being put forward in recent years to save endangered species is privatization. Most of us have heard of the problem of poaching. Elephants and rhinos in particular are officially protected but often killed so that poachers can sell their tusks, horns, and other body parts. International bodies and nations have sought to reduce poaching by making trade in ivory and related products illegal. But the poaching continues. Even in refuges set aside for them and watched by game wardens these animals are susceptible to poaching because there is so much money involved in the black market.

We know, however, that these magnificent creatures are relatively safe where they are better protected. Especially in the hands of private parties with a financial interest in keeping the animals from harm, poachers have a much harder time gaining access to and killing them. Why not, then, allow private parties and companies to protect rhinos in particular and “harvest” their horns for trade, thereby incentivizing their protection?

One problem is international virtue signaling. People, especially those in positions of international authority, would rather be on record as defending animals’ “rights” to roam relatively free than to consign them to commercial control. That the animals might have plenty of room to roam freely with less risk of being poached is not relevant because of the “optics” of a situation in which filthy lucre (you know, the desire to make a living?) is seen as tainting conservation efforts.

A second reason for forestalling such a program is that it appears to undermine a significant source of governmental power and graft. Currently, governments in sub-Saharan Africa (not to mention the rest of the world) control large swaths of territory and access thereto. Officials are able to squeeze money out of this control through various fees. In addition, unfortunately, many governments collect bribes from the poachers themselves.

But there is another issue that is worth considering: the problem of violence. The question should be asked whether private control over these animals (and their territory) would actually increase violence as poachers and perhaps other local residents took out their resentment on people taking over resources they see as their own. When sheepherders moved to the American West the result was a series of range wars. The sheepherders sought to fence in their property to protect and keep track of their sheep. This closed off vast swaths of ground previously treated as common pasture by cattle ranchers. The problem was complicated in that the ranchers thought they had a right to the grazing land rooted in custom and usage, whereas the sheepherders had actually purchased land from the government for their own use. In most instances the sheepherders were recognized to have the better claim in the end. But the cattle ranchers were not behaving irrationally or completely without justice, at least in terms of their motivations, because custom and usage always have been at the root of important property rights. What was needed was a consensus about the inviolability of land boundaries and some regularization of rights of usage to substantial common lands. Sadly, this was achieved only after significant violence.

How does this relate to rhinos and elephants in Africa? Private property remains problematic in terms of its legitimacy in much of that continent. Tribal lands remain important in a number of countries. Indeed, one reason for the continuation of poaching is the belief among many local peoples that they have a right to hunt these large animals. On this view the animals are part of the natural, open range and its products, or even more important, crossing lands they consider to belong to their own people. Add to this historically grounded hostility toward (especially white) landowners whose title to land is considered illegitimate, and you have a recipe for substantial violence if the government is seen as “giving” control over a common resource to private parties.

I point to these circumstances as mere factors to consider. It is not my intention, here, to make specific recommendations. Indeed, my point is precisely the difficulty of making some blanket recommendation for all peoples in all places at all times. It is at least questionable, in my view, whether Western nations ought to be telling countries dealing with poaching of this kind how they should conduct their business. Europeans and Americans (of the ancient, “indigenous” lineage) killed off almost all of our own large predators many centuries ago, as hunter-gatherers almost always do. As a result, our preference that African countries maintain their large animal populations hardly seems worthy of considerable weight. Of course, this position would indicate that we might want to reconsider the ban on all purchases of ivory and like products, perhaps instead banning only purchases lacking proof of the legality of their source.

It may well be the case that the best solution for the maintenance of rhino and elephant populations—and for the economies of various nations in sub-Saharan Africa, would be privatization and harvesting. Certainly it is rational for relevant governments to include calculation of the benefits of tourism, in all its forms, to determine the best route to wise management of land and animals. Moreover, as persons, placed by God in a natural environment he made, we all have a duty to work to preserve it. But the rights of outside peoples to dictate particular policies seem limited to say the least. And the track record of Western nations in “assisting” sub-Saharan Africa toward wise economic and political development is so awful as to dictate a concerted effort to regain some modicum of humility.

There is another, specifically historical factor we might want to consider in all this. The “enclosure movement” generally is dated from the mid-eighteenth through the mid-nineteenth centuries in England and western Europe. During this time common areas were transferred to nearby large landowners through sale and statute. The movement in England in particular had its roots much deeper in history, going back to the twelfth century and most importantly to a wave of usurpations in the fifteenth century. It is unfortunate that the enclosure movement has come to be seen as a testing ground for arguments about privatization and industrialization, because that is not exactly what was at issue. The Left lambasts enclosure’s “capitalist” motivations and industrial results and the Right praises it for the same reasons. But the movement had much different and less economically broad-minded goals.

Early enclosures in particular were made less to benefit commerce than to increase governmental power by buying support from local landowners—rewarding friends and punishing enemies. What is more, the “commons” was not some proto-communist idyll of sharing and caring among egalitarian peasants. Common lands were the property of a corporation—the town or borough. Regulations tended to be informal and rooted in custom, but they were real. Early modern enclosure was intended to increase the pastureland available to local lords at the expense of the lower orders. It was, in effect, a land grab aided by the central state in the name of economic gain and political power.

Given the very real down side to privatization of the commons in our own history, we would do well to limit our enthusiasm for fostering the same process in sub-Saharan Africa. This is not to say some such shift in policy would be necessarily bad. But considerations of local custom, the legitimacy of local authorities, and the possibility of graft mean that outside observers should not merely assume that “progress” demands any particular, one-size-fits-all policy.


Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.

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