Why ‘Rethink’ Usufruct?

Provocations and Questions for the Rethinking Usufruct Workshop

Lauren Bonilla & Rebecca Empson

Usufruct (n.): “Right to the use and profits of the property of another without damaging it,” 1610s
(implied in usufructary), from Late Latin usufructus “use and enjoyment,” from Latin usus “a use” (see
use (n.)) + fructus enjoyment,” also “fruit” (from Pro-Indo-European root *bhrug- “to enjoy,” with
derivatives referring to agricultural products). Attested earlier in delatinized form usufruit (late 15c.).1

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Framing the workshop around the term ‘usufruct’ might seem a bit peculiar. One
person joked that to ‘rethink usufruct’ they would first have to look up the meaning of
the word in the dictionary. Another confided that the scholars they know who have
engaged with usufruct are now all retired. A colleague at UCL expressed their
surprise about the workshop theme by simply beginning an email to us, ‘A usufruct
discussion in the UK!? Wow!’

Usufruct is no doubt an antiquated concept, having roots in Roman law. It confers a

‘certain person – the usufructury – the right (ius) to the use and enjoyment of fruits of
a thing for a certain amount of time, without destroying the thing or fundamentally
altering its substance’ (Straumann 2012). In the Roman world, usufruct was a ‘law of
things’ that could be granted to lands and houses, but also to cattle, clothes, money,
and particular categories of persons. The law was significant to the Romans because
it created rights of possession that afforded someone the ability to yield interest or
benefits from property vested in another, with the expectation that the possessor
would not steal the thing or substantively change its physical form (Radin 1925).
Usufruct could be divisible among persons, held in common, or leased out, thereby
allowing for a range of forms of possession, limited only by periods of time
(Straumann 2012).

Usufruct found its way into property regimes around the world, largely as a result of
the adoption of civil-law systems brought about by European imperial and colonial
projects.2 Modern civil-law systems recognize two types of usufructs. The perfect
usufruct includes only those things that a usufructury can use without changing their
substance, such as land, buildings, or movable objects; the substance of the thing,
however, may be altered naturally over time and by the elements. The quasi-, or
imperfect, usufruct includes things that are consumable or expendable, such as
money, agricultural products, and the like, which would be of no advantage to the
usufructury if they could not consume them, expend them, or change their
substance. In some civil-law jurisdictions, usufruct applies specifically to inheritance,
allowing for the splitting of possession and ownership rights across multiple

1
Online etymology dictionary: https://www.etymonline.com/word/usufruct
2
Usufruct, however, did not make its way into English common law, although certain general similarities can be
found in the common-law concept of estate.
inheritors. Usufruct is especially prevalent in areas where property rights are held
communally or in commons by the state, or where property distinctions are socio-
materially ambiguous or ‘bureaucratically uncertain’ (Plueckhahn 2017).

Our starting point for the need to ‘rethink’ usufruct came out of our Emerging
Subjects group’s research into how people in Mongolia engage with global economic
flux. One of the prominent themes to emerge has been the sense that experiences
and expectations of ownership are shifting, with a turn towards more temporary
forms of possession, in line with the concept of usufruct. For many, processes of
financialisation, commercialisation, privatization, and global incorporation have
radically transformed economic life while simultaneously reconfiguring the relations
that define and govern ownership regimes (Plueckhahn and Dulam forthcoming,
Empson and Webb 2014). At both the personal and national scale, Mongolians are
negotiating entanglements with a host of new masterful entities – local banks or big
men, transnational mining companies, foreign sovereign bond holders, etc. – who
have acquired authority over wealth and resources that Mongolian citizens and the
state now have more limited and contingent access to. At the same time, people
strategically use these transient forms of possession, like bank loans, to creatively
cultivate economic potentialities, even if in the process they are disassociated from
outright ownership (Empson 2014). New ethical concerns and projects arise from
these dynamics, leading people to stake out novel spaces of possession, make
claims to shares of wealth, and practice forms of custodianship in a landscape where
the mutuality of ownership proliferates.

While our interest in this topic emerged in Mongolia, we have found that usufruct is a
powerful analytical tool by which to understand complex relations and forms of
ownership globally. Thinking with usufruct has reach beyond the particular,
extending into features of global capitalism elsewhere.

In this workshop, we seek to expand the concept of usufruct beyond its legal and
landed confines, and mobilise it as a ‘theory machine’ (Helmreich 2011) to explore
states of being, strategies of living and worlding, and ethical property relations in the
current global age.

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This workshop is based on the hypothesis that people across the world seem to
increasingly experience states of usufruct, where their ability to have sovereignty
over wealth, property, forms of creativity, territory, or even their bodily selves is
stunted, contingent, and partial, sometimes due to asymmetrical relations with
masterful entities such as financial institutions and states, or processes like climate
change.

Forms of usufruct seem innumerable, but they manifest perhaps most visibly in
contemporary crises concerning deindustrialisation, the collapse of housing markets
and the displacement of people from their homes and homelands (e.g. foreclosures
in the USA and Europe, the foreign purchasing of land, the refugee crisis), the rise of
contingent and provisional employment (e.g. Uber), and growing sovereign and
student debt distress.
Scholars have deployed concepts like ‘accumulation by dispossession’ (Harvey
2004) and ‘precarity’ (Allison 2013; Muehlebach 2013) to describe the relations of
dependency and inequality that make ownership, control, and stability feel temporary
and out of reach as government services and companies increasingly outsource,
offshore, and engage in complex forms of financialisation. From these perspectives,
exclusive or stable ownership is commonly seen as something that was achievable
in the past in contrast to temporary models that many people are now forced to
endure.

We seek to move this scholarship in a different direction by emphasizing not just the
negative, disempowering, and exploitative ways in which forms of temporary
possession are a feature of neoliberal capitalism, but also to explore how people
strategically access, occupy, use, and enjoy different kinds of resources through
usufruct in times and spaces of limited temporality and authority. The workshop
thus proposes an understanding of usufruct not only as a state imposed, but
also as a strategy chosen that allows for experimentation, innovation, and
creativity. We question whether making ownership ambiguous, holding off on
demarcating clear boundaries of who or what is the master of what, and constantly
deferring responsibility shapes socialities, materialities, economies, politics in
particular ways.

We might think of usufruct as facilitating aspects of the commons, particularly

the qualities of resource sharing, co-existence, and freedom. However, by
looking to forms of commons (or ‘commoning’) for innovation and difference for
alternatives to ideas about outright ownership (i.e. enclosures), we may in fact be
precluding ideas about difference that cannot be accommodated into these domains
(Blaser and Cadena 2017). Does the Other in the concept of usufruct normalize a
commonality that doesn’t exist? How does a focus on usufruct point to something
different from common ownership, sharing economies, and individual ownership? In
what ways does usufruct open up a space for mutuality with multiple others?

While usufruct may enable creative strategies of temporary possession, it also

may play a vital role in sustaining neoliberal capitalism. Does usufruct play into
contemporary politics in which individuals are increasingly tasked with being
‘resilient’, ‘responsible’, ‘caring’, or ‘moral’ individuals, sacrificing for the idea of
‘austerity’ or the ‘greater good’, despite their tenuous ability to access, use, and
control the resources that are fundamental to their life and well-being? How might
we think of usufruct as a feature of capitalism, which allows forms of agency and
opportunity to proliferate while constraining others? Might usufruct allow for the
occupation of the ‘edges and seams of imperial space’ (Tsing 2017) enabling
alternative ontological projects and forms of worlding to emerge?

A unique element of the historical law of usufruct is its normative dimension whereby
no harm is to be done to that which is used, possessed, and enjoyed. Here usufruct
appears as a fundamentally ethical relation that allows people to possess
particular political, social, and environmental spaces to practice forms of care,
stewardship, and custodianship. Yet, we ask: who is the master to the custodian
and what kinds of power dynamics structure these relations? If we think of usufruct
as a feature of the new global economy, what are the possibilities for usufructury
practices of custodianship in the Anthropocene, where life is now lived on an already
‘damaged planet’ (Tsing et al. 2017)? Consideration of this ethical dimension opens
up avenues to consider the meanings and valuations associated with ownership
while also allowing for a sensitivity to the relations of power and authority that
inscribe the states and strategies of possession.

In making broader comparisons about features of ownership across contexts – to

create a common analytical framework – we are mindful of how this may eliminate
differences in our own examples. Even deploying the language of usufruct runs the
risk of assuming aspects about ownership that do not exist in some places and
contexts. We thus welcome critical engagement with the concept and offerings about
how we might think in different ways about the notion of temporary possession.

***

Allison, Anne. 2013. Precarious Japan. Durham: Duke University Press.

Blaser, Mario, and Marisol de la Cadena. 2017. “The Uncommons: An Introduction.”

Anthropologica, October.

Empson, Rebecca. 2014. “An Economy of Temporary Possession.” Lecture

presented at the Department of Anthropology Malinowski Memorial Lecture,
London School of Economics, May 22.
http://www.lse.ac.uk/newsAndMedia/videoAndAudio/channels/publicLectures
AndEvents/player.aspx?id=2461.

Empson, Rebecca, and Tristan Webb. 2014. “Whose Land Is It Anyway?” Inner Asia
16 (2): 231–51.

Harvey, David. 2004. “The ‘New’ Imperialism: Accumulation by Dispossession.”

Socialist Register 40: 63–87.

Muehlebach, Andrea. 2013. “On Precariousness and the Ethical Imagination: The
Year 2012 in Sociocultural Anthropology.” American Anthropologist 115 (2):
297–311.

Plueckhahn, Rebekah. 2017. “The Power of Faulty Paperwork.” Inner Asia 19 (1):
91–109. https://doi.org/10.1163/22105018-12340080.

Radin, Max. 1925. “Fundamental Concepts of the Roman Law.” California Law
Review 13 (3): 207–29.

Straumann, Benjamin. 2012. “Ususfructus.” In The Encyclopedia of Ancient History,

edited by Roger S Bagnall, Kai Brodersen, Craige B Champion, Andrew
Erskine, and Sabine R Huebner. Hoboken, NJ, USA: John Wiley & Sons, Inc.

Tsing, Anna Lowenhaupt. 2017. The Mushroom at the End of the World: On the
Possbility of Life in Capitalist Ruins. Princeton: Princeton University Press.

Tsing, Anna Lowenhaupt, Heather Ann Swanson, Elaine Gan, and Nils Bubandt,
eds. 2017. Arts of Living on a Damaged Planet. Minneapolis: University of
Minnesota Press.