The term tenure may refer to landholding of any type; it usually implies, however, that the landholder does not have absolute possession but derives the right from some other person. This meaning of the word originates from its sense in feudalism; so used, tenure is the antithesis of alod, absolute ownership without obligation to others.
The modern Anglo-American law of land developed out of the institutions of English feudalism established after the Norman Conquest (1066). Theoretically, the monarch was the ultimate owner of all the land; in practice, however, certain land was held according to earlier custom. Those who were feudal tenants always held land of another (the lord or landlord) to whom obligations were owed. The type of tenure essentially established the tenant's social status; the term estate (deriving from status) thus came to be applied to the various types of tenure.
The early tenures were classified basically as free or unfree. Unfree, or servile, tenure was generally that of the villein, who performed menial services and was a tenant at the will of the lord (see manorial system). Tenancy by custom eventually became a permanent right in the property when such tenures were recorded in the copy rolls (parchment records) of the manorial court, and the villein became a copyhold tenant.
The various types of free tenure are sometimes described as means for ensuring performance of all the services required by the state. Military needs were guaranteed by knight tenure (see knight 2). Spiritual welfare was provided for by frankalmoign tenure, i.e., granting lands in charity to religious bodies. Serjeanty tenure furnished the king with needed officials and with personal services. Finally, the vital cultivation of the land was accomplished by socage tenure wherever villeinage was not in use.
Socage tenure is especially important because it is the basis of all modern estates, while the other classes of tenure have all disappeared. The socage tenant, or socager, held his land in return for performing duties to the lord. These incidents of socage were essentially like the aids and scutage exacted of knights; like those, they were also eventually commutated into fixed money payments.
In the development of the law of land perhaps the most important incident was the fine for alienation. This was the payment of a sum to the lord for permission to alien (or alienate) the estate, i.e., to grant it (sell or make a gift of it) to another. The right of free alienation, a cornerstone of modern property law, was partly guaranteed in 1290 by the statute Quia emptores, which abolished the fine. However, freedom to dispose of land by will on the tenant's death was not established until passage of the Statute of Wills (1540). In inheritance of land primogeniture was usually observed; different local customs, notably borough-English and gavelkind, were, however, also observed. If the tenant had no heir the estate went back to the lord; such reversion was called escheat.
Socage tenure eventually developed many varieties, commonly called fees. (The word fee stems directly from fief and ultimately from feud, both terms of feudal law.) Fees are divided into freehold and nonfreehold. The freehold fees are fee simple, fee tail, and life fee.
A fee simple is essentially absolute ownership of land; it includes, therefore, complete freedom of alienation and (since 1540) of devising (bestowing by will). An estate in fee tail was one bestowed as a gift to the donee and to his issue (children) or a class (male or female) of his issue. Read literally, the terms of the grant prevented alienation of the land out of the prescribed line of succession. A life fee or a life estate was one that would endure for the lifetime of the grantee and after his death would go to some other person. The life tenant had no power of alienation.
Nonfreehold estates include estates for years, periodic estates, estates at will, and estates at sufferance. An estate for years is one that will expire at the end of a fixed period. A periodic estate is one for a set term, which is automatically renewed if neither party takes steps to terminate it. Most modern leases of real property and buildings establish periodic estates. A tenancy at will is one that may be terminated by the tenant or the landlord; it is generally interpreted by a court as being implied from the facts. An estate at sufferance arises when a tenant continues to occupy the land after the right to occupancy has expired; the tenancy subsists only so long as the landlord does not object.
The struggle over whether land should be freely alienable dominated English land law; it was resolved by the 18th cent. when the alienation of land could no longer be restricted beyond a limited period. The ultimate effect of this tendency was to assimilate the law of real property in most important respects to that governing personal property. At the time of the American colonization this development to free alienation was already well advanced; hence, few of the typically feudal features of land law were adopted in America. Today some of the states provide that landownership shall be in free and common socage and others that it shall be alodial. In practice there is little difference.
In modern times land tenure has been a vexing economic and political issue throughout the world; it has given impetus to nationalism and to revolution, especially in largely agrarian Asia, Africa, and Latin America. In the 19th and 20th cent. there has been wide demand for small farmer ownership and for secure tenure for tenants.
The end of feudalism and of serfdom in Europe and elsewhere left small holders in an insecure position. After the French Revolution, security of tenure was provided for French cultivators, but elsewhere in Europe, where servile obligations were generally abolished by 1860, most of the land was possessed by nobles and other wealthy classes; tenant cultivators were subject to high rents, easy ejection, and no allowance for improvements. Thus there arose the demand for peasant proprietorship through the purchase or appropriation of land by the government, which would then resell small parcels to the peasantry on easy terms.
Also, agitation began for legislation favorable to tenants regarding rent, sale, lease, land improvement, and absentee landlordism. Since the late 19th cent. such programs have been established in most countries of Europe, Ireland (see Irish Land Question) and the Scandinavian countries being among the first. Most recently in Europe, especially where the long establishment of secure tenure has led to minute subdivision, government activity has tended to favor some consolidation of holdings, as in the Netherlands.
In the 19th cent. the spacious lands of Australia, Canada, and the United States enabled the governments of those countries to grant substantial holdings cheaply to farmers, who thus became owners rather than tenants. However, problems did develop, notably in the struggle of the sheep or cattle ranchers, who desired secure tenure for the vast lands they required, against the small farmers, who in turn wanted the right to settle and own parts of these tracts.
These difficulties, particularly prominent in Australia, were resolved in the several nations by the early 20th cent., generally in favor of the small farmers. Legislation was also passed in the 20th cent. to provide secure tenure and easy farm purchase for the body of tenants who had by this time emerged. The fundamental purchase enactment in the United States was the Bankhead-Jones Farm Tenant Act (1937). In Latin America, however, the tenure problem remains widespread, and in many countries a few owners still hold most of the land, while the majority of the cultivators are squatters.
Characteristically, under customary tenures the rights of peasant transfer remain limited, obligations for the payment of rent are often imposed upon the cultivating community as a whole, and debts are hereditary from generation to generation. Such conditions still prevail in much of Africa and Asia.
In the Middle East, tenure was long dominated by customary and feudal characteristics and also by religious considerations. Under Muslim rule the state theoretically owned all land, and rent and other tenure conditions were different for Muslims and non-Muslims. A wide variety of tenures grew up, including free usage of land for religious purposes and unrestricted ownership. These have had counterparts in Europe under customary tenures. Large-scale reform and redistribution of land were begun in Egypt by the laws of 1952, and Turkey passed reforms in 1945, but in much of the region customary and semifeudal land tenures prevail.
British reforms in India also illustrate some of the complex problems of replacing customary tenures with a contractual system. In contrast to native systems, the British introduced easy transfer of agricultural holdings and allowed foreclosure of property for debt. Consequently the commercially knowledgeable class, the moneylenders, were able to gain many holdings because the poor and inexperienced peasantry contracted unrepayable debts. Where permanently low rents were established in India, landholders sublet at outrageous prices when land values rose. Similar problems have arisen elsewhere in the transformation from customary to contractual tenures.
In those Asian countries where American influence became strong, tenure reform has usually taken place, as in Japan (1946) and Korea (1948). There and elsewhere, experience has shown that without accompanying reforms of agricultural credit, education, and taxation, enabling peasant proprietors to discharge contractual obligations, tenure reforms are only partly successful. The Communist government of the former Soviet Union long vacillated, for economic and political reasons, between collectivization of land (see collective farm) and allowing a substantial number of private holdings. The same situation has existed under other Communist governments, including that of China.
See F. Pollock, The Land Laws (3d ed. 1896); W. S. Holdsworth, An Historical Introduction to the Land Law (1927); C. J. Moynihan, Introduction to the Law of Real Property (1962).
Academic tenure is primarily intended to guarantee the right to academic freedom: it protects teachers and researchers when they dissent from prevailing opinion, openly disagree with authorities of any sort, or spend time on unfashionable topics. Thus academic tenure is similar to the lifetime tenure that protects some judges from external pressure. Without job security, the scholarly community as a whole might favor "safe" lines of inquiry. Tenure makes original ideas more likely to arise, by giving scholars the intellectual autonomy to investigate the problems and solutions about which they are most passionate, and to report their honest conclusions. In economies where higher education is provided by the private sector, tenure also has the effect of helping to insure the integrity of the grading system. Absent tenure, professors could be pressured by administrators to issue higher grades for the attracting and keeping a greater number of students.
Universities also have economic rationales for adopting tenure systems. First, job security and the accompanying autonomy are significant employee benefits; without them, universities might have to pay higher salaries or take other measures to attract and retain talented or well-known scholars. Second, junior faculty are driven to establish themselves by the high stakes of the tenure decision (i.e., lifetime tenure vs. job loss), arguably helping to create a culture of excellence within the university. Finally, tenured faculty may be more likely to invest time in improving the universities where they expect to remain for life; they may also be more willing to hire, mentor and promote talented junior colleagues who could otherwise threaten their positions. Many of these rationales resemble those for senior partner positions in law and accounting firms.
One cost of a tenure system is that some tenured professors may not use their freedom for the common good. Tenure has been criticized for allowing senior professors to become unproductive, shoddy, or irrelevant. Universities themselves bear this risk: they pay dearly whenever they guarantee lifetime employment to an individual who proves unworthy of it. Universities therefore exercise great care in offering tenured positions, first requiring an intensive formal review of the candidate's record of research, teaching, and service. This review typically takes several months and includes the solicitation of confidential letters of assessment from highly regarded scholars in the candidate's research area. Some colleges and universities also solicit letters from students about the candidate's teaching. A tenured position is offered only if both senior faculty and senior administrators judge that the candidate is likely to remain a productive scholar and teacher for life.
It has also been suggested that tenure may have the effect of diminishing political and academic freedom among those seeking it - that they must appear to conform to the political or academic views of the field or the institution where they seek tenure. For example, in 'The Trouble with Physics', Lee Smolin says "...it is practically career suicide for young theoretical physicists not to join the field [of string theory]. It is certainly possible to view the tenure track as a long-term demonstration of the candidate's political and academic conformity. Patrick J. Michaels, a professor at the University of Virginia: "...tenure has had the exact opposite effect as to its stated goal of diversifying free expression. Instead, it stifles free speech in the formative years of a scientist's academic career, and all but requires a track record in support of paradigms that might have outgrown their usefulness."
In North American universities and colleges, the tenure track has long been a defining feature of employment. However, it is becoming less than universal. Many colleges and universities—particularly those that do not seek a world-class research reputation—have taken advantage of the large supply of academic job applicants to reduce their tenure commitments. In North American universities, positions that carry tenure, or the opportunity to attain tenure, have grown more slowly than non-tenure-track positions, leading to a large "academic underclass". For example, most U.S. universities currently supplement the work of tenured professors with the services of non-tenured adjunct professors, academics who teach classes for lower wages and fewer employment benefits under relatively short-term contracts.
For these, and other reasons, academic tenure was officially restructured in public universities in the United Kingdom, by the Thatcher government in the 1980s. It is no longer offered in Australia, New Zealand and in most of Europe. Note that most European university systems do not allow any teaching by young researchers, postgraduates, post doctoral fellows, or residents. This is especially the case in Germany, where practice in universities (but not Advanced technical colleges) often differs from theory. In principle, teaching duties in German Universities are restricted to tenured faculty and a few non-tenured staff members paid for research and teaching. In reality, much teaching is done by non-tenured research students and adjunct faculty. In France, tenure is granted early in academic ranks as well as to CNRS and other researchers.
Outside the United States, it is still common to offer a long contract to candidates who pass a less stringent review or confirmation, but with somewhat less job security than in lifetime tenure systems. Moreover, tenure is under attack in state universities in the United States.
In one debate of the Cornell Board of Trustees, in the 1870s, a businessman trustee argued against the prevailing system of de facto tenure, but lost the argument. Despite the power retained in the board, academic freedom prevailed. Another example is the 1894 case of Richard Ely, a University of Wisconsin-Madison professor who advocated labor strikes and labor law reform. Though the Wisconsin legislature and business interests pressed for his dismissal, the board of trustees of the university passed a resolution committing itself to academic freedom, and to retaining him (without tenure):
"In all lines of investigation the investigator should be absolutely free to follow the paths of truth, wherever they may lead. Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state of Wisconsin should ever encourage that continual and fearless winnowing and sifting by which alone the truth can be found."
The AAUP's declaration of principles recommended that:
While the AAUP pushed reform, tenure battles were a campus non-issue. In 1910, a survey of 22 universities showed that most professors held their positions with "presumptive permanence". At a third of colleges, assistant professor appointments were considered permanent, while at most colleges multi-year appointments were subject to renewal. Only at one university did a governing board ratify a president’s decisions on granting tenure. Finally, there were approximately 20 complaints filed in 1928 with the AAUP, and only one merited investigation. Colleges slowly adopted the AAUP’s resolution; de facto tenure reigned; usually reappointments were permanent. ppo
The most significant adoption of academic tenure occurred after 1945, when the influx of returning GIs returning to school led to quickly expanding universities with severe professorial faculty shortages. These shortages dogged the Academy for ten years, and that is when the majority of universities started offering formal tenure as a side benefit. The rate of tenure (per cent of tenured university faculty) increased to the current 52 per cent, and remains at that rate, with little fluctuation. In fact, the demand for professors was so high in the 1950s that the American Council of Learned Societies held a conference in Cuba noting the too-few doctoral candidates to fill positions in English departments. During the McCarthy era, loyalty oaths were required of many state employees, and neither formal academic tenure nor the Constitutional principles of freedom of speech and association were protection from dismissal. Some professors were dismissed for their political affiliations, but of these, some likely were veiled dismissals for professional incompetence. During the 1960s, many professors supported the anti-war movement against the war with Vietnam, and more than 20 state legislatures passed resolutions calling for specific professorial dismissals and a change to the academic tenure system. University boards of trustees stood their ground and suffered no consequences.
Later cases specified other bases for dismissal: (i) if a professor’s conduct were incompatible with her duties (Trotman v. Bd. of Trustees of Lincoln Univ., 635 F.2d 216 (2d Cir.1980)); (ii) if the discharge decision is based on an objective rule (Johnson v. Bd of Regents of U. Wisc. Sys., 377 F. Supp 277, (W.D. Wisc. 1974)). After these cases were judged, the number of reported cases in the matter of academic tenure increased almost twofold: from 36 cases filed during the decade 1965–1975, to 81 cases filed during the lustrum 1980–1985.
During the 1980s there were no notable tenure battles, but three were outstanding in the 1990s. In 1995, the Florida Board of Regents tried to re-evaluate academic tenure, but managed only to institute a weak, post-tenure performance review. Likewise, in 1996 the Arizona Board of Regents attempted to re-evaluate tenure, fearing that few full-time professors actually taught university undergraduate students, mainly because the processes of achieving academic tenure underweighted teaching. However, faculty and administrators defended themselves and the board of trustees dropped its review. Finally, the University of Minnesota Regents tried from 1995 to 1996 to enact 13 proposals, including these policy changes: to allow the regents to cut faculty base- salaries for reasons other than a university financial emergency, and included poor performance, and firing tenured professors if their programs were eliminated or restructured and the university was unable to retrain or reassign them. In the Minnesota system, 87 per cent of university faculty were either tenured or on the tenure track, and the professors vehemently defended themselves. Eventually, the president of the system opposed these changes, and weakened a compromise plan by the Dean of the law school that failed. The board chairman resigned later that year.
The academic department will then vote to recommend the candidate for tenure based on the tenure-eligible professor's record in teaching, research, and service over this initial period. The amount of weight given to each of these areas varies depending on the type of institution the individual works for; for example, research intensive universities value research most highly, while more teaching intensive institutions value teaching and service to the institution more highly. The department's recommendation is given to a tenure review committee normally comprising faculty members and administrators; it may be a standing committee or an ad hoc committee, depending on the institution. If this committee recommends that the professor be awarded tenure, their action must be approved by the institution's top officer (usually a president, chancellor, or provost) or by its governing board (usually a Board of Trustees or Board of Regents).
A candidate denied tenure is sometimes considered to have been dismissed, but this is not entirely accurate: employment is often guaranteed for a year after tenure is denied, so that the non-tenured professor can conduct an extended search for new employment. Also, some prestigious universities and departments in the US award tenure so rarely that being denied it is scarcely an insult.
Professors who have earned tenure at one institution are often offered tenure along with any new position (as "senior hires"); otherwise, tenured faculty would rarely leave to join different universities.
Outside the US and Canada, a variety of contractual systems operate. Commonly, a procedure is used to move staff members from temporary to "permanent" contracts. Permanent contracts, like tenure, may still be broken by employers in certain circumstances: for example if the staff member works in a department earmarked for closure.
In 1994, a study in The Chronicle of Higher Education found that "about 50 tenured professors nationwide are dismissed each year for cause". A study in the Wall Street Journal published January 10 2005 estimated that 50 to 75 tenured professors (out of about 280,000) lose their tenure each year.
See also the American Association of University Professors (AAUP) website.
Tenure at many universities depends solely on research publications and research grants although the universities' official policies are that tenure depends on research, teaching and service. Even articles in refereed teaching journals and teaching grants may not count towards tenure at such universities.
At some universities, the department chairperson sends forward the department recommendation on tenure. There have been cases where the faculty voted unanimously to tenure an individual but the chairperson sent forward a recommendation not to grant tenure despite the faculty support.
Tenure decisions sometimes seem arbitrary. Tenure candidates with impressive lists of publications and accomplishments have been denied tenure while those with far fewer accomplishments have obtained tenure at the same institution.
Tenure decisions can result in fierce politics. In one tenure battle at Indiana University, an untenured professor was accused of threatening violence against those who opposed his promotion, his wife briefly went on a hunger strike, and many called for the entire department to be disbanded.