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Common ownership and equality of autonomy.

In recent years, common ownership has enjoyed unprecedented favour among policy-makers and citizens in the United States, Canada, and Europe. Conservation land trusts, affordable-housing co-operatives, community gardens, and neighbourhood-managed parks are spreading throughout major cities. Normatively, these common-ownership regimes are seen as yielding a variety of benefits, such as a communitarian ethos in the efficient use of scarce resources, or greater freedom to interact and create in new ways. The design of common-ownership regimes, however, requires difficult trade-offs. Most importantly, successful achievement of the goals of common-ownership regimes requires the limitation of individual co-owners' ability to freely use the common resource, as well as to exit the common-ownership arrangement.

This article makes two contributions. First, at the normative level, it argues that common ownership has the potential to help foster greater "equality of autonomy". By "equality of autonomy", I mean more equitable access to the material and relational means that allow individuals to be autonomous. Second, at the level of design, this article argues that the difficult trade-offs of common-ownership regimes should be dealt with by grounding the commitment to equality of autonomy in the context of specific resources. In some cases, this resource-specific design helps to minimize or avoid difficult trade-offs. In hard cases, where trade-offs cannot be avoided, this article offers arguments for privileging greater equality of autonomy over full negative freedom.

Au cours de ces dernieres annees, la propriete commune a joui d'un avantage sans precedent aupres des decideurs politiques et des citoyens des Etats-Unis, du Canada et d'Europe. Le nombre de fiducies de preservation de terrains, de logements abordables, de cooperatives, de jardins communaux et de parcs geres par des quartiers est en croissance dans toutes les grandes villes. D'un point de vue normatif, ces regimes de proprietes communes impliquent de nombreux benefices, comme l'esprit communautaire de l'utilisation efficace de ressources peu abondantes, ou la plus grande liberte d'interagir et de creer de facons nouvelles. La conception du regime de propriete commune, cependant, demande des compromis difficiles. Plus important encore, pour atteindre avec succes les objectifs des regimes de propriete commune, il faut limiter la capacite des coproprietaires individuels a utiliser la ressource commune librement ainsi que celle de sortir de l'arrangement de propriete commune.

Cet article a deux roles. Premierement, au niveau nermatif, il presente l'argument que la propriete commune a le potentiel d'encourager une plus grande << egalite d'autonomie >>. Par << egalite d'autonomie >>, je veux dire un acces plus equitable aux moyens relationnels et materiels qui permettent a un individu detre autonome. Deuxiemement, au niveau de la conception, cet article avance que les compromis difficiles des regimes de propriete commune devraient etre geres en renforcant l'engagement a l'egalite d'autonomie dans le contexte de ressources specifiques. Dans certains cas, cette conception contextuelle pour les ressources specifiques aide a minimiser ou eviter de durs compromis. Dans les cas difficiles ou les compromis ne peuvent etre evites, cet article offre des arguments pour privilegier une plus grande egalite d'autonomie plutot que des libertes negatives completes.
Introduction

  I. The Commons Debate
     A. Antitragedy Views and the Benefits of Common
        Ownership
     B. The Fundamental Design Problem of Common
        Ownership: The Trade-Off Between Different
        Kinds of Freedom

 II. The Debate of Collective Ownership on Nineteenth-Century
        Europe
     A. Changing Attitudes Toward Collective Ownership
     B. The Italian Bill on the Reorganization of Land
        Collective and the Commitment to Equality of
        Autonomy
III. The New Commons and Equality of Autonomy
     A. Equality of Autonomy
     B. Equality of Autonomy and Trade-Offs of
        Common Ownership
     C. Applications
        1. Affordable-Housing Co-operatives
        2. Community Gardens
Conclusions


Introduction

For a long time, common ownership had little appeal in Western liberal democracies. In the collective imagination, common ownership was associated with nightmares of Soviet peasants forced into kolkhozes and deprived of their land, and with homeowners losing their homes to organizations of tenants. (1) Political and legal culture in the United States has been particularly unsympathetic to common ownership. The story of common ownership in America is the story of closing the open, rural landscape of early America. (2) It is the story of courts' reluctance to protect citizens' common rights in tidal water resources. (3) It is the story of the mid-nineteenth-century development of a system of property rights in the California gold mines, earlier treated as a commons. (4) And it is the story of the extraordinary flourish, followed by the failure, of the utopian religious communities committed to communal ownership. (5) The commons were also unpopular among scholars, who were still influenced by pessimistic accounts, such as Hardin's allegory of the "tragedy of the commons" (6) and Demsetz's unidirectional theory of property evolution (7) from the commons to private property regimes.

In recent years, however, common ownership has enjoyed unprecedented favour. The limitations of zoning, taxation, and other public land-use control measures as means for regulation and redistribution have induced policy-makers and citizens to turn to a long-neglected private law tool, common property, with new interest. (8) Community land trusts have experimented with distributing the costs and benefits of land development through common ownership rather than through taxation. Conservation land trusts rely on common-ownership schemes to preserve open space or protect ecological resources. Affordable-housing co-operatives are increasingly seen as successful means for making good-quality affordable housing available to medium- and low-income buyers. Community gardens and neighbourhood-managed parks, where groups of private citizens reclaim vacant urban open spaces as commons, are spreading in US cities.

Scholars have also dropped their "tragic" views. An "antitragedy" view first emerged among political scientists, ecologists, and anthropologists, who argued that Hardin's thesis lacked "historical, theoretical, or cultural veracity." (9) Antitragedy views have now become popular among property scholars as well. Numerous antitragedy articles have appeared in law reviews. (10) The 2011 edition of the Common Core of European Private Law conference was called Commons Core, (11) and the famous Max Planck Institute has established a department devoted to the research on collective goods. (12) Among supranational decision makers, "the [World] Bank is also deeply engaged in, and on the cutting edge of, commons discourse." (13)

That common ownership is in vogue in some circles does not prove that it is the only or the best form of ownership. Contrary to what some might suggest, however, this article argues that common property is much more than a passing fancy. It addresses the questions of why and when common ownership is a good option.

In the new commons discourse, common-ownership regimes hold out the promise of realizing a variety of desirable values: democratic and responsible management of natural resources; participatory production of diverse cultural artifacts and information; and efficient use of scarce resources when changes in prices or transaction costs make private property inefficient. (14) The idea that common ownership could deliver greater economic equality, however, has been largely absent from this new commons discourse. This is a puzzling absence: the word "commons" has always had "a special resonance in political theory," embedded with themes of "equality and inclusiveness". (15) Further, with Occupy Wall Street in the headlines and statistics showing that twenty per cent of Americans control about eighty-five per cent of American wealth, the concern for equality is gaining centrality in the public discourse. (16)

This article argues that common ownership has the potential to help foster greater "equality of autonomy", by which I mean more equitable access to the material and relational means that allow individuals to be autonomous. I turn, for inspiration, to late nineteenth-century Europe, where policy-makers and law professors revised earlier, pessimistic ideas about the inevitable failure of common ownership and instead debated its potential. Their debate stands as a rare moment when conservatives and progressives alike talked about property law in a new way--as a means of equalizing, rather than maximizing, the enjoyment of autonomy. They set aside the focus on protecting the individual owner's autonomy that had characterized property debates since the Enlightenment and the rise of liberalism. Instead, they privileged the idea that collective landownership could make the autonomy that derives from owning land available on a more equal basis. (17)

The notion of equality of autonomy that I propose differs from conventional arguments about the autonomy afforded by property rights in two respects. First, I suggest a different notion of autonomy. The autonomy that most advocates of full property rights have in mind is "negative freedom", that is, the absence of external restraints imposed by the state or voluntarily placed by others. (18) By contrast, the autonomy that common ownership fosters is a "thicker" or multi-dimensional type of autonomy, one that many have proposed in recent debates within liberalism. (19) It involves the availability of means that enable individuals to be autonomous. (20) Autonomy requires, along with negative freedom, positive freedom, that is, the basic material resources (a home, food, education) that enable us to have a meaningful set of options. (21) Further, to be autonomous, we need the ability to communicate and debate ideas in order to make, and take responsibility for, choices that we feel are authentically "our own". (22) Second, I am concerned with patterns of distribution of autonomy. If this thicker autonomy is important for human flourishing, then it should be distributed more equally.

Common-ownership regimes such as affordable-housing co-operatives and community gardens promote greater equality in the latter two dimensions of autonomy. First, they provide co-owners with a relational network that facilitates "authentic" choices. Second, they are an important item in any package of policy proposals that ensure equality of access to basic resources such as housing or green space, and their related social and health benefits.

The commitment to equality of autonomy also offers guidance regarding the central challenge of common-ownership design: the tension between equality and negative freedom. Can common-ownership regimes be both egalitarian and liberal? In other words, can housing co-operatives or community gardens be effective in advancing greater equality in the material and relational dimensions of autonomy while also fully protecting co-owners' negative freedom, in particular, their ability to exit common-ownership regimes? For common ownership not to be second-class ownership, individual co-owners need to have negative freedom (i.e., some margin for autonomous-use decisions, as well as the ability to freely exit the common-ownership arrangement). Historical and comparative studies, however, show that the experiments with common ownership that were the most successful in achieving high levels of equality, such as the Israeli kibbutzes or the utopian religious communities in the United States, were so because they limited members' negative freedom. (23)

This trade-off between negative freedom and equality has been dealt with in one of two ways. Some invoke consent: co-owners have freely consented to limits on use and exit. By contrast, Hanoch Dagan and Michael Heller have proposed the "liberal commons", a default regime applicable to a wide set of common-ownership regimes, from marital property to business partnerships, that satisfactorily balance the difficult trade-offs between co-owners' ability to exit and the egalitarian or relational rewards of common ownership. (24) I argue that neither answer is fully convincing. The former raises difficult questions about the economic and social constraints on consent. The latter fails to discuss the hard cases where trade-offs simply cannot be avoided.

I argue that these conflicts between negative freedom and equality should be dealt with by privileging the commitment to equality of autonomy. The approach that I propose negotiates the difficult trade-offs between greater equality and less negative freedom for co-owners in the context of specific resources. It looks at the peculiar characteristics of housing, urban land, or water, and it weighs the plural values and interests they implicate. In some cases, this resource-specific design helps to minimize or avoid difficult trade-offs. In hard cases where trade-offs cannot be avoided, I make arguments for privileging greater equality of positive and relational autonomy over full negative freedom.

This article is structured in three parts. Part I presents the contemporary debate on the commons and illustrates the central dilemmas involved in the design of common-ownership regimes. Part II turns to the European debate of the late nineteenth and mid-twentieth centuries that led to the adoption of the 1894 bill on the reorganization of land collectives in Italy. It argues that, in this latter debate, socialists and conservatives agreed that common ownership could foster greater equality of autonomy. Part III presents arguments for foregrounding a similar idea of equality of autonomy in the current commons debate and discusses the normative and design decisions presented by two common-ownership regimes that have the potential to promote greater equality of autonomy: affordable-housing co-operatives and community gardens.

I. The Commons Debate

A. Antitragedy Views and the Benefits of Common Ownership

Antitragedy views have gained wide consensus among legal scholars, triggering the proliferation of a vast commons literature. (25) The debate is multi-faceted. It provides explanations for the frequent reversal of the Demsetzian path from open access to private property rights. It asks which values and goals a commons regime ought to promote and facilitate. Finally, it considers which legal rules or design principles would best accomplish these goals. Three antitragedy views have emerged, centred on community, freedom, and efficiency.

A prolific strand of scholarship, inspired by Elinor Ostrom's work, points to the communitarian rewards of common ownership. (26) The communitarian view comes in two variants: an "ethno-identitarian" variant and a "civic-republican" one. According to the former, a durable regulatory scheme would have to reflect and strengthen the social identity of a close-knit group with shared beliefs, history, or needs. Examples of these close-knit groups are the "lobster gangs" of Maine, a Swiss alpine community, or the Israeli kibbutz. The ethno-identitarian claim is that the ideological homogeneity and continuing interaction of group members generate governance rules that are conducive to efficient resource management while also rewarding other vital concerns, such as community or equality. (27)

According to the latter, civic-republican view, a well-designed common property regime may create community where community did not previously exist. (28) Proponents of the civic-republican view argue that the interactive problem solving of successful commons is also at the "core ... of the community development process." (29) Common ownership delivers the desired outcomes of a civic-republican ethos (i.e., participation, deliberation, knowledge production, and responsibility). While some proponents of this view focus on robust design principles, (30) others excavate historical examples of community building that turned out well. (31)

In contrast to a focus on community, a second strand of commons scholarship sees greater freedom as the reward of common ownership. The idea that open access may yield greater freedom than traditional privatization has been central to the intellectual property debate on the public domain. With the advent of the "networked information economy", (32) much of the commons debate has moved from a focus on land to a focus on information. (33) The growth of intellectual property law and the resulting "propertization" of information mean the enclosure of the public domain. This enclosure stifles political and cultural freedom. In response, the public domain movement seeks to protect the commons of information against the encroachment of private property.

For its advocates, protection of the public domain promotes freedom in a variety of ways. (34) It secures the availability of information from "diverse and antagonistic sources," thereby protecting freedom of speech, which in turn enables individual self-authorship. (35) It also allows individuals to interact and create without restrictions, thereby sustaining innovation and productivity. The end result is an active, participatory cultural and civic life. (36)

A third strand of commons scholarship shifts the focus from community or freedom to efficiency. Law and economics scholars argue that, contrary to the Hardinian and Demsetzian narratives, common ownership may be efficient in some instances. They focus on variations in transaction costs to make sense of reversals from private property rights to open access or common property alternatives. In some cases, changes in relative prices due to technological advances or other outside causes may explain the reversal. For example, "[i]nput and output price changes might suddenly make farming in a given location ... unprofitable," inducing farmers to cease policing boundaries. (37) That lack of policing may reinstate a regime of open access for hikers and hunters. (38)

Other law and economics scholars point to historically significant examples of efficient persistence of semicommon property. (39) The "open field" system, which displaced earlier, individual tenure in medieval and early modern Europe, had significant efficiency benefits. Peasants owned scattered strips of land (40) for grain growing but also used the land collectively for grazing. "This enabled them to take advantage of economies of scale in grazing and private incentives in grain growing.... The semi-commons allowed operation on two scales simultaneously." (41)

Still others maintain that the number of owners is, along with the configuration of the asset and the scope of dominion, one of the three dimensions of property rights that private actors and policy-makers should adjust to maximize property values. (42) Examining these three aspects together shows how the optimal number of owners is not necessarily one. For example, underconsumption and overconsumption costs are a trade-off in large-asset management. Single owners may be unable to consume large assets on their own; however, reconfiguration into smaller units and privatization may be far more costly than the potential for overconsumption as a commons. Sometimes the latter is the optimal solution.

A communitarian ethos, freedom to connect and create, and efficiency are newcomers to the commons debate. Historically, the concern with greater economic equality has been central to experiments with common ownership. In Europe, between the twelfth and the nineteenth centuries, use rights on common village lands or land collectives provided the poorest layer of the rural population with resources such as timber or forage, and at times, with a small income. (43) Interestingly, equality has remained largely absent from the contemporary commons debate.

B. The Fundamental Design Problem of Common Ownership: The Trade-Off Between Different Kinds of Freedom

In their 2001 article, Hanoch Dagan and Michael Heller made a fresh start in the commons debate by highlighting and addressing the fundamental problem of common-ownership regimes. Can the commons be liberal? Can a commons regime successfully promote the end envisioned, be it "community" or "efficiency", while also protecting individual co-owners' negative freedom (i.e., their ability to change their minds, pursue new ends, and eventually, leave)? Until now, legal scholars and policy-makers have relied on design principles that make happy solutions difficult to imagine. By and large, they have favoured the protection of the interests of co-owners as a group at the expense of liberal exit. (44) And historically, to liberal eyes, the communes that have achieved their goals appear utterly illiberal; (45) their success has depended upon limiting their individual members' exit options. For example, to achieve a high degree of equality while also preventing adverse selection, the kibbutz movement has made exit costly by requiring departing members to forfeit all, or almost all, of their claims to the group's joint assets. (46)

Dagan and Heller argue that happy solutions are possible and that there is no need for difficult trade-offs between co-owners' negative freedom and other substantive values. They have translated their commitment to liberal autonomy into a regime of default rules. (47) Minor fine tuning makes these rules applicable to a substantial subset of common-ownership settings, such as marital property, partnerships, condominiums, and close corporations. This regime, the liberal commons, facilitates efficient communitarian co-operation while also protecting a whole family of rights based on negative freedom, such as exit, dissociation, the right to mobility, and the right to a fair share of the common resource.

For example, applied to marital property, the liberal commons regime reinforces commitment to the marital community, where spouses share with each other without reference to individual desert. At the same time, the regime protects the individual spouse's negative freedom. (48) As an illustration, consider the difficult question of the proper division of a spouse's future earning potential gained during marriage. Those who care about protection of the marital community may favour the principle that academic degrees are marital assets subject to equal division. A key objection to that principle arises from negative freedom: the spouse who received the degree during the marriage would be locked into a career after the marriage. For example, a medical student might be obliged to practice as a physician in order to pay her former spouse half of the earning potential that they generated together. (49) A liberal commons regime solves the dilemma with the rule that the increased earning capacity is only subject to division after it is exercised and earnings are realized. Division safeguards community by recognizing that the development of careers during marriage is centrally collective, but dividing only what is realized in order to allow the spouse to make autonomous choices in the future. (50)

Dagan and Heller's liberal commons is an ambitious experiment in institutional design, but happy solutions to difficult trade-offs are not always possible. Take, for example, affordable-housing co-operatives, a form of common ownership that "has been edging closer to the policy mainstream in recent years." (51) They occupy "the fertile middle ground between arid dichotomies that have historically dominated American housing policy," where housing has had to be either publicly or privately owned. (52) Typically, ownership is split between a non-profit entity and the residents who own shares in the co-op. The residents' shares give occupancy rights but also come with obligations and limitations concerning aspects of the co-owners' autonomy, specifically the right to transfer and the right to use. (53) The right to transfer gives way to resale restrictions: "[o]ften, in exchange for very favourable public financing, [residents] ... must agree to restrictions on the amount of equity [they] ... can retain when the unit is sold." (54) These limits are meant to keep the unit affordable and hence available to other low-income buyers. There may also be constraints on who may buy units: for instance, the co-op may have a right of first refusal in order to allow it to purchase the unit for resale to buyers who are of low-income status. (55) Further, there may be limits on the right to pass the property on at death. (56)

Use entitlements are limited as well. First, owners are required to occupy the property, (57) and subletting is regulated or restricted. (58) Second, while residents have the right to manage the property, they may be subject to review by the non-profit entity, in order to prevent gold plating, deterioration, or abusive or discriminatory management. (59)

These limits on co-owners' negative freedom (i.e., on the right to freely use, transfer, and exit) vary in nature and in justification. The inability to pass one's share on at death is severe. Other limits are less invasive. Consent requirements, for instance, may amount to a mere reasonableness analysis not uncommon in common-interest communities, such as condominiums. Some limits, though motivated by concerns that may be criticized as paternalistic, are necessary to ensure the effectiveness and viability of the project. They reflect a trade-off between full autonomy for current co-owners and greater equality in access to housing for present and future middle- and low-income buyers. These trade-offs are nevertheless difficult because co-owners' negative-freedom interests are extremely weighty: compelling arguments can be made to support design principles that fully reflect these interests. (60)

In the case of marital property, the happier solutions of the liberal commons seem convincing but more difficult to achieve. Marriage delivers "unique goods" (e.g., intimacy, caring, and commitment) that are important to the individual spouses' self-fulfillment but are also collective in nature. (61) Sacrifices of a spouse's individual autonomy, such as the division of marital property on the basis of an equal-division rule rather than an individual-contribution principle, are entirely consistent with, and reflective of, this vision of marriage.

By contrast, the constraints on members' negative freedom that are typical of affordable-housing co-operatives may appear more puzzling and harder to justify. These communities differ from the liberal egalitarian community of marriage in several respects. First, they are large and heterogeneous. The intimate partial fusion of the marital couple is made possible by a commonality of emotions, interests, and projects. But members of an affordable-housing co-operative have widely diverse life plans. They belong to different layers of the worse off, entailing differences in aspirations and in prospects for socio-economic success. Some have the desire and ability for social mobility, while others are less upwardly mobile for cultural or socio-economic reasons. (62) Second, while marriage is usually conceptualized as voluntary, entry into an affordable-housing co-operative involves an aspect of coercion due to material insecurity and a limited availability of options. Would-be home owners with low incomes typically have a choice between home ownership under an affordable-housing regime or renting. (63) In Chicago, for example, limited equity co-operatives "have attracted and retained a population with an income that is too low to enter the private housing market, but too high for [them to qualify for] most subsidized housing." (64) Third, while spouses commit to a long-term marital project, members of affordable-housing communities envision different time horizons. Changes in a variety of life circumstances may make easier and less costly exit options more important. (65) Finally, while the unique goods that spouses expect from marriage are inherently collective, members of affordable-housing co-operatives rely on the benefits of cooperation and community while also seeking highly individualistic goods such as wealth accumulation and privacy. Housing is an economic good, (66) but it is also a guarantee of privacy, safety, and freedom. (67)

Another way to deal with the tension between the goals of common ownership and negative freedom is to argue that the constraints on negative freedom that are typical of affordable-housing co-operatives are justified by the members' consent. Full disclosure is an integral part of entering these commons. Prospective buyers or members learn the "rights, responsibilities, and limitations that accompany the property" that they are buying. (68) Buyers, one could say, are "happy slaves": (69) they are free agents bound only by their own choices. However, the consent argument presents a number of difficulties.

For instance, "consent theory is ... entangled in substantive concerns ... about when choice is [actually] voluntary." (70) A choice without reasonable alternatives is not voluntary. (71) As is mentioned above, members of affordable-housing co-operatives have limited alternatives. Consent theory also presupposes that the free agent has chosen her social role. Members of affordable-housing co-operatives may be steeped in a specific "culture of poverty" (72) or "culture of property" (73) because of a combination of unchosen characteristics, including ethnicity, class, and income. These determinants of their social role influence the choices that members of affordable-housing co-operatives make.

The example of affordable-housing co-operatives shows that happy solutions to difficult trade-offs are not always possible. The best that we can do is to provide a normatively appealing justification for such trade-offs. The next section of this article revisits the idea of equality of autonomy from the nineteenth-century European debate on common ownership. This notion restores the concern with economic equality to the commons debate and provides an appealing justification for hard trade-offs that disadvantage the negative freedom of individuals.

II. The Debate on Collective Ownership in Nineteenth-Century Europe

A. Changing Attitudes Toward Collective Ownership

The reassessment of Demsetz's and Hardin's tragic accounts of common ownership and the proliferation of antitragedy views is deja vu to historians of European law. In Europe, a similar shift in attitude from pessimism and hostility toward communal proprietary regimes to renewed interest in them occurred significantly earlier. For a couple of decades late in the nineteenth century, collective property was a topic of research and heated debate among scholars, as well as a viable option for policy-makers. (74)

For centuries in most Western European countries, lands had been held, used, and managed in common by groups of owners. Collectively owned lands and collective use rights were "an essential lubricant of the rural economy." (75) They provided the lower strata of the rural population with sustenance and, at times, surplus income. (76) A vital element in the social and economic fabric, these forms of collective landownership differed widely but fell into three main types. (77) The first type consisted of use rights held in common by the inhabitants of a village or town over lands owned either by the town as public property or by a private landowner. These use rights were limited entitlements to specific uses, such as grazing, lumbering, and hunting. (78)

In contrast to these limited use rights, the second type of collective property consisted of lands owned in common by an open group, often the inhabitants of a village or town. The entitlement was ampler than a specific use right, each "owner" having the right to use and manage the land, to appropriate its fruits and profit, and to exclude non-owners. Each male individual who resided in the village for a certain period of time became an owner. (79)

The third type of communal property consisted of lands owned by a closed group, usually a small number of families and their descendants. These agrarian collectives were centuries old and numerous. They varied in name and organizational structure from region to region. (80) Most of them still exist. (81)

While these forms of collective ownership had existed for centuries, it was only in the eighteenth and nineteenth centuries that they became a matter of concern for the legislature. The development of a tragic attitude toward collective ownership, in many respects similar to Hardin's idea of a tragedy of the commons, raised the question of how to regulate collective ownership. In both France and Italy, the question was whether to suppress or to reorganize the existing collective landownership regimes. This question fuelled a passionate response from the parties involved (i.e., the landowners and the peasantry), attracting a great deal of attention among everyone from experts to the general public. (82)

The tragic attitude that prevailed for most of the nineteenth century came as no surprise. In Europe, the century following the French Revolution of 1789 was the "age of [individual] property". (83) '"Whatever the grand words adorning the revolution,' wrote Hippolyte Taine, 'it was essentially a transformation of property"' (84)--the transformation of a feudal system, based on privileges and prerogatives, into a modern social and legal system based on the individual's absolute property rights. Before the French Revolution, lands were subject to multiple claims. Property rights were split between a subject and users. The subject, usually a feudal lord, had direct or eminent ownership (i.e., title), while users had utile ownership (i.e., use rights). (85) The major achievement of the revolution was to reduce or to cancel feudal claims, instead awarding absolute property rights to the individuals who held utile ownership. (86) Hence, in the post-Revolutionary sensibility, the very idea of multiple owners came to be associated with feudalism and to be seen as backward.

By contrast, individual ownership was seen as conducive to progress and happiness. As the French jurist Germain Garnier put it, "[T]he more earth is covered with societies of property owners, the greater the chance for happiness for the whole species." (87) A tragic view of collective ownership dominated among lawyers and economists. One proponent of what we could call an early law and economics approach (88) asked, "What love or labour can one invest in these [collective] lands knowing that no personal benefit can result and that the only possible return would come from overusing them at the expense of others?" (89)

The general ideological commitment to individual property and the tragic tale of collective ownership were mirrored in legislation. Collective property was virtually absent from the civil codes of the "age of property". In the Code civil des Francais (1804), collective ownership was relegated to absolute marginality: article 542 barely mentioned it. (90) The Italian Codice civile of 1865 made no mention of collective ownership at all. (91) In addition, the legislature in both France and Italy attempted to wipe out the existing forms of collective land tenure in what historians describe as a "destructive frenzy". (92) In France, the most important act of destructive frenzy was the law of June 10, 1793, which encouraged the enclosure of the commons. (93) In 1888, after a "tortuous legislative itinerary" where advocates of collective ownership fought vigorously, a law abolishing collective use rights in many provinces of central Italy was passed. (94)

However, by the late 1880s, the attitude toward collective ownership changed. The agrarian crisis that struck most of Europe in the 1880s and 1890s raised questions regarding the unequal distribution of land and made the need for agrarian reform urgent. (95) Also, in both France and Italy the conjuncture of economic crisis, social change, and collectivist propaganda brought into existence a rural socialist or anarchist political culture. (96) This development generated alarm among moderates and conservatives.

Faced with these challenges, a broad coalition of moderate and progressive policy-makers began to reassess collective ownership. Restoring the commons had long been a priority in the agenda of the socialist left. When, at the beginning of the 1890s, Jules Guesde's Parti Ouvrier launched a new strategy of alliance with the rural masses, the goal of improving and expanding the commons was among the party's priorities. (97) Similarly, in Italy, expropriating lands left idle and assigning them to cooperatives was an important item in the minimum program approved at the 1895 congress of the Socialist Party. (98)

The socialists' commitment to collective ownership was long standing. The moderates' interest in common ownership, however, was a product of the new European intellectual climate. To the moderates, collective ownership did not smack of socialism, because it had been rehabilitated by the work of European historians and legal scholars. (99) Henry Maine's Ancient Law argued that the institution of private property was not known in the ancient law and that land was owned by extended families and groups rather than by individuais. (100) Maine's work, extremely influential, sparked debate in intellectual circles in Italy and France. Emile de Laveleye's De la propriete et de ses formes primitives (1874) further developed and spread the idea that collective ownership had been the established mode of ownership for most of Western history. (101)

The new cultural openness toward collective ownership was not limited to scholars. French painter Emile van Marcke, of the famous Ecole de Barbizon, presented a canvas titled Common Grazing Field in Normandy at the Paris Salon of 1875. (102) It portrayed a stout, healthy cow on a lush, green common field, thereby visually portraying the newly rediscovered idea that the commons could be prosperous and productive.

B. The Italian Bill on the Reorganization of Land Collectives and the Commitment to Equality of Autonomy

In Italy, collective property, rehabilitated in the eyes of the intellectual and political elite, became an important item in the legislative agenda. For Italian lawyers, the 1890s were a moment of great political and intellectual energy. Property law seemed like a viable tool for experimental social change. (103) Lawyers and policy-makers of different political orientations vigorously backed legislative proposals for the reorganization of the existing land collectives. In March 1892, a large group of moderate-centrist MPs led by Tommaso Tittoni presented a bill on the reorganization of the collective domains in the former Papal States, and the bill was eventually approved in 1894 with the support of the Socialist Party. (104) The Tittoni bill was a hands-off, enabling piece of legislation rather than an ambitious exercise in institutional design. Its effect was simply to grant legal personality to the collectives and to accord them the power to draw up their regulatory statutes within a year. (105) What was unique about the Tittoni bill, however, was the normative discourse that led to its approval. In the parliamentary debate, conservatives and socialists both agreed that collective landownership could make the autonomy that derives from landownership available on a more widespread basis.

The general sense among supporters of the bill was that the late eighteenth- and early nineteenth-century enclosures and the transfer of small parcels in full ownership to peasants had failed. The parcels were often too small to support a family. The new owners were released into an agricultural economy plagued by lack of capital, limited access to credit, and inadequate productive technologies. As a result, they lost their land in short time to a rising middle class that was eager to invest in land. Supporters of the bill believed that collective ownership, with its mechanisms for co-operation and coordination, would be more effective in promoting peasants' self-sufficiency and self-empowerment.

The notion of equality of autonomy was new to the normative discourse of European property lawyers. On the left, the idea of equality of autonomy was both novel and controversial. The very word "autonomy" smacked of bourgeois individualism, (106) but Deputy Matteo Imbriani of the Radical Party powerfully articulated the new idea in the parliamentary debates relating to the Tittoni bill. He advanced autonomy and social justice, the two great ideals that move radicals. Imbriani appealled to the revolutionary aspirations of the socialists and challenged those who dismissed autonomy as a bourgeois ideal. He started his discussion of autonomy by reminding fellow deputies that autonomy is associated with a fundamental sense of human dignity and is the motor of social change. (107) "Under feudalism," he asked, "wasn't it this autonomy that moved the minds, that told the maid, dragged to the lord's bed, rise, take out the weapon you are hiding in your braids and act?" (108) In contemporary parlance, Imbriani's notion of autonomy is "effective agency," that is, the actual material means to pursue one's life plans. "Our theory," he declared, "holds that all who are worthy of this name [human] because of their work, their genius and their virtue, should own a parcel of land that ensures their independence and ability to affirm themselves in the struggle of life ... for the benefit of all." (109)

Imbriani convinced the socialists of the importance of equality of autonomy by defining autonomy as the availability of resources that enable individuals to carry out their projects. When the members of the Socialist Party signed the Tittoni bill, they signalled that they had abandoned their initial discomfort with the individualistic flavour of calls for greater equality of autonomy. Then, the socialists pushed the idea of equality of autonomy further. For Socialist Party MP Enrico Ferri, equality of autonomy required more than giving legal personality and self-regulatory power to existing collectives. It required making effective agency available to all, regardless of gender or age.

Ferri argued that collectives would have to expand membership and management to make the resources that enable individuals to be autonomous available on a more widespread basis. In most collectives, access was closed: it was limited to the descendants of the original members or conditioned upon certain property requirements, such as ownership of a specified number of head of cattle. Membership was also limited to male residents in most cases. Female-headed peasant households represented a large and particularly disadvantaged segment of the rural poor, but they could not be owners under the Tittoni bill. Accordingly, the Socialist Party proposed two egalitarian amendments to the Tittoni bill. The first amendment opened up membership to all residents, male and female, between the ages of eighteen and sixty. The second allowed women to vote in elections of officers to the governing bodies. (110) Neither amendment made it into the final legislative text.

While the left had to work through its skepticism about autonomy, conservatives had to work through their unease about calls for equality. Count Alberto Cencelli Perti noted in his 1892 book, Collective Property in Italy, that conservatives had long been committed to political equality but considered social and economic inequality natural and necessary. (111) The agrarian crisis and the peasant uprisings made conservatives realize that "since we proclaimed the principle of political equality, we should have expected that, sooner or later, the people would demand equality of material conditions." (112) Cencelli and other moderate conservatives came to see greater economic equality as crucial to the stability of the existing social order. Inequality, Cencelli noted, quoting Aristotle, is the source of all revolutions. (113) In his book, Cencelli proposed to reorganize existing collectives along egalitarian lines. (114) Rules regulating entry, that is, access to the collective lands, were the backbone of Cencelli's proposal. Cencelli differentiated between grazing lands and agricultural lands. While access to the former would be open to all, agricultural lands would be divided in lots and assigned to individual residents or households, on the basis of need, for a term of twenty years or so. (115) For Cencelli, the foremost advantage of his proposal was that it would provide the possibility of autonomy to the rural proletariat. It would give the formerly landless assignee access to a parcel of land of which she could consider herself owner, about which she could make informed management and production decisions, and on which she couldwork more profitably than as a salaried worker. (116)

Conservatives and socialists advocated greater equality of autonomy for opposing reasons. The former deemed it necessary to stifle peasant unrest and to preserve the existing social and economic order. (117) The latter saw it as the closest they could get to an ideal society where a system of free land would be re-established and "[a] voluntary system of cooperation [would] ... establish itself spontaneously." (118) At the same time, there were some fundamental points on which the parties could agree. These points made the debate surrounding the Tittoni bill unique in several respects.

First, it had the effect of reorienting, for a brief moment, the conversation on property law toward the new goal of expanding access to the autonomy afforded by property rights. This new goal temporarily displaced the old goal of maximizing the autonomy of the better off, who already owned land. Since the Enlightenment, philosophers and legal theorists have argued that property fosters individual autonomy. The general argument is that a system where individuals are granted the full package of property entitlements, comprising the right to exclude, to use, and to transfer, and where they are free to bargain in the market without interference, makes individuals autonomous. (119) It frees them from the restraints that prevent them from acting on their actual desires. This autonomy involves many abilities: freedom of action, privacy, and self-expression. As Adam Smith saw, in Jedidiah Purdy's reading of Smith, property rights and markets afford individuals the ability to pursue their projects and to bargain over the terms of their co-operation. (120) Further, property provides, both literally and figuratively, the "necessary walls" that allow individuals to retreat into their sphere of privacy. (121) Finally, in the Hegelian tradition, ownership allows individuals to constitute themselves as people by extending their will over the objects of the external world. (122) Ferri, Cencelli, and the other participants in the 1894 debate took this belief in the autonomy benefits of property further. They argued that common ownership could allow a larger number of individuals to benefit from this autonomy. (123)

Second, participants in the debate shared the pragmatic belief that property law could be changed and improved to advance new goals. Earlier calls for equality had often rejected the very institution of property as unjust. Marx and Proudhon obviously come to mind. But Ferri, Cencelli, and Imbriani believed in property. They believed in the possibility of reshaping a system of property rules that, for centuries, had been centred on private property. They defied the conventional view of private property as natural and unshakable. What they had in mind was a hybrid system in which private property and common property would complement each other.
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Title Annotation:Introduction through II. The Debate on Collective Ownership in Nineteenth-Century Europe, p. 263-293; Special Section on Social Movements and Progressive Justice
Author:di Robilant, Anna
Publication:McGill Law Journal
Date:Dec 1, 2012
Words:7255
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