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Common property redux.

I. INTRODUCTION

Common property used to be taken seriously until liberalism, with its veneration of individual private property, pushed it into the background. But recently, common property has staged a comeback as writers in law, politics, and economics have re-engaged with it. However, the material generated by the work in these diverse disciplines does not form a coherent and easily comprehensible whole. There is no agreement on the scope of the subject under discussion, or on taxonomy and terminology. The terms "commons", "liberal commons", "commons property", "common property", "common ownership", "collective property", "public property", and "the public domain" are used by different authors, but it is unclear whether these terms all name separate things and, if so, what the relationships are between them. Some authors focus on a material commons while others consider only an immaterial commons. Some authors require that a commons be based on shared ownership, while others will accept more informal sharing arrangements. One of my goals in this paper is to clarify this situation by bringing many different authors within a common structure that utilizes a more illuminating taxonomy and a more rigorous terminology. But I also want to advance the common property redux project by testing the prevailing wisdom that forms of property other than private property are defective and marginal.

This paper has four main sections. In the first two I will briefly traverse the denigration of common property by liberalism and then move on to describe and organize the recent arguments that purport to defend common property. In the third section I will advance a property taxonomy that I claim best accommodates the insights of the various authors who attempt to defend common property. This taxonomy rejects the currently orthodox categories of private property, state property, and common property. Instead its major property forms are private property, common property (as defined by C.B. Macpherson), and collective property, a property form intermediate between private and common property. Collective property has been subsumed within common property by some authors, and consequently some of the recent arguments that ostensibly defend common property turn out to defend collective property instead. However, I will argue that there are good reasons to separate common and collective property into two distinct categories. Both collective and common property turn out to be very important and underappreciated property forms, but in this paper I can only focus on one of them, and it will be common property. The final section of the paper continues the development of my taxonomy by providing a detailed account of what I claim are the three distinct types of common property: a privately created commons, public property, and the public domain.

II. THE DENIGRATION OF COMMON PROPERTY BY LIBERALISM

Common property was taken seriously in ancient and medieval times, (1) but it declined as a property form worthy of serious consideration when liberalism and capitalism became dominant. According to C.B. Macpherson, "[i]t is only when we enter the modern world of the full capitalist market society, in the seventeenth century, that the idea of common property drops virtually out of sight. From then on, 'common property' has come to seem a contradiction in terms." (2) Carol Rose supports this claim: "[M]uch of the interest in nonexclusive property began to melt away from Western legal thinking by the seventeenth century.... [T]wo centuries later, the American James Kent could observe that what was called 'common property' was rapidly vanishing from American law." (3) The decline of common property from the 17th century onwards is not surprising because it was from this time that the classical liberal tradition grew in strength, and this tradition emphasized individually owned private property. For classical liberals individual liberty was the highest value, but they believed that individually owned private property was the best tool for advancing individual liberty. The high value accorded to private property by the liberal tradition made common property seem like a primitive and defective form.

For example, in Chapter 5 of his Second Treatise of Civil Government (1690), John Focke did acknowledge that originally God gave the earth to all of mankind to hold in common. But, he argued, if an individual inextricably mixed his labour (which he alone owned because he owned his body) with a portion of what was held in common, this unilateral action legitimately transformed that portion of the common into the labourers private property (as long as "enough, and as good" was left in common for others to make a similar appropriation). So although Focke starts with common property, this property form was for him unstable and transient. It served only to provide the raw material for the creation of something more durable and valuable: individual private property rights.

The classical liberal antipathy towards common property manifested itself not just in the writings of property theorists but also in government action. It helped drive the enclosure movement in which Acts of Parliament destroyed medieval common property rights in land and replaced them with individual private property rights. (4) This antipathy also drove the response to the claims of native title by Indigenous people in lands colonized by Great Britain. Although native title was supposed to be respected by the colonizers, it often smacked too much of primitive communism to be taken seriously by those whose property thinking had been shaped by classical liberalism and its paradigm of individual private property. Consequently, legal ways were invariably found to ignore native title or to undermine it, allowing individual private property to spread over the colonies. (5)

The antagonism between the "Communist Bloc" and the "Free World" in the 20th century resulted in state-owned property and a planned economy being perceived as the major challengers to individually owned private property and a free market. This contest generated what Michael Heller describes as "the preeminent analytic tool of property theory, that is, the well-worn trilogy of ownership forms--private, commons, and state property. The trilogy has long formed the focal point for normative and practical property debates." (6) This standard taxonomy was not the product of cool conceptual analysis, but rather the product of hot politics; private property and state property were the main antagonists in a theoretical battle that was a proxy for the geopolitical contest of the Cold War. Common property, although retained as part of the trilogy, was a bit-player relegated to the wings.

This Cold War drama was brought to a satisfactory climax for liberals by the collapse of the Soviet Union and its satellite states in Eastern Europe at the end of the 20th century. Liberals held this to be conclusive historical evidence of the inferiority of state property regimes and the superiority of societies based on private property. This left only common property standing as a possible challenger to private property, but, for reasons already noted, this threat was not seen as a serious one by the liberal tradition. Moreover a recent analysis supported by reasoning from neo-classical economics and game theory purported to demonstrate a priori that any common property arrangement would inevitably self-destruct, just as we had learned a posteriori that state property regimes would do.

"The Tragedy of the Commons" is the title of an article published by Garrett Hardin, a professor of biology, in which the main topic was population control. (7) In response to a claim that we should do nothing to stop population growth on the grounds that Adam Smith's The Wealth of Nations had demonstrated that leaving rational individuals alone to decide how best to advance their preferences would ultimately produce the best social outcomes, Hardin posed a thought experiment as a rebuttal. He hypothesized a pasture open to all, a commons as traditionally conceived. For as long as the cattle put on the pasture by herdsmen do not exceed the carrying capacity of the land, all is well, but when the maximum level is reached, rational individual decision-making leads inevitably to tragedy and disaster. Because of the importance of Hardin's argument for the topic of common property, I will provide it in his own words:

As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, "What is the utility to me of adding one more animal to my herd?" This utility has one negative and one positive component.

1) The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly +1.

2) The negative component is a function of the additional overgrazing created by one more animal. Since, however, the effects of overgrazing are shared by ah the herdsmen, the negative utility for any particular decision-making herdsman is only a fraction of -1.

Adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit--in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all. (8)

Hardin's thought experiment has had a huge influence on contemporary thinking about property, so that now "the conventional wisdom for many social scientists is that commons property generally leads to tragedy. This claim--a truism of first-year law classes--is usually introduced as one of the strongest justifications for the institution of private property." (9)

The belief that all of private property's competitors had been routed became part of the wider political movement called "neoliberalism" (i.e., a resurgence of classical liberalism) that was dominant in the 1980s and 1990s. It was now felt to be good public policy to extend private property and market exchanges into areas of life from which they were previously excluded. (10) One manifestation of this was the "privatization" of what had previously been seen as common property. This was achieved by legislation expanding intellectual property rights, such as patents and copyrights, which had the consequence of shrinking the public domain. This threat to the immaterial commons of culture and ideas has been described as a second enclosure movement, which parallels the earlier destruction of the medieval material commons and shared land use rights during the rise of liberalism and capitalism. (11) In summary, classical liberal property theory stresses individual private property and is dismissive of common property.

Whenever classical liberalism is politically ascendant it has acted to undermine common property.

III. THE RECENT DEFENCES OF COMMON PROPERTY

In this section, I survey the main recent arguments defending common property against the classical liberal dismissal. In surveying these arguments, it will soon become apparent that different defenders of common property are sometimes operating with different understandings of what common property is. In the next section, when I defend a particular conception of common property as part of my alternative to the standard liberal property taxonomy, it will become plain that some of the things described as common property by authors in this section are really collective property.

A. Arguments That Respond to the Tragedy of the Commons

1. Rose: The Tragedy Argument Is Too Strong; It Undermines the Liberal Social Contract Too

The broadest rebuttal of the claim that the tragedy of the commons proves that common property will self-destruct has been advanced by Carol Rose. (12) Classical liberals find the reasoning in the tragedy of the commons persuasive because they accept its assumptions about human nature and human motivations. However, they fail to explain how these assumptions do not cause serious problems for their own account of how the state and law were created by individuals through a social contract. (This problem arises whether the social contract is believed to be an actual event or a thought experiment.) The problem, as Rose notes, is that any such social contract would require an investment of time and energy. Constitutions are not the kinds of things that are produced quickly and easily. But why would any particular rational, self-interested utility-maximizer contribute to this difficult work? It would be more efficient and rational to let other people engage in the grind of hammering out an agreement and then accept the benefits of the social contract so arrived at. In short, it is more rational for a self-interested individual to be a free rider. But if everyone is equally self-interested and rational, they will reason in exactly the same way, and so, just as in Hardin's pasture, tragedy follows: the mutually beneficial social contract is not formed. If the social contract is not formed, then property rights either do not come into existence or are not adequately protected. Thus the liberal property theorist who relies upon the tragedy of the commons is hoisted by his own petard.

2. Ostrom: The Tragedy Argument Only Applies to Some Types of Common Property

A narrower response to the tragedy of the commons argument is to show that there are a number of different types of common property, and that Hardin's tragedy potentially applies only to one of them. It is therefore not a conclusive and comprehensive argument against common property. I will make this argument myself later in this paper once I have introduced my different types of common property, but for now we need only note the claims of some authors that Hardin's tragedy argument fails to distinguish between at least two types of situations, each of which, they say, should be categorized as a commons. In open access situations anyone is able to access the resource without limit. (Hardin's pasture was an example of such a commons.) In limited access situations a group acts cooperatively both to manage a resource for the benefit of all of its members, and also to exclude non-group members from the resource. In a limited access situation the tragedy can be averted by such coordinated group behavior, and so the tragedy of the commons is more properly confined to open access situations only.

The distinction between open access and limited access situations was emphatically made by the political economist Elinor Ostrom in her book Governing the Commons: The Evolution of Institutions for Collective Action. (13) Ostrom was an important member of a group of scholars who investigated the various forms that limited access regimes have taken at different times and in different places. (14) Although the historical evidence showed that not all attempts to jointly manage a commons were successful, many did succeed. (15) In these successful cases the group made its own rules for membership and for using the natural resource. It also monitored compliance with its rules and imposed sanctions if those rules were violated. The goal of Ostrom and her fellow scholars was to study the successful and unsuccessful limited access regimes and distil from this empirical data the ways in which "individuals jointly using a common-pool resource might be able to achieve an effective form of governing and managing their own commons." (16) Ostrom emphasized that a successful limited access regime forms a possible solution to the tragedy of the commons, but that it tended to be overlooked and undertheorized compared to the attention paid within orthodox property theory to the solutions of privatizing the commons or the state regulating the commons. She hoped that her book would "contribute to the development of an empirically supported theory of self-organizing and self-governing forms of collective action." (17)

Even if the scope of the tragedy of the commons argument is confined to open access situations, rather than limited access situations, it must be further confined to open access situations involving tangible things, rather than open access situations involving intangible things. Because the tragedy of the commons is only generated when the resources in question are finite and can be destroyed by overuse, the tragedy will not be generated when the resources are intangible things like ideas or music or stories. "To simplify a complicated analysis, this means that the threat of overuse of fields and fisheries is generally not a problem with the informational or innovational commons. Thus, one type of tragedy of the commons is avoided." (18)

3. Ziff: The Tragedy Argument Can Be Solved Just as Well by More Common Property as by More Private Property

What the parable describes is a mixed system in which common lands are combined with privately held livestock. What the tragedy suggests at first glance is that this hybrid system will not work, so the land, like the cattle, should be privatized. By the same token, the tragedy would not likely occur in a community in which the herds of cattle were also shared amongst all members. The incentive to overgraze would (ex hypothesi) then be absent. (19)

4. Heller: The Tragedy Argument Ignores the Tragedy of the Anticommons

We have already noted that in the neo-liberal period many believed that private property was the only viable property form, and so the more of it there was, the better. However, Michael Heller has pointed out that too much private property can be as harmful to economic efficiency as too little. If gaining access to a resource requires obtaining the permission of multiple holders of fragmented private property rights, there is a danger that the transaction costs involved will be too high, or that at least one of the rights holders will create a bottleneck by demanding extortionate prices for his permission. As a result the resource is either underused or not used at all. Heller's general term for the economic harm caused by too many private property rights is "the tragedy of the anticommons". (20) He has argued that this type of tragedy is particularly visible today in scientific research. (21)

5. Rose: The Tragedy Argument Ignores the Comedy of the Commons

Just as property theorists intoxicated by the private property paradigm may fail to register the economic harms caused by too much private property, so they may fail to see the economic benefits created by common property. Fixated on the tragedy of the commons, they fail to note the existence of situations where everyone is made better off by encouraging people to use an open access resource. Carol Rose gives the examples of roads and navigable waterways. Allowing them to be privately owned could create monopolies or a tragedy of the anticommons situation that would impede beneficial commerce and market transactions through high costs for obtaining permission to use the resource. Conversely, if roads and navigable waterways are made available to the public at large this will enhance beneficial commerce and market transactions. (22) Rose argues that the economic benefits explain why some forms of common property were stubbornly retained even when classical liberal ideas were at their strongest. "[S]ervice to commerce was a central factor in defining as 'public' such properties as roads and waterways. Used in commerce, some property had qualities akin to infinite 'returns to scale. 'Thus here, the commons was not tragic, but comedic, in the classical sense of a story with a happy outcome." (23) As she also put it, "this is the reverse of the 'tragedy of the commons': it is a 'comedy of the commons,' as is so felicitously expressed in the phrase, 'the more the merrier.'" (24)

B. Positive arguments in favour of common property

1. Material common property

The arguments in favour of material common property have a long history. Some predate the liberal tradition and have roots in Christianity. Some have roots in the socialist tradition that arose in reaction to the rise of liberalism and capitalism. In this paper I consider only the recent defences of common property that use the resources of the liberal tradition itself. That such defences exist is surprising because as we have seen the liberal tradition is generally unsympathetic to common property. Nevertheless, some authors have found creative ways to mine the liberal tradition for ways to advance common property.

(a) Rose: Economic Efficiency

Classical liberalism emphasizes the importance of private property and the free market because it claims that these things advance the values of economic efficiency and individual freedom. To the extent that common property can be argued to advance these liberal values as well, support for common property is also possible for a liberal. Carol Rose accepts the importance of private property and economic efficiency, but she also argues that a form of common property, rather than private property, can sometimes be the more efficient solution. "Private property is an important response to scarcity, congestion, and strife, but it is not always the only response or the best one. Some scarce resources require larger-scale management, even public management--a fact that has been recognized in the common law of property." (25) She is referring here to the way the American courts "recognized what were called 'public rights,' particularly in resources that are not easily turned into private property--historically, air, water resources, and fish and wildlife stocks--because the management of such diffuse resources is also essential in a functioning economic order of free enterprise." (26) Rose concludes that "[l]ike private rights, public rights have an economic justification: They maintain unified control over large-scale, common-pool resources." (27)

The public rights that Rose describes were available to the public at large, and so would not be one of the limited access regimes that Ostrom and McKean studied. Nor would they be open access regimes like Hardin's tragic pasture, because the state regulates access to the resource. Instead these public rights create the form of common property that I will later call "public property". If a person did attempt to overuse these common pool resources, the state could act to restrain him because his "appropriation of diffuse but congested resources was considered an act of unjust encroachment, which could be abated as a public nuisance." (28) American courts developed the public trust doctrine to block the state from moving to transfer such public property to private economic actors. (29)

So, a defence of some common property can be generated from classical liberal premises by focusing on the beneficial economic consequences in some situations of public rather than private property. Rose has identified two such situations for us, "air, water resources, and fish and wildlife stocks," and, as we saw from the earlier discussion of the comedy of the commons, roads and navigable waterways.

(b) Rose: Social Cohesion

At the end of her "The Comedy of the Commons" paper, Rose extends her defence of common property beyond purely economic considerations to include the broader social cohesion benefits produced by common property. Peaceful co-existence was another value that was supposed to be advanced by liberalism and free markets. Rose cites Albert Hirschmans The Passions and the Interests: Political Arguments for Capitalism before Its Triumph as setting out the grounds for this claim: Commerce turned us away from "the typical aristocratic (but violent) pursuits of honor and glory". (30) Commerce lessened social friction by making us all wealthier, it made manners more stable and gentle, it focused our attention on the wants of others.

Rose develops an argument that common property advances the same liberal value of peaceful co-existence. She begins by noting that contemporary American courts have been amenable to extending the older public rights cases from roads and navigable waterways to situations involving the recreational uses of beaches, even though it is hard to fit this result within traditional economic reasoning. (31) In essence, her explanation runs as follows: Roads and navigable waterways were initially categorized as forms of public, rather than private, property because this had the beneficial economic effect of strengthening and expanding commerce, which increases the wealth of society. But strengthening and expanding commerce also increases the cohesion of society, for the reasons Hirschman gave, and this is a separate reason to maintain roads and navigable waterways as public property. Some other material resources used for recreational purposes also enhance social cohesion, (32) and so on analogy with roads and navigable waterways it is justified to categorize them as subject to a public trust allowing public access. (33)

In summary, Rose has identified two arguments in defence of common property that can be generated from within the liberal tradition itself. The first and narrower argument is that common property can sometimes advance efficiency and desirable economic outcomes better than private property. The second and broader argument is that common property can advance social capital (i.e., cohesion, cooperation, trust, civility) and that this social capital is necessary for a liberal society to be healthy and thrive. (34)

(c) Rose: Hanoch Dagan and Michael Heller: The Liberal Commons

In their 2001 article, "The Liberal Commons," Hanoch Dagan and Michael Heller agree with Rose and McKean that the liberal value of economic efficiency can be advanced by common property. By combining to manage a shared resource, a group can get the benefits of pooling of resources, joint management, economies of scale, and risk spreading. They also acknowledge that there are non-economic benefits of such organization. Cooperation with others can be enjoyable for an individual even leaving aside its beneficial economic effects.

But Dagan and Heller also have concerns about common property from a liberal perspective. Historically, they say, common property has been in conflict with the crucial liberal value of freedom. Some of the limited access regimes that people like Ostrom and McKean studied make it very difficult for members to leave or to take away the full economic value of what they have contributed. (35) However, Dagan and Heller argue that legal structures can be devised that get around this problem, and that combine individual freedom and common property:
   For many resources, the most appealing ownership form proves to be
   a participatory commons regime that also allows members the freedom
   to come and go. We call this structure a "liberal commons"--an
   ideal type of ownership distinct from both private and commons
   property, but drawing elements from each. Any legal regime can
   qualify as a liberal commons when it enables a limited group of
   owners to capture the economic and social benefits from cooperative
   use of a scarce resource, while also ensuring autonomy to
   individual members who retain a secure right to exit. Constructing
   a successful liberal commons is always challenging, but it is not
   an inherently contradictory or practically unattainable goal. (36)


Much of their paper is devoted to devising legal rules that will, in a multitude of different contexts, encourage a group of people to join together in managing some resource for their shared benefit. They want to "supply anti-opportunistic devices that reassure prospective commoners that they will not be abused for cooperating.... More precisely, the constellation of background rules that should govern a liberal commons must minimize incentives to abuse the interpersonal trust and cooperation necessary for success." (37) How can background rules that encourage cooperation and trust be combined with the liberal requirement that an individual right of exit is always available ? Dagan and Heller engage in an interesting historical and comparative study to find some answers. For example, it is consistent with the right of exit to have "mechanisms [to] help insure that the exiter's decision is informed (not hasty and ignorant) and sincere (not opportunistic)". (38) A mandatory cooling-off period before exit serves this goal, while a right of first refusal may preserve the community by allowing a subset of the remaining members to buy out the party wanting to exit. (39)

(d) Gregory Alexander and Anna di Robilant: The Republican Commons

Other defenders of material common property are not as concerned about advancing the classical liberal values of economic efficiency and individual liberty. Instead they value common property because it advances the republican values of community solidarity, civic virtue, egalitarianism, and democratic participation. In pursuit of these goals they are prepared to limit the liberal freedom to enter and exit that Dagan and Heller take to be fundamental. Examples of such republican arguments in favor of material common property can be found in Gregory Alexander's "Civic Property" (40) and in Anna di Robilant's "The Virtues of Common Ownership" (41) and "Common Ownership and Equality of Autonomy". (42) The kinds of common property that they champion are limited equity housing cooperatives and pension funds structured as cooperatives (Alexander), and neighborhood managed parks, community gardens and limited equity housing cooperatives (di Robilant). Note, however, that these are mostly forms of property used for consumption, not for production. This reflects the gravitational pull of liberal thinking even on these authors who conceive themselves as moving away from liberal orthodoxy. To go further and urge common ownership of the means of production as the norm threatens to move into that part of the range of arguments for common property influenced by socialism.

(e) C.B. Macpherson: The Evolution of Liberal Democracy Requires Common Property

Canadian political theorist C.B. Macpherson is an important defender of common property who also seeks to move further away from the classical liberal position. Macpherson rejects what he takes to be the common liberal assumption that property is "identical with private property, an exclusive individual right, my right to exclude you from some use or benefit of something." (43) He accepts that "to have a property is to have a right in the sense of an enforceable claim to some use or benefit of something," (44) but insists that this definition does not rule out common property, which can be understood in the same terms as private property:
   Common property is created by the guarantee to each individual that
   he will not be excluded from the use or benefit of something;
   private property is created by the guarantee that an individual can
   exclude others from the use or benefit of something. Both kinds of
   property, being guarantees to individual persons, are individual
   rights. (45)


Macpherson's property taxonomy departs from the standard liberal one because he does not present common property as a minor and inherently defective property form that is overshadowed by the major players, private property and state property. Indeed, Macpherson argues that state property is really only another form of private property, one in which an artificial entity rather than a human individual has the right to exclude all others from the use or benefit of something. (46) For Macpherson the two major property forms are private property and common property, and there is no presumption that private property is naturally the dominant partner. To the contrary, Macpherson argued that common property was growing in importance because of environmental concerns: "Air and wacer, which hitherto had scarcely been regarded as property at all, are now being thought of as common property--a right to clean air and water is coming to be regarded as a property from which nobody should be excluded." (47) There was also a more important reason why Macpherson thought that common property as he defined it was growing in importance by the last quarter of the 20th century. He believed that the evolution of modern liberal democracy required it. (48)

Macpherson thought that while classical liberals were undisturbed by the unequal society produced by laissez-faire capitalism, seeing it as the outcome of individual free choices, modern liberals found this society incompatible "with that equal effective right of all individuals to use and develop their capacities which is the essential ethical principle of liberal democracy." (49) By the 19th century, industrialization had produced a proletariat, and the fact "that its condition of life was a denial of humanity ... made sensitive liberals, beginning with Mill and Green, seek some other way out." They were unable to find one, "[f]or they assumed the need for an unlimited exclusive individual property right, and equated it with the property right which is essential to the very nature and condition of man. So they were back with the basic contradiction." (50) Macpherson argued that the way to resolve this "central problem of liberal-democratic theory" (51) was to move beyond the liberal fixation on private property and embrace common property rights as equally necessary in a truly liberal society.
   If liberal-democratic societies are to be the guarantors of rights
   essential to the equal possibility of individual members using and
   developing their human capacities, the individual property right
   that is needed is not the exclusive right but the right not to be
   excluded from the use or benefit of those things (including
   society's productive powers) which are the achievements of the
   whole society.... Property, as the individual right not to be
   excluded from the use or benefit of the achievements of the whole
   society, may take either or both of two forms: (a) an equal right
   of access to the accumulated means of labor, i.e., the accumulated
   capital of society and its natural resources (with a consequent
   right to an income from one's work on them); or w a right to an
   income from the whole produce of the society, an income related not
   to work but to what is needed for a fully human life. (52)


So, the individual right of each citizen not to be excluded from the use or benefit of something did not just extend to parks and beaches and highways for Macpherson. He pushed his analysis further into economic resources or "society's productive powers". However, Macpherson stops short of socialism because his analysis does not require that ownership of society's productive resources become social, instead of private. His forms of common property involve the right not to be excluded from the use or benefit of society's productive resources through adequately paid employment derived from working on those resources, and also an adequate state-provided annual income if employment was not available or not possible. (What is adequate is determined by what will guarantee "the equal possibility of individual members using and developing their human capacities" and "what is needed for a fully human life.") (53) The right to a job is compatible with liberalism because it can leave ownership of society's productive resources in the hands of private owners who hire employees to work them. A modern liberal state need only set an adequate minimum wage, and manage the economy so as to promote full employment by the private sector. Perhaps the modern liberal state might also try to act as an employer of last resort if the private sector does not provide jobs for all who are able to work. (54)

2. Immaterial Common Property

The immaterial common property that receives the most attention today is the public domain, though as we shall see there are other types of immaterial common property as well. The immaterial public domain consists of those products of the mind (cultural, artistic, scientific, etc.) that are not subject to any intellectual property rights, either because such private property rights have lapsed, or were never claimed, or cannot be claimed. (55) The immaterial public domain is therefore common property in Macpherson's sense: every individual has a right not to be excluded from the use or benefit of these intellectual resources.

While defences of material common property have a long lineage, defences of immaterial common property are much more recent. They began when the immaterial public domain came under attack as a result of the expansion of private property rights during the neo-liberal period. Intellectual property such as copyrights and patents began to cover a wider range of things, and the term of copyright was greatly extended. (56) The result was that the immaterial public domain shrank, but some argued that this was disastrous because a large immaterial public domain is necessary for creativity and innovation, economic efficiency, and a democratic and free society.

(a) David Lange and Jessica Litman: The Public Domain and Creativity

David Lange's "Recognizing the Public Domain" (57) and Jessica Litmans "The Public Domain" (58) both urged that the immaterial public domain be reconceived as something important in its own right, and not simply as the detritus left over after intellectual property had performed its primary and valuable work. They were the first to warn that a large and healthy public domain is necessary for creativity and innovation. Today the work of making this argument has passed to authors such as James Boyle (59) and Lawrence Lessig. (60)

Lange and Litman rejected any account of cultural, artistic, scientific, or technical innovations originating in the mind of a single genius creator. Instead they insisted that creativity involves modifying, extending, combining, or applying material that already exists in new contexts (sometimes in very imaginative and valuable ways). As Litman put it, "the very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea." (61) Therefore the amount of creativity and innovation will be decreased if the material available to be modified, extended, combined, or applied differently is decreased. But this is what the expansion of intellectual private property rights does: it takes many products of the mind that were previously in the public domain and renders them unavailable to others, or requires that permission be obtained to use them.

(b) Boyle: The Public Domain and Economic Efficiency

The concerns of Lange and Litman can also be expressed by appealing to the value of economic efficiency. The standard economic analysis stresses the benefits of private property rights and of free market transactions to allocate these rights to those who value them most. Applied to the realm of ideas, it seems to follow that we should maximize the scope of intellectual property rights. But others have pointed out that there are costs imposed on creative activity if permissions have to be sought and paid for with respect to an increasing amount of the "raw material" necessary. The rights-holders may not be able to be found, or they may refuse to give their permission, or they may demand too much to give their permission. These transaction costs may make some creativity and innovation uneconomic, and so we arrive at Heller's "tragedy of the anticommons."
   [I]nformation products are frequently made out of fragments of
   other information products; one persons information output is
   someone else's information input. These inputs may be snippets of
   code, discoveries, prior research, images, genres of work, cultural
   references, databases of single nucleotide polymorphisms--all can
   function as raw material for future innovation. And every potential
   increase of protection over such products also raises the costs of,
   or reduces access to, the raw material to create new products....
   More property rights, even though they supposedly offer greater
   incentives, do not necessarily ensure greater intellectual
   productivity. Sometimes just the opposite may be true. (62)


These concerns give rise to the initially counterintuitive argument that free access to a large public domain of ideas is more economically efficient than vigorously privatizing the realm of ideas. The efficiency might arise because an extensive immaterial public domain operates as another of Rose's "comedy of the commons"; the more people use it, the more benefits result. (63)

(c) Yochai Benkler and Jack Balkin: The Public Domain and Democracy

A large immaterial public domain is argued to be essential for democracy in a digital age. The argument from democracy can take a narrow and a wide form. The narrow argument is aligned with the traditional republican concern to encourage widespread participation in political discussion and decision-making regarding the common good. (64) The Internet allows more people to communicate and debate about matters of political importance, but if these channels are clogged by too many private property rights; if the Internets "distributed, anonymous character, its resistance to control or filtering by public or private entities, its global nature" (65) is undermined, then this valuable democratic discussion will be impeded. The wider argument, urged by authors such as Yochai Benkler (66) and Jack Balkin, (67) ceases to understand democracy as limited to politics, and instead equates democracy with an equal ability to participate in the development of the culture that surrounds us and shapes us:
   Digital technologies highlight the cultural and participatory
   features of freedom of expression. In this essay, I offer a theory
   of freedom of speech that takes these features into account. The
   purpose of freedom of speech, I shah argue, is to promote a
   democratic culture. A democratic culture is more than
   representative institutions of democracy, and it is more than
   deliberation about public issues. Rather, a democratic culture is a
   culture in which individuals have a fair opportunity to participate
   in the forms of meaning making that constitute them as individuals.
   Democratic culture is about individual liberty as well as
   collective self-governance; it is about each individual's ability
   to participate in the production and distribution of culture. (68)


On this argument, democracy is enhanced when people are not simply passive consumers of cultural products that large corporations market to them, but are instead active participants in creating culture. Democracy therefore requires the widespread ability to appropriate, modify, subvert, re-inflect, etc. the existing culture, which is thereby turned into the raw material for a new culture. Privatizing large areas of the immaterial public domain, whether de jure by laws or de facto by technology, (69) therefore harms democracy in this wider sense.

IV. A NEW PROPERTY TAXONOMY

A. Taxonomies and blind spots

Taxonomy is important because an arrangement of organizing categories helps us to make sense of an area, to render it comprehensible and cohesive. But any organizing structure, however useful, will render us less able to see, or see as valuable, things that fall outside the approved structure. This is precisely what a number of authors say has happened in the area of property. Their claim is that the standard liberal taxonomy of property forms, and the dominance of private property within that taxonomy, has made us less able to see the huge variety of non-private property forms existing all around us and to appreciate the value of these neglected property forms. Hence these authors have moved to develop new property taxonomies that aim to be more adequate to the reality of property relationships in our society. I will describe three such attempts before advancing my own proposal, which I will argue improves our understanding of common property.

1. Heller

In "Three Faces of Private Property" (70) and "The Dynamic Analytics of Property Law", (71) Michael Heller gives a good account of the dissatisfaction many 21st century property theorists felt regarding the property theory of the preceding century:
   Consider the familiar analytic tools of property theory: for
   example, Blackstone's image of private property as "sole despotic
   dominion"; Hardin's metaphor of the "tragedy of the commons"; and,
   more generally, the division of ownership into a trilogy of
   private, commons, and state forms. Each of these concepts has a
   distinguished pedigree and certain present usefulness, but each
   also imposes a cost when it renders new forms of property
   invisible. (72)


Two forms of property rendered invisible by the old taxonomy, Heller claims, were his anticommons property and his and Dagans liberal commons. The former created a new ideal type that allows us to become more aware of a range of situations when "too much private property can be as costly as too little--a perspective that the standard trilogy makes difficult to articulate." (73) The latter combines elements of existing ideal types into a new ideal type--an amalgam of private property and common property. Heller claims that once this integrated ideal type is constructed, we are better able to see that instances of the liberal commons are all around us. "[M]arital property, trusts, condominiums, partnerships, and corporations" can now be seen to be instances of the liberal commons, rather than private property. (74)

2. Rose

In commenting on Heller's analysis in her "Left Brain, Right Brain and History in the New Law and Economics of Property", (75) Carol Rose accepts his general critique of the standard liberal property taxonomy, and also his call to produce a new property taxonomy more accurate to property reality. She responds by imagining a horizontal axis that stretches from Heller's anticommons property at one pole, to Hardin's open access common property at the other. She accepts that each of these "tragic extremes" represents a dysfunctional property arrangement, but that between them "there lies the category of usable property, where use is compatible with exclusion." (76) It is within this viable part of the horizontal axis that she places her vertical axis, which represents the range of different types of owners. At one end of this range is individual property, while at the other end is public property, which she understands as including both parks and military bases. (77)

The benefit of Rose's property taxonomy is that it highlights the large range of property forms that exist on the vertical axis between the poles of individual private property and public property. As examples of these intermediate "collective but non-public forms of property", (78) Rose gives family property, property owned by an association like a club or church, condominiums and cooperatives, Ostrom's limited-access common pool resources, and Dagan and Heller's liberal commons. Why has collective but non-public property only recently become of interest to property theorists, even though it has long been all around us? Like Heller, Rose believes that our orthodox property categories have "seriously--and unjustly--limited our property imagination." (79) That is, the distinctive nature of these property forms is rendered harder to see by the structuring effect of the standard liberal property taxonomy. She notes that American law "has been particularly hostile to most forms of collective property, particularly those in Ostroms [Common Pool Resource] range." (80)

3. McKean

As a final example, Margaret McKean has an elaborate non-standard property taxonomy that also calls attention to property forms other than the three usual suspects. Her six categories are (a) "unowned non-property (or open access resources)", (b) "public property held in trust for the public by the state, to which the general public often has access", (c) "state property that is essentially the exclusive--and therefore private!--property of government bodies, to which the public does not have access", (d) "jointly owned private property whose individual co-owners may sell their shares at will without consulting the other co-owners", (e) "common or communal property, or jointly owned private property without unilaterally tradable shares", and (f) "individually owned private property whose individual owners generally have full and complete ('fee simple' or 'freehold') ownership except as attenuated by government regulation". (81)
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Title Annotation:I. Introduction through IV. A New Property Taxonomy A. Taxonomies and Blind Spots, p. 563-590
Author:Robertson, Michael
Publication:University of British Columbia Law Review
Date:Aug 1, 2016
Words:7756
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