Commons as Property
The Origins of Commons as Property
"In the past, two main explanations have been given in the literature for the origins of commons. Elsewhere, I have distinguished those as the evolutionary explanation and the causal explanation.19 The evolutionary explanation considers the existence of commons as being part of a long evolution towards private property dating from Germanic times, when only movable items could become an individual’s property and all non-movables belonged to the family, clan, or tribe.
Common property could be seen, as Engels, Marx, De Laveleye and many other nineteenthcentury authors claimed, as a primitive form of property. Gradually, that common property would more or less naturally evolve into private property, a change which Marx and Engels clearly did not favour, but others such as De Laveleye stressed was a quite natural evolution:
- When jurists want to account for the origin of such a right, they fly to what they call the State of Nature, and from it derive directly absolute, individual ownership – or quiritary dominium. They thus ignore the law of gradual development, which is found throughout history, and contradict facts now well known and well established. It is only after a series of progressive evolutions and at a comparatively recent period that individual ownership, as applied to land, is constituted.
In the opinion of De Laveleye all property would evolve into private property in the long run.
Not only would that way of reasoning fail to explain the origins of commons in non-Germanic areas,22 it conflicts too with the known establishment of new common rights on large plots of lands during the Middle Ages and the foundation of many more commons from then on, when property systems had already evolved further in other circumstances.
For example, according to Slicher van Bath,24 to mention just one eminent agricultural historian, the formation of marken and meenten (both forms of wasteland commons) went back no further than the twelfth or thirteenth centuries, although defenders of the ‘‘Germanic theory’’, such as Heringa, have contested that.25 Heringa saw a long continuous history in which the only change was that the rules for the use of the common were written down.
Although the origins of commons have not been thoroughly studied so far, it is clear that large numbers of commons appeared during the late Middle Ages as identifiable institutions in large parts of Europe, and that they did not necessarily stem from previously established collectivities of users. During the twelfth and thirteenth centuries especially the first ‘‘corporate’’ commons appeared on the scene in the Low Countries, with a clearly outlined institutional basis.
I do not deny the existence of cooperation among villagers in the period before that, but what we witness in the twelfth and thirteenth centuries is the formation of collectives or alliances based on some mutual agreement which was not primarily kinship, but existed between lords and villagers and among villagers themselves. They dealt with the use of resources, and their rules were written down, confirmed, reviewed, and – most importantly – enforced by the members of the collective.
In many cases, agreements should be read as settlements of conflicts that arose between the lords and the inhabitants of a village and which should be seen in the light of the great European reclamations that took place during the tenth to the twelfth centuries.28 As will become clear in a later section of this article, such agreements can be considered to be forms of risk avoidance and as a way to benefit from economies of scale in the management of natural resources that are necessary or even vital to the agricultural system but which cannot be bought on the open market nor otherwise commercialized. The background is population growth, and the related changes to land use and its intensification.29 Commons were a way of keeping the agricultural system in balance while keeping control of the cost, which was at least lower than would be incurred by privatization. That becomes clear on the basis of the many studies that suggest the prudence of the commoners." (https://www.ris.uu.nl/ws/files/20096187/_PUB_SilentRevolution_IRSH_53_Suppl.pdf)
Should commons be non-property ?
There is a strong tendency in contemporary thought, to be anti-property and to define Commons as being non-property.
For example, in this otherwise excellent keynote of Yochai Benkler at the Ouishare conference of 2016 (), listen to the firt ten minutes, it would seem he counterposes the commons against the idea of redistributing property, seeing property as inevitably tied to its concentration and hence to oligarchy. This argument is also made by Negri/Hardt in the Empire/Commonwealth trilogy and more recently, in the book, Commun by Dardot and Laval.
I do not agree with this tendency and would like to explain why.
If we look at the enclosures we see that people's with no property or common property, were considered to have no property (terra nullius) and where therefore appropriated, as were the lands of the indigenous people colonized by the West. This is also often done with immaterial resources such as knowledge and culture, which are appropriated and then copyrighted or patented (the biopiracy of traditional Indian seeds for example). We also have the very strong tradition of totalitarian state-socialism, where so-called collective public property created absolute power in the state and its managerial class. Although property was the instrument of monopolisation by private or state forces, non-property was clearly not a protection against this.
On the other hand, if we look at the successes of the contemporary commons movement, in free culture, in free software, in open design; and the relative success and staying power of cooperative ventures, they are all done by 'hacking' property or distributing property. The GPL license for free software is a form of common property, protected by law; Creative Commons similarly protect the sharing of cultural goods by law. In the case of cooperatives it is done by distributing shares and guaranteeing one share, one vote.
What this tell us is that actual property-based and law-based protections are absolutely vital for the commons, and hence, the commons should not be counter-posed in a simple way to private or state property as non-property, but rather as a new form of property.
There is another very important issue, which concerns the balance between individual and collective power. It is very common for collective property to be hijacked by elites within the community. In such a context, if there is no protection of individual property, it is very easy for power-over, in the name of the community but in fact by an elite within the community, to develop power-over instead of power-with.
This is why it is so vital to develop redistributed individual property. In free software and open source, the individual can contribute or not, can fork or not, but his access to the resource is always guaranteed, because it is a 'immaterial' resource. But for material resources, this is not so easy to achieve, since the resources are rival, it is therefore absolutely vital that individuals retain their sovereignty over the property that they freely allocate to the common projects, but can leave and recuperate as wel. This requires strong property protections.
For all these reasons, seeing the commons as necessarily 'against' property, and seeing the commons as against the 'redistribution of property', is misguided and dangerous. I would argue that they are actually the condition for each other. A truly free and non-oppressive form of commons can only exist, if individuals retain the freedom to withdraw their support and hence, withdraw their property from the common pool, in order to be free to create another which corresponds better to their wishes. We need to be able to fork material commons, just as we achieved forking in immaterial commons.
Hence, the commons is also property, while at the same time being some form of non-property. In the same way, the collective territorial common good in a commons economy, requires a state, that is at the same time a non-state because it is no longer separate from society. Commons property belongs to a collective or to all, and in this sense may be non-property, but it is at the same time 'property' because the constituent parts can be withdrawn.