Common Property

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Definition

Common Property should be distinguished from both private, public state property. Common Property is property that is owned by a group of individuals. Access, use, and exclusion are controlled by the joint owners. True commons can break down, but, unlike open-access property, common property owners have greater ability to manage conflicts through shared benefits and enforcement. [1]


Discussion

See the related concept of Collaborative Goods

Christian Siefkes proposes to reserve the term for the "permanent part of the commons — nobody has the right to take them out" [[2]]. He distinguishes it from Granted Property


Citation

Dan Sullivan:

"The distinction between common property and state property is lost on royal libertarians. Common property is that to which we all have inalienable rights. State property is that which the state actually owns, and can dispose of as it sees fit. For example, a public right of way is literally a right of way. Under principles of common law, nobody, not even the king, could close a traveled road and make it private property. A state maintenance truck, on the other hand, is state property, which can be sold if it no longer suits state purposes." (http://geolib.pair.com/essays/sullivan.dan/royallib.html)


Governance

Rules for Use of Common Property

Achim Lerch:

"The main difference between resources for which collective property rights were allocated and open access regimes is that the former is regulated (in respect of both the group of entitled users and the rights of use by the group members); the latter, by contrast, is unregulated. If we now look at the institutional rules that counter overuse (the tragedy) within an effective common property regime, we see that the common property regime shares a great deal more similarity to private property regimes than to the unregulated condition of open access.


Elinor Ostrom has shown in various publications that the “dilemma of common property” can be successfully solved through institutional arrangements and cites various rules in light of their similarities.33

From a similar perspective, Stevenson defines common property as a form of resource ownership with the following characteristics:

1. The resource unit has bounds that are well defined by physical, biological, and social parameters.

2. There is a well-delineated group of users, who are distinct from persons excluded from resource use.

3. Multiple included users participate in resource extraction.

4. Explicit or implicit well-understood rules exist among users regarding their rights and their duties to one another about resource extraction.

5. Users share joint, nonexclusive entitlement to the in situ or fugitive resource prior to its capture or use.

6. Users compete for the resource and thereby impose negative externalities on one another.

7. A well-delineated group of rights holders exists, which may or may not coincide with the group of users.34


These (and other similar) rules are ultimately interpreted within a collective property regime as an allocation of individual rights of disposition by the community. The difference between this sort of common property regulated by the community itself and private property, which ultimately also consists of a bundle of variously defined or limited rights of disposition thus seems less clear than the difference between open access and common property: the criteria to distinguish between private and common property is the exclusivity and the range of the respective rights of disposition, in other words, the difference is slight. The difference between open access and defined property rights (private or common property), by contrast, is the difference between an unregulated and a regulated condition. The difference is fundamental. The difference between open access and common property with corresponding rules, in particular with respect to limited open access, is also analogous to categories of classic economics. These distinguish between purely public goods and so-called club goods, where the distinction lies in the rivalry surrounding consumption and the exclusivity of access to use. Accordingly, public goods are such that no one may be excluded from their use and there is no rivalry surrounding their consumption. Several subjects can use a good in equal measure without “taking something away” from the other. The classic example is the light of a lighthouse. Club goods, by contrast, also do not feature any rivalry but are accessible only to club members in respect to their use – the resources of a sports club, for example. The major difference between club goods and purely public goods is thus the availability or unavailability created by a process of exclusion.

What is important about this analogy is – particularly also with a view to the issues discussed in this collection – that in the ideal case of a good, for which there is no rivalry to consume, the condition of open access is not harmful. This is often mentioned in connection with the commons of the mind. Yet it is up to political economists of the commons of the mind to describe this phenomenon.35 (http://www.boell.org/downloads/Lerch_Tragedy.pdf)

References in the original only [3]


Discussion

Peter Barnes on Common Property and Trusts

From Peter Barnes at http://onthecommons.org/node/995

"It seems that when it comes to "takings" of valuable property, governments in Europe as well as the United States have a double standard. If the property is privately owned, it can't be taken without fair compensation. In the U.S., this prohibition is embedded in the Constitution ("nor shall private property be taken for public use, without just compensation," says the Fifth Amendment).

By contrast, if the valuable asset is commonly owned, no such prohibition exists. A government can take from the commons and give to private owners without the latter paying a dime. There doesn't even have to be a "public use" to justify the taking.

Why this double standard? Why does private property receive royal treatment, while Common Property gets the bum's rush?

Part of the answer is that private property is more clearly "possessed" than common property. It comes wrapped in deeds and titles that give it legitimacy and legal standing. Common property, by contrast, is generally ill-defined. There's no piece of paper that says who the atmosphere, or the broadcast spectrum, belong to. So when Bob Dole, the former Republican Senator, said in 1995 that the broadcast spectrum "belongs to every American equally," he had common sense, but no deed or title, to back him up. Hence Congress could blithely hand out free broadcast licenses to private media corporations, and no one could say it acted unconstitutionally.

It seems to me this is an oversight that can and should be corrected. A taking of valuable common property needs to be compensated just as much as a taking of private property. That compensation could go to government, or to a trust representing all beneficial owners. This would put an end to further windfalls for the rich, at the expense of everyone else. It would assure that common resources are used for the common good.

Perhaps, to make things crystal clear, we ought to create a new class of property -- common property -- that lies somewhere between private property and state property. Such property could be managed by trusts rather than corporations. Such trusts would be separate from government, and government couldn't take and redistribute their property without compensation, any more than it could take Exxon's. The trusts' beneficiaries would be future generations and all living citizens more or less equally. Trustees would be legally bound to serve those beneficiaries, just as corporate directors are legally bound to serve stockholders. Each citizen's beneficial share would be a non-transferable birthright.

One can imagine such trusts protecting common gifts such as the atmosphere, the broadcast spectrum and terrestrial ecosystems, paying equal dividends to living citizens, and supporting renewable energy, public transportation, non-commercial broadcasting and other common goods.

In short, by giving common property the same respect we give private property, we could have a market economy that takes better care of the planet and of citizens who lack private wealth. This would be a better version of capitalism than the one we have now." (http://onthecommons.org/node/995)


Josh Farley on using common property rights for non-rival goods

Josh Farley at http://onthecommons.org/node/1179


“Elinor Ostrom , Daniel Bromley , Fikret Berkes and others have pointed out that many societies have developed institutions based on common property rights that avoid the tragedy affecting rival, non-excludable resources, showing empirically that common ownership can be an effective solution. Is it possible that common property is the only efficient solution to the allocation of non-rival resources? Many existing environmental markets actually operate on this principle already. For example, it is the polity that determines allowable emission levels for SO2 and CO2 and the total allowable catch in fisheries using individually tradable quotas, not the market. The polity could not set supply if the resource were not common property. Shared production and shared ownership of information would also be more efficient than private ownership. Publicly funded research with results freely available to all would increase the economic surplus from information, and there is no plausible reason that salaried scientists would work harder for the private sector than the public sector or produce more socially valuable information.

In sum, private ownership of non-rival resources or resources that generate non-rival benefits seems to generate a tragedy of the non-commons, and the relative importance of non-rival resources seems to be increasing. Paradoxically, social ownership may be necessary for creating markets, as seems to be the case for waste absorption capacity. Perhaps the appropriateness of socialism and capitalism or of common property and private property should not be questions of ideology, but rather objectively determined by the physical nature of a resource as non-rival or rival. This certainly appears to be a worthwhile topic for ecological economists to investigate." (http://onthecommons.org/node/1179)


On the Difference between Common Pool Resources and Common Property Regimes

George Caffentzis in a presentation on the Neo-Hardinians scholars of the Commons:

"Scholars in the neo-Hardinian tendency have carried on many important empirical studies of common property systems across the planet as well as have made a number of important distinctions in the study of common property. This is not the place to assess their empirical studies (cf. the extensive bibliography on Private and Common Property Rights in (Ostrom 2000: 352-379) and the Digital Library on the Commons mentioned above), but their most important theoretical distinctions are worth reviewing, since some can be useful to the anti-capitalist commonist movement.

Of course, the primary one is between common property and open access regimes, since the confusion between them is the basis of Hardin's deduction of the tragedy of the common. Common property regimes are "where the members of a clearly demarcated group have a legal right to exclude nonmembers of that group from using a resource. Open access regimes (res nullius)-including the classic cases of the open seas and the atmosphere-have long been considered in legal doctrine as involving no limits on who is authorized to use a resource" (Ostrom 2000: 335-336). On the basis of this distinction, common property and open access regimes are mutually exclusive and anyone who had as their political ideal the creation of an open access regime would not be a supporter of the commons.

The second important distinction is between a common-pool resource (which is a thing or stuff) and a common property regime (which is a set of social relations). A common-pool resource is such that (a) "it is costly to exclude individuals from using the good either through physical barriers or legal instruments and (b) the benefits consumed by one individual subtract from the benefits available to others" (Ostrom 2000: 337). Because of its two defining characteristics, a common-pool resource is subject to problems of congestion, overuse and potential destruction. Access to, withdrawal from, management and ownership of such a resource can be in the form of a common property regime, but it need not be. "Examples exist of both successful and unsuccessful efforts to govern and manage common-pool resources by governments, communal groups, cooperatives, voluntary associations, and private individuals or firms" (Ostrom 2000: 338). Much of the work of the neo-Hardinians has been to study what attributes of common-pool resources that "are conducive to the use of communal proprietorship or ownership" and what attributes of common-pool resources that "are conducive to individual rights to withdrawal, management, exclusion and alienation" (Ostrom 2000: 332).

The neo-Hardinians, however, seem to be less interested in the fact that not all common property regimes involve common-pool resources. On the contrary, when we examine the history of common property regimes, we must conclude that many have been based on non-common-pool resources. For example, money income, personal belongings, literary texts, and even children have been communalized. Thus the 15th century Taborites' first act of forming their community was to dump all their personal belongings in large open chests and begin their communal relations on an even footing (Federici 2004: 54). On the basis of the history of common property regimes it is difficult to decide what types of goods are "conducive" to private property and what kinds of goods are "conducive" to common property.

The third important distinction is between common-pool resources (e.g., a fishery, a river) and public goods (e.g., knowledge of a physical law, living in a just and peaceful society). They share one characteristic, i.e., it is difficult to exclude people living within the scope of these resources or goods from their enjoyment. But they also differ in another characteristic, for a common-pool resource like a fishery is reduced when something of value like a particular fish is withdrawn from it while a public good like knowledge of the Second Law of Thermodynamics is not diminished when still another person uses it to construct a new engine." (http://www.globaljusticecenter.org/papers/caffentzis.htm)


Christian Siefkes on sources for common property

"How things become common property:

  • Cost recovery: sharers may ask for voluntary suggested contributions, as long as there are still uncovered costs (money that has been spent to buy or maintain the goods).
  • Donations: people donate goods or money to buy goods to the commons.
  • Collections: projects collect money in order to buy common property (distributed donations).

Common property (goods that are partially and totally community-owned) are still maintained by the initial sharers, but they can’t be sold/re-privatized—if the initial sharers choose not to maintain them any more, they “float” to somebody else within the Network.

Common property is always transitive: goods produced using them are common property, too.

Costs only arise when something must be bought since it isn’t available in the Network. Ideally, costs should become lower over time, as more and more goods and tools are produced and freely distributed in the Commons Network." (http://www.keimform.de/2008/09/08/hiddinghausen-talks-2-commons-network/)


(Western) Ideological Origins of Private/Common Property Conceptions

"Achim Lerch: Private Property and Common Property

The prevailing liberal theory of property today – at least in the “western world ”– essentially traces back to John Locke, in particular, to the chapter “Of Property” in the second of his Two Treatises of Government appearing in 1689.4 The Lockean argumentation provides a justification for private property rights, which exist as natural rights, also independent of the consent of society. In contrast, for example, to a utilitarian view, where property rights are seen only as a means to an end (the end generally being utility maximization), property rights take on genuine importance in liberal social theory – among things, also as individual rights to defend against a superior (state) collective. This is based on the central notion that each individual has a property in his own person, that is, an unlimited right of disposition over himself, his own body, his own faculties, and his own labor. Gerald A. Cohen, Professor of Political Philosophy at Oxford, coined the phrase self-ownership to describe this concept.

For Locke, the justification for private property rights directly follows from this premise of selfownership, in connection with the need to use natural resources for survival. Everyone has a right to the fruits of his labor, to everything that he takes from nature and thus makes useable without requiring “any express compact of all the commoners.” (Locke 1986: 115[25]).

Precisely on this point, Locke‟s position is diametrically opposed to Immanuel Kant‟s view. Kant said, Locke‟s justification for property in fact was not a real justification for property but merely a description of “what is universally valid and absolutely necessary.”6 Locke mainly confused empirical possession with de jure or socially recognized property. According to Kant, physical appropriation was necessary but not sufficient to justify property. Empirical possession alone could not justify a property right. Rather, the nature of property was defined precisely by the fact that it continues to exist even if there is no physical possession. Locke thus overlooked that a social contract must logically precede property.7

Kant further argued that Locke's self-ownership theory was insufficient to legitimize private property rights to resources to the extent that appropriation is always linked to the use of external resources. It is not one‟s own labor alone but its mixing with resources that do not belong to the individual (e.g. land) that justifies private property. This too was one of Kant‟s objections to Locke: Kant also did assume that the individual had “undisputable property” of his own creations, but the individual was, at best, productive in his dreams. “The external objects of general will,” on the other hand, did not originate from labor or the will of the producer but belonged to all in common and could merely be modified through labor. But if resources are, from the start, the common property of all people, the self-ownership theory cannot alone justify any private ownership of resources. In principle, Locke sees it the same way. He assumes – just as Kant does – that the earth and its resources originally belong to all people in common.8 To this extent, individual appropriation is, in principle, contingent on the consent of the co-owners.

But he develops a cost argument because – as economic theorists would say today – the transaction costs involved in obtaining this consent seem too high to him. There was thus a risk, in Locke's view, that people would starve despite the abundance of natural resources available to them. (Locke 1986: 117[28]).

To resolve this dilemma, Locke not only posits the natural right to appropriate resources but also emphasizes a natural limitation on property. First, in each case of appropriation, enough must remain for others and second, each individual may appropriate only as much as he himself consumes. According to Locke, no one could deprive others of something by appropriating too much. These conditions are referred to in the literature as “Lockean condition(s).” According to Locke, compliance with these conditions in their natural state was ensured in that the mass of property was determined by nature. No one could either subdue or appropriate all for himself. No one could consume more of the natural resources than a small portion, and thus no property could be acquired at the expense of another.

These natural limits were, in Locke‟s view, definitively overtaken by the invention of currency and the tacit human agreement to assign such a large value to it.9 Thus, he himself, in principle, suggested that his justification for the natural property right was only to a limited degree applicable to most distribution issues in a monetized economy where capital is accumulated in proportion to labor. Locke views the uneven distribution of property in such a society as the result of a “tacit and voluntary consent” of men.10 Thus, both Kant and Locke, in principle, assume that property rights always represent a social construct and that private property rights generally require the consent of the other members of society.

Consequently, private property rights, in principle, represent a special form of common property. Until today, there seems to be certainty about what constitutes “private property,” but enormous confusion continues to prevail with respect to the term “common property” and is encouraged by the frequently imprecise use of the term. Not least, the famous metaphor of the “tragedy of the commons” contributes to this confusion over the term. It therefore seems necessary to thoroughly analyze this “tragedy.” (http://www.boell.org/downloads/Lerch_Tragedy.pdf)


References:

1 The author is an economist currently writing his postdoctorate work on environmental economics. He lectures at the universities of Kassel and Rostock, Germany.

2 “The first man, who, after enclosing a piece of ground, took it into his head to say, „This is mine,‟ and found people simple enough to believe him was the true founder of civil society.” ROUSSEAU, J.J.: A Discourse upon the Origin and the Foundation of the Inequality Among Mankind. First publication 1755.

3 YOUNG, Arthur: Travels, vol. 1, 1787; quoted here according to BRUBAKER, E.: Property Rights in the Defence of Nature. London Toronto (Earthscan). 1998. p. 214.

4 The following quotes refer to the page numbering in the German translation LOCKE, John: Bürgerliche Gesellschaft und Staatsgewalt. Sozialphilosophische Schriften. Berlin. (das europäische Buch publishers). 1986. The paragraph numbers are additionally cited.

5 COHEN, G.A.: Self-Ownership, World-Ownership and Equality. In: LACASH, F. (Ed.): Justice and Equality Here and Now. Ithaca (Cornell University Press). 1986. pp. 108-135. 6 C.f. BROMLEY, D.W.: Environment and Economy: Property Rights and Public Policy. Oxford (Basil Blackwell). 1991 and WILLIAMS, H.: Kant's Concept of Property. Philosophical Quarterly 27 1977. p. 32-40.

7 Kant‟s view of property as outlined here relates to his thoughts in the Metaphysischen Anfangsgründen der Rechtslehre (Groundwork of the Metaphysics of Morals) of 1797. In the 1760s, Kant still held a view that had much more in common with Locke‟s position. In the Beobachtungen über das Gefühl des Schönen und Erhabenen (Observations on the Feeling of the Beautiful and Sublime) of 1764, he developed a theory according to which the conscious will of man justified private property in connection with labor, virtually an amended version of Lockean thought. Kant himself had never published these early thoughts on property law and later distanced himself from them. (cf. BRANDT, R.: Eigentumstheorien von Grotius bis Kant. Stuttgart Bad Cannstatt (Frommann-Holzboog). 1974. p. 167 et seqq.)

8 “It is very clear, that God, as King David says (. . .) „has given the earth to the children of men,‟ given it to mankind in common.” Locke 1986: 115[25]. Kant, for example, speaks of an “innate right of common possession of the surface of the earth” and of the “original community of the soil and of the things upon it” as “objective reality.”(1986: 359 ).


Common Property vs. Public Property

Aras Ozgun:

"‘‘Public’’ has been one of those theoretical devices that defined socialist alternative visions in their opposition to capitalism across all theoretical fields, but which was actually a product of eighteenth-century liberal governmentality. ‘‘Public’’ becomes the master signifier of socialism in its opposition to ‘‘private property,’’ but it still carries a reference to ‘‘ownership’’ relations. ‘‘Public property’’ is everyone’s ‘‘capital,’’ but it is still ‘‘capital’’ in the sense that it is a part of the restricted economy and its ‘‘use,’’ or ‘‘productivity,’’ is still restricted with the terms imposed by ‘‘public ownership’’ and limits of the definition of ‘‘public.’’ For example, you may have to be a ‘‘citizen,’’ a ‘‘taxpayer,’’ or even a taxpaying citizen dwelling in a specific neighborhood to use the ‘‘public education’’ provided by the state or city. ‘‘Public’’ never denotes ‘‘everybody’’; it always signifies a limit set by a certain social, linguistic, or jurisprudential criterion, refers exclusively to a specific population. As such, it not only always excludes ‘‘somebody’’ and creates outsiders, but also abstracts a ‘‘majority will’’ out of a shared social situation. In this respect, the term ‘‘public’’ does not undo the specific set of social relations around ‘‘property’’ (or dispose the restrictions stemming from ownership) but delegates these relations to an abstract collective body.

Hardt’s and Roggero’s rejection of ‘‘public property’’ for the sake of a ‘‘communist project’’ brings the displacement of the term ‘‘public’’ from its hegemonic status of expressing an abstract collective will/body/thing. Therefore, the rejection of ‘‘public property’’ within the critique of political economy invites a novel political logic, which can now be conceived without having reference to the political terminology of liberal democracy. ‘‘Common’’ is not only ‘‘not property,’’ but it is also ‘‘not public’’; it signifies a collective social form that is different from the ‘‘public’’*/it doesn’t ‘‘substitute’’ the ‘‘public’’ but transcends it. Such a theoretical intervention allows us to speak a political language that is not structured with the binary opposition imposed by classical liberal and socialist discourses, and thus makes it possible for us to imagine a different form of ‘‘collectivity.’’ (http://dx.doi.org/10.1080/08935696.2010.490372)

More Information

  1. Property; Collaborative Goods; Peer Property
  2. Trusts

Bibliography:

  1. Common Rights vs. Collective Rights: contrasting common and collective property.
  2. Ostrom, Elinor. 2000. "Private and Common Property Rights", in Encyclopedia of Law and Economics, Vol. II: Civil Law and Economics, , pages 332-379. Ghent, Belgium: University of Ghent.
  3. AGUILERA-KLINK, F.: Some notes on the misuse of classic writings in economics on the subject of common property. Ecological Economics 9: 1994. pp. 221-228
  4. Bromley, D W (1991): “Testing for Common versus Private Property: Comment”, Journal of Environmental Economics and Management, 21(1): 92-96.
    1. (1992): “The Commons, Property, and Common-Property Regimes”, Making the Commons Work, 3-16.