Commoning and Property Law

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David Bollier and Silke Helfrich:

"As these examples suggest, property law and commoning are not generally made for each other. That’s more or less the problem that Nidiaci commoners faced: they were not able to acquire clear title to the land or secure a legal vehicle that recognized their vernacular practices. But they got lucky — they were able to work out a deal that lets them use and peer-govern the space for children and families. They secured the municipal government’s legal permission, and for the purposes of commoning, that was enough, at least in the short term. But it is certainly not a reliable legal solution over the long term. Faced with existing frameworks of property law, commoners who wish to legalize their Peer Governance may have little choice but to attempt to creatively modify the law or turn to political pressure, social organizing, or civil disobedience.1

This should not be surprising. Guardians of the dominant economic and social order naturally see property law as an instrument to advance their interests. When early capitalism enclosed the commons and overrode customary practices, writes historian E.P. Thompson, the “political economy aided and abetted the law.”2 Property law was an essential tool of dispossession. In our time, a similar dynamic is at work, as we see in copyright laws that lock research away from the scholars who produced it, patent laws that prohibit farmers from sharing seeds, and large corporations that ravage local landscapes to extract fossil fuels. As the great political scientist and philosopher C.B. Macpherson once wrote:

For when the liberal property right is written into law as an individual right to the exclusive use and disposal of parcels of the resources provided by nature and of parcels of capital created by past work on them, and when it is combined with the liberal system of market incentives and the rights of free contract, it leads to and supports a concentration of ownership and a system of power relations […] which negates the ethical goal of free and independent individual development.”3 (emphasis in original)

In short, the combination of property law with capitalist markets and state enforcement of contracts has created a powerful narrative of freedom — but a freedom that is mostly reserved for owners. If we really want to be free, and we wish everyone to enjoy that possibility, we need to rethink property.

This is a very large and complicated topic, of course. It is not easy to imagine how we might subordinate property rights to the needs of our society and ecosystems, reversing the power of tradeable property to dictate terms for nearly everything. Chapters Seven and Eight are devoted to this ambitious challenge. We start by rethinking some fundamental dimensions of property that have long been neglected or ignored, but which have great importance to commoning. Then, in Chapter Eight, we explore the possibilities and ways of relationalizing property. The point is not to abandon property law as such, but to situate the things we use (sometimes known to the law as “property”) in a rich, diverse, and meaning-making web of relationships — social, economic, ecological, temporal.4 The legal concepts of possession, custom, and inalienability are important in helping us rethink the meaning of property.

In rethinking property, it is vital that we understand a basic idea —
property is relational and not just an object. This insight opens the door to a richer, more realistic discussion of how property actually affects us and the world. We also need to recognize that familiar forms of collective property — trusts, coops, partnerships, nonprofits — can achieve a great deal, but they ultimately do not overcome the structural biases embedded in property itself: the right to exclude, the over-reliance on markets, the habit of equating value with price, and the power of owners to dictate how nature and people will be treated.5

In this chapter, we will also clarify why the notion of possession is so important to the commons. In an existential sense, we cannot not possess. But something interesting happens as we possess. As firsthand users of water, land, wood, soil, landscapes, seeds, and much more, we develop knowledge and affection, a sense of responsibility, and situated knowledge about the resource — enough to convert it into care-wealth. Such attitudes are less likely to develop among owners primarily focused on the exchange value of their property.

By focusing on possession, we can begin to think about ways of having that may not be officially sanctioned by legality (as at Nidiaci Garden), but which are entirely functional and effective. Moreover, we can begin to think about how state law might recognize or facilitate these other modes of possessing, collaborating, sharing, and commoning. This mode of having and using is what we call Relationalized Property — a topic we will develop in Chapter Eight.

Finally, we explore why inalienability is critical to any vision of stewardship through commoning. Inalienability is the idea that it is ethically offensive to appropriate and sell certain cherished things. As creatures of the market, we moderns generally dismiss this idea as archaic. But the legal history of inalienability, especially during the Roman Empire, shows how a prohibition on alienation enables all sorts of vital relationships to flourish precisely because limits are set on market activity.

Me, My Freedom, and My Property It’s no exaggeration to say that our ideas about property express a vision of personhood — one that radiates into the deepest corners of society, affecting our social identities and relationships, commercial dealings, institutional behavior, and treatment of nature. “The premise underlying the personhood perspective,” writes property law scholar Margaret Jane Radin, “is that to achieve proper self-development — to be a person — an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights.”6 But property is not just a reflection of our sense of what a human being is; it is a legal enactment of our social relations. A vast market apparatus ratifies and reinforces a culture based on property norms every day. Thus the juridical way that we think about property largely determines the actual social relations that we can imagine and develop. Of course, this happens in other realms of life, too: how we think about “the economy” also determines how we relate to each other.

For the past 250 years, modern, liberal notions of property have been the defining feature of our general archetype of personhood. John Locke, Thomas Hobbes, and the other early theorists of the modern state and liberal property rights started with the assumption that the individual matters most, and that everyone is “proprietor of his person and capacities.”7 Most of Western culture has embraced the idea that freedom is “freedom from dependence on the wills of others, … and freedom is a function of possession. Society becomes a lot of free and equal individuals related to each other as proprietors of their own capacities and of what they have acquired by their exercise. Society consists of exchange between proprietors.”8

This modern catechism of freedom anchors the cherished cultural ideal of individual autonomy and individual property. The human being is conceived as an isolated-I with absolute freedom, expressed through ownership. It is a world in which we stand as selves ultimately disconnected from everything else — community, tradition, ethnicity, religion, nature. In such a world, property ownership constitutes an institutional bulwark for the freedom of the utterly autonomous individual. These three ideas — the individual, property rights, and freedom — have become the pillars of free-market ideology and Western civilization. The linkage among the three defines a world in which individual property rights are seen as determining people’s “actual freedom and actual prospect of realizing their full potentialities.”9 Once this linkage was established as the dominant political theory — modern liberalism — it was read back into the nature of the individual as if it had always been there and was not culturally created. It was presented as a self-evident, universal fact.

By sanctifying this vision of humanity, modern property law functions as a massive system of social engineering. It elevates instrumental, commercial uses of nature. It encourages the treatment of human beings as commodified labor and the internalization of such norms as people learn to sell themselves on the labor market. It creates artificial scarcities through copyright and patent law to help create markets that wouldn’t otherwise exist. Property law as it is today systemically privileges the individual versus the collective, self-serving control over relationships, and exchange value over intrinsic or use value. One might say that the very premises of property law dictate these outcomes. This makes it difficult to entertain legal schemes that might reflect a broader array of human values, practices, and social organization." (