Commons and the Republican Philosophy of Property
* Book: Laín, B. (Ed.) (2023). Ni público ni privado, ¿sino común?. Usos, conceptos y comunidades en torno a los bienes comunes y la(s) propiedad(es). Bellaterra Edicions. ISBN: 978-84-19160-58-483.
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A book on the relation between commons-based property vs markets and states.
Review
(translated from the French by ChatGPT)
Bruno Carballa:
""The book defends, on one hand, a vision of the commons rooted in the fiduciary conception of property as upheld by the republican tradition, and on the other hand, property understood as a bundle of rights in the manner of Elinor Ostrom.
To this end, the first half of the book builds a theoretical foundation supported by studies of commons. Jordi Mundó presents a brief history of the philosophy of property law. He contrasts the contractual and absolute vision of property with John R. Commons' view, which holds that all property is 'conceptually public.' The State may choose to entrust property to individuals in the form of private ownership, but never in an exclusive or absolute manner. Instead, property is always a bundle of rights serving the common good. In this sense, private property is always 'fiduciary' and is defined in a political-normative way.
Bru Laín deepens this republican (re)conceptualization of property through the lens of the commons in his study of Thomas Jefferson's thought. According to Jefferson, not only private property but also public-state property and political representation follow a fiduciary logic. Representatives are 'agents of what by natural right belongs to the commons: liberty, political sovereignty, and natural resources' (p. 121). By studying the transmission of this republican vision of property to modern constitutions via legal notions of 'eminent domain' and 'public utility,' we discover how, at the origins of the United States, fiduciary property served the development of an internal market. Eminent domain 'is the power the sovereign fiduciarily confers to the government, allowing it to compel an individual (person, business, or institution) to transfer one or more of their properties under the pretext of public utility and without their consent' (p. 135). A flexible use of the term 'public utility,' whose exercise could be fiduciarily delegated to an individual, allowed the legislator to prevent individual exclusion rights from hindering internal market development. For example, by invoking public utility, a blacksmith could use another individual's forest to take part of their wood and build paths through it to increase iron production and trade. Moreover, by restricting the use of the term 'expropriation' within the doctrine of eminent domain, the legislator limited the cost of developing public infrastructure that required taking over individuals' properties. This historical observation carries a central message repeated throughout the book: while commons place limits on what can be 'commodified,' they do not necessarily oppose the market or property.""
Discussion
Commons, Markets, and States: How they relate
Bruno Carballa:
(a review of part 2 of the book)
""The question of the relationship between communities that maintain commons and the State is central to several contributions, some of which reveal contrasting visions. In his analysis of the construction of collective rights by certain indigenous communities in Latin America, Marco Aparicio Wilhelmi reaches a provocative conclusion, especially for readers attached to the idea of a Republic that is 'one and indivisible.' This author argues that 'the recognition of commons by the State implies a certain degree of de-statization, a renouncement of total and exclusive legal control, as collective self-determination gives rise to its own legal framework. Collective self-determination gives rise to its own legal rules that will engage in dialogue—and conflict—with those of the State.' (p. 80). Is such a situation desirable? Does it not risk creating de jure second-class citizens? What about its effect on the ability to guarantee commons that are transversal to multiple communities?
Mauro Castro, in contrast to the previous view, holds a position that is not 'de-statizing.' He argues that 'Community management is not the same as public management, it does not replace it, nor does it contradict it, but complements it. This is why it is difficult to introduce it into debates such as those on education, where the idea of universality is central, and challenging it creates tensions.' (p. 242)
Rosa Congost, for her part, offers a lucid historical perspective on the uses and rights of the commons in England, France, and Catalonia to warn that 'in some cases, what has been analyzed as "the emergence of the commons" could also be analyzed as "the emergence of the private." Especially if, among the different possible modalities of the commons, we admit any form of collective rights, even if it means restricting rights to only part of their neighbors.' (p. 149). The aim of this passage is primarily to show the limits of the public-private dichotomy, but it also speaks to the risks associated with a political project in which the State is sidelined or even eliminated in favor of an archipelago of commons.
In turn, Luis González Reyes proposes a confederate path to weave these islands together. He advocates for natural resource management conducted at local scales and coupled with a confederation based on an 'assembly of assemblies.' This reflection immediately leads him to another: 'in addition to commons, it would also be necessary to strengthen certain public goods that are democratically managed, especially concerning large-scale elements.' (p. 287)
González Reyes' distinction between commons and the State is particularly interesting in this regard. He supports the idea that '… if public goods are democratically managed, the only difference with the commons will be the scale, and as a result, the decision-making mechanisms will have to be more sophisticated. Otherwise, if management is by the State (understood as an organization where certain social groups dominate others), the difference will be qualitative.' (p. 287)
Are there scales too large for the commons to become practicable? Or, on the contrary, can we always tap into the creativity of commoners to develop appropriate and resilient governance mechanisms? Are very large scales (such as global commons) compatible with a granular confederative model, where each community has exclusion rights over a resource? Elinor Ostrom showed that the so-called 'tragedy of the commons' does not hold when property rights are well-defined. The projection toward larger commons requires reflection on the design of bundles of rights. Indeed, we must avoid a 'tragedy of the anti-commons' (Heller, 1998), where too many stakeholders have exclusion rights over a resource (e.g., local communities over mineral resources), leading to underuse (e.g., insufficient rare metals to build the number of wind turbines and solar panels needed to combat climate change).
González Reyes' distinction between the State and commons points to another fault line present throughout the book concerning the meaning of the 'commonalization' of the State and thus the political project that underpins it. Is it simply what Michiarelli defines as 'domaniality [demanialità] reinforced by popular control' (Michiarelli, 2014), that is, 'democratizing' the decision-making mechanisms of the State (with all that 'democratizing' can and has encompassed in history)? Or is it about replacing (at least partially) the bureaucratic management of public services, and even sovereign functions, with management carried out by self-managed communities? In the second case, it is hard to imagine how such a State would be able to collect the numerous taxes on the commercial use of commons meant to fund the subsistence basic income that Guy Standing proposes and advocates for. As Jordi Mundó expresses it, in the republican project 'a democratic conception of property, intrinsically subject to the common good, requires that citizens have unconditional access to certain resources in order to meet their needs (that is, to not be civilly or politically dependent).' (p. 116)"