Private Property and Common Property

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* Essay: The Tragedy of the “Tragedy of the Commons”. By Achim Lerch.



"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.” (


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 ).