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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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.""

(https://www.encommuns.net/articles/2024-09-04-ni-publico-ni-privado-sino-comun-propriete-communs-et-republique/)