Property

Typology

Summarized by Shiri Pasternak [1]:

"Open Access: “Everybody’s access is nobody’s property” (Bromley 1989).

Limited-User Open Access: Regulated open access – state restrictions limiting users and total yield

State Rights: “It appears that state rights work best when non-market benefits predominate and are dispersed across a population, mechanisms exist for people to express their preferences to the state, no prior claims by individuals or communities exist over the resources, and when the state has the means to enforce rights and the costs of exclusion are high” (81).

e.g. the felling of Alberta’s boreal forest – cost the gov’t a fortune in subsidies

Community rights: “These rights often prohibit persons outside the community from using the resources, and set rules for how the resources should be exploited by members of the community” (82). A multiplicity of forms of community rights are sited, including Sabel grazing, alpine areas of Switzerland, Peru, Ecuador, Bolivia; fisheries; irrigation projects in Asia, Middle East, Africa; forests and woodlands of Japan. Community rights can work well when introduced to manage resources, but where they may be inadequate is when environmental problems are too large and communities too disparate to manage externalities, such as in urban populations.

Private property: “The overriding advantage of private rights is the potential to transfer or alienate a share of resources. This allows resource users, who can generate a higher return from the resource, to acquire a greater share of its yield and thus increase aggregate benefits. The appropriateness of the ‘private property rights solution’, however, depends on the cost of exclusion relative to the benefits of private rights, the institutional setting and equity considerations” (86). (http://www.propertytaskforce.org/node/11)

(Source: Devlin, Rose Ann and R. Quentin Grafton. Environmental Rights and Environmental Wrongs: Property Rights for the Common Good. Cheltenham, UK; Northampton, MA, USA: Edward Elgar, 1998).

Discussion

Theories of Property

Summarized by Shiri Pasternak [2]:

"Stephen Munzer advances some theories on property that can be quantified along several compatible spectrums. The first spectrum is the stretch between commons to anticommons – in between lies state and private property. This correlates with two theories of property more generally – the bundle-of-rights analysis and the rule-governed entitlements analysis.

The bundle-of-rights analysis further breaks down into 8 normative modalities of rights and their correlatives – claim-right, liberty-right, power, and immunity, with their respective correlatives of duty, no-right, liability, and disability [these modalities were developed by Hohfeld [1919] 1978). Then Honoré (1961) “sought to specify the standard ‘incidents’ of ownership common to Western legal systems” (149) by “taking the fundamental legal conceptions and making them more specific by indicating certain actions or events – for instance, to use, to sell, to exclude – in relation to other persons with respect to things” (149). Munzer theorizes the way that the bundle-of-rights also further clarifies our understanding of property: “If someone has all or almost all of the incidents with respect to a given thing, one can speak of ownership. If someone has rather less than the full package of incidents – as with easements or bailments – there is limited property” (149).

It is possible to identify different sorts of property depending on the identity of the right-holder. Thus, an individual person or a corporation has private property, a tribe has communal property, and a government has public or state property” (149).

Different sorts of property are defined by different forms of social organization and relations to the land: each social agent has a different bundle-of-rights. So it’s not the property itself, or the “resource” that dictates the form of property rights, but rather the type of owner.

The rule-governed entitlements analysis is attributed first to Calabresi and Melamed (1972). Munzer writes that “the enduring value of this analysis rests on the light it throws on the interconnections between property, tort, and contract; on its sensitivity to both distributional and efficiency considerations; and on the choice between civil and criminal sanctions for violations of property rights” (150). An entitlement is “an interest that the law does or should protect. The law can do so by using one or more different sorts of rules: ‘property rules,’ ‘liability rules,’ and ‘rules of inalienability’” (149). Here are the differences:

- A property rule: “protects an entitlement if anyone who wishes to remove it from its holder must buy it from the holder in a voluntary transaction at a price agreed upon between the buyer and the holder-seller. A property rule so defined applies only to market-alienability” – gifts can always be offered and accepted.

- A liability rule: “protects an entitlement if and only if anyone who takes or lessens the value of the entitlement must pay a collectively determined… amount to its holder” (150).

- A rule of inalienability: “protects an entitlement if and only if its transfer is not permitted between a willing buyer and a willing seller” (150).

A property rule, in this analysis, involves a collective decision about who gets an initial entitlement but not as to its value, whereas a liability rule involves collective decisions on both who gets an initial entitlement and what it is worth. A rule of inalienability not only protects an entitlement but also limits or regulates it; it involves the most state intervention. Most entitlements are protected by a combination of property rules, liability rules, and, to a lesser extent, rules of inalienability (150). (http://www.propertytaskforce.org/node/12)

(Source: Munzer, Stephen R. “The Commons and the Anticommons in the Law and Theory of Property.” The Blackwell Guide to the Philosophy of Law and Legal Theory. Ed. Martin P. Golding and William A. Edmundson. Blackwell Publishing, 2004).