The Commons Call to Revise Private Property Rights

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Wealthier people naturally tend to favor the broadest, least restrictive private property rights, as these allow them to buy their way to the front of many kinds of lines. The commons asks us to consider a different paradigm of social and moral order.
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"Think Like a Commoner" by David Bollier outlines the importance of thinking of an alternative to the corrupt market state.

In our age of predatory markets and make-believe democracy, our troubled political institutions have lost real sight of real people and practical realities. But, if you look to the edges, ordinary people are reinventing governance and provisioning on their own terms. In Think Like a Commoner (New Society Publishers, 2014), David Bollier introduces the people, projects and vision now spawning a global movement. The following excerpt from chapter 7, “The Empire of Private Property,” examines private property rights and a offers a different paradigm for social order.

The Empire of Private Property

A ship is on a cruise sailing from port to port. Laid out on the upper deck are deck chairs; there are three times more passengers than chairs on board. During the first few days of the cruise, the deck chairs have a constant change of occupants. As soon as someone gets up, the chair is considered free; no one accepts the idea of placing handkerchiefs or other objects on chairs to indicate that they are being used. This is an expedient arrangement to allocate the limited number of deck chairs.

But once the shift sails into port and a large number of new passengers come on board, this arrangement breaks down. The newcomers, who all know each other, follow a different social convention in using the deck chairs. They draw the chairs toward themselves, and, from then on, lay exclusive and continuous claim to them. As a result, the majority of other passengers cannot use any chairs at all. Scarcity reigns, fights are the order of the day, and most of the guests on board find themselves less comfortable than before.  

The “allegory of the deck chairs,” as described here by German sociologist Heinrich Popitz (and brought to my attention by Silke Helfrich), illustrates just how malleable the idea of property really is. While formal laws may declare what property rights people may have in given circumstances, our social norms are at least as important a force — and those are highly adaptable.

The cruise ship passengers had a choice. They could treat the deck chairs as their exclusive individual property even though it meant that many passengers would have to do without — or they could treat the chairs as a shared resource that would more or less meet everyone’s needs. How we define property rights matters because they influence the sorts of personal and social entitlements we may enjoy, affect the kind of social relations we will have and have enormous effects on our sense of well-being (or alienation).

In a much-quoted definition, the eighteenth-century jurist William Blackstone described property rights as “the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” He implied that property rights belong solely to individuals. But of course property need not be defined this way. As the cruise ship passengers showed, they could choose to exercise temporary individual “use rights” to the same resource instead of exclusive possession. (To be technical, the cruise ship owner is arguably the “owner” of the deck chairs, but the passengers possess them for limited periods of time and in this case are free to set their own rules.)

Different property rights schemes have very different implications for how people’s needs are met (or not met). Such choices influence the nature of the social order and the general attitudes among people. This may be the real point of the allegory of the deck chairs — that property rights are more malleable than most people suspect; that their design can be altered; and that such choices have far-reaching effects on how we relate to each other and how we use resources.

People like to think of property as a fairly self-evident category. By default they tend to see it as a private right to exercise exclusive control over physical objects such as land, cars and smartphones. A landowner typically sees his plot of land as a fixed, individual parcel of inert soil over which he may do whatever he wants. But the conceit that “property” has no social or ecological implications is a fantasy of modern life. In reality, a piece of land is a living part of a living ecosystem. Even as a commodity, its value is dependent upon the character of adjacent pieces of land and the larger ecosystem. A country home with sweeping views of the surrounding countryside alive with chirping birds and friendly neighbors is more valuable than an identical house located next to a factory and a belching smokestack.

In this sense, land is really a fictional commodity, as we have seen. It may be treated as private property, and we maintain the illusion that it is truly self-contained and fungible. But it is not really a bounded unit whose fullest value can be expressed by a price, in isolation from its context. Property is a kind of social fiction — an agreed-upon system for allocating people’s rights to use a resource or exclude access to it. Individual property rights are by no means the only or best way to manage a resource. Land can be well managed as a trust on behalf of the public and future generations. It can be managed through cultural practices and traditions that treat it as a sacred gift of nature, as indigenous peoples often do. Specific and limited rights can be allocated to people in various ways, as farming collectives and conservation easements often do.

Libertarians and free-market champions like to argue that private property rights are a natural if not God-given entitlement. They tend to argue that theirs is the only legitimate system of property law, and that collective property rights are economically impractical, politically oppressive and morally suspect. A legal regime of private property is seen as a universal moral imperative.

This amounts to ideological bluster. In reality, the scope of property rights varies immensely from one culture to another, and even within one culture’s history (not to mention within a culture at a given moment, because there are multiple types of property!). Let’s keep in mind, too, the sly deception that the very term “private property” advances. The term often serves as a euphemism for corporate property, a far larger, more powerful and problematic creature than the personal property associated with individual households.

The Inalienable Rights of Commoners

Property rights do not arise naturally, as the great Digger leader Gerrard Winstanley noted in 1659. They are the result of conquest: “For the power of enclosing land and owning property was brought into the creation by your ancestors by the sword.” A Goethe poem, “Catechism,” makes this clear in a conversation between a teacher and a child. “Bethink, thee, child! Where do those gifts come from? Something from yourself alone cannot come.” The child replies that they came from Papa, and that Papa got them from Grandpapa. But where did Grandpapa get them, the teacher asks. Child: “He took them all.” The simple appropriation of things — perhaps with sophisticated legal doctrines to serve as justifications — is arguably the real origin of many property rights.

To be sure, sometimes people affirmatively choose private property regimes without a full understanding of the larger social ramifications. For example, a generation ago, many native peoples in the state of Alaska embraced the idea of administering their traditional lands and resources through “native corporations” — a shift that led to mismanagement of the resources, corruption, inequality and, in some cases, outright dispossession, as outside investors bought up lands now treated as commodities, not sacred inheritances. Similarly, the estate of Dr. Martin Luther King, Jr., run by his children, has treated his writings, images and audio recordings as commercial properties to be sold to the highest bidders, ostensibly to support the preservation of Dr. King’s legacy. The King estate has even claimed a copyright in the iconic “I Have a Dream” speech and once licensed its use to a telecom company for a television and print ad campaign.

Private property rights serve all sorts of useful purposes, of course, and over the course of history have served to emancipate people from the tyranny of kings, aristocrats and authoritarians. But it is also true that private property law can be a nasty form of oppression and coercion in its own right. Taken to extremes and applied to the exclusion of other moral, social and ecological concerns, it is a singularly useful tool for achieving enclosures.

Many property theorists note that the actual scope of property rights has changed significantly over the centuries to meet new economic, technological and social circumstances. The rise of railroads and the Internet disrupted settled understandings of the scope of property rights and the duties of owners, for example. Newly built railroads often threw off sparks that started fires on adjacent farmland, raising questions about whether railroads should be held liable for the resulting harm to landowners. (US courts ruled that this was an inescapable price of economic progress.) Similarly, as the Internet and digital technologies have made it easier to copy and share books, film and records, they have triggered major political battles over the proper scope of copyright laws.

As such stories suggest, the modern tendency to assert absolute individual property rights is a libertarian fantasy. One person’s property rights invariably end up affecting another person’s property rights; everyone’s freedom cannot be limitless. Indigenous peoples help us see that Western conceptions of property reflect some deep-seated cultural attitudes toward nature and social relationships. We moderns presume that humans can commoditize water, land, genes and other elements of nature as if they are inert objects that can be isolated from their natural context and owned as chattel.

Private property rights are not necessarily hostile to functioning commons. Indeed, I believe the two can be mutually compatible and even work hand in glove. Examples include land trusts (“private property on the outside, commons on the inside”), digital texts and music (copyrighted by the creator but made legally shareable via fair use rights and Creative Commons licenses) and cooperatives (market enterprises owned and managed by co-op members for their own benefit).

The problem is that dominant market-based forms of law usually privilege individual rights and ignore collective rights and needs. Law does not usually recognize the commons as an institutional form, so it can be difficult to achieve a collective purpose while working within the straitjacket of individual property rights. That’s why protecting commons from enclosures has generally required legal ingenuity, at least within the context of the modern liberal state: the commons exists within a lexical void, rendering it unnamed and inscrutable.

It’s important to see that private property and commons are not simply mirror images of each other. The commons is not simply “non-property,” as some have claimed. “Non-property” amounts to the “free-for-all” or “no-man’s-land” that Garrett Hardin mistakenly regarded as commons. No: the commons is not simply another variant of property. Its character is quite different.

First, the commons is less about ownership as we usually understand it than about stewardship. Ask indigenous peoples if they “own” the land and they will reply that the land owns them. To talk about ownership brings to mind the “sole and despotic dominion” over a resource that Blackstone described. A commons implies a more personal engagement with a resource and a longer-term perspective. It also implies a richer ongoing set of ethical and cultural relationships than private property normally entails.

A commons is about the shared management of a resource by many — something that may or may not require formal property law to achieve. In the case of the deck chairs, for example, the “legal system” that governed how people could use them was entirely social. People tacitly negotiated and observed a certain set of rules. There was no formal statute or private contract spelling out how a passenger must behave. The system was all based on a social understanding, an instance of vernacular law, as described above. A coffeehouse or bar may be privately owned, but its social character and tone are largely defined by the customer/commoners, not the owner.

It is entirely natural for people to organize and enforce their own rules informally, or to follow unwritten etiquette as a matter of custom. Most Americans implicitly understand that if you want to buy movie tickets at the box office or hot dogs from a sidewalk vendor, you queue up in line. That’s considered the fair and orderly way to gain access to certain limited resources. “First come, first served” — a rudimentary principle of social protocol for certain everyday circumstances — is particularly effective because it is self-organized and self-enforced.

And what if money and private property rights interfere with the socially negotiated consensus? That’s essentially what happens in some high-volume amusement parks. Disneyland actually sells rich people tickets giving them the right to go to the front of the line. People who can’t afford VIP tickets have to wait. Is that fair? Our intuitive sense of social fairness says No — but it does illustrate what happens when private property rights are asserted as the default entitlement. One reason that private property rights are so highly valued is because they can be bought and sold. Wealthier people naturally tend to favor the broadest, least restrictive private property rights, as these allow them to buy their way to the front of many kinds of lines.

The commons asks us to consider a different paradigm of social and moral order. It asks us to embrace social rules that are compatible with a more cooperative, civic-minded and inclusive set of values, norms and practices. The commons bids us to reject Homo economicus as the default ideal of human behavior. It asks us to entertain the idea that certain rights should be inalienable — that is, not for sale — and to elevate certain social values over private property rights.

This is the challenge faced by so much of the human rights movement — to recognize human dignity, respect, social reciprocity and social justice as elemental human needs that law must protect. Traditionally, human rights have been seen as an abstract, universal norm selectively enforced by the nation-state (depending upon political circumstances). The commons proposes a more local, “on the ground” reconceptualization of human rights: a way for communities to meet basic needs more directly and, quite possibly, more reliably.

Reprinted with permission from Think Like a Commoner: A Short Introduction to the Life of the Commons by David Bollier and published by New Society Publishers, 2014.

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