Sermon on the Land

Animal husbandry, 2300 BC

Animal husbandry, 2300 BC (Photo credit: Marcel Douwe Dekker)

At the risk of being labeled a communitarian fundamentalist, and preaching at you, I think that our first duty both to ourselves and to this world is to participate in a localized, sustainable, self-reliant (within a global system of balanced, recursive self-reliance and interdependence), community of peers. Without a community that achieves a certain threshold of economic self-reliance, security, and basic independence for its members, either in urban or rural settings (but without being too large to be personally intimate and nurturing), one tends to become a victim, a serf, or even a slave, caught in a trap; and thereafter to sink deeper and deeper into tragic compromises of ones values and actions. This can happen even to talented high achievers. It has been called the rat race.

And without a certain degree of geographic localization of such communities, even if not technically required for solidarity, production, or economic self-reliance, “unoccupied” parts of the commons tend to get robbed. Even if resources are considered common property or non-property, belonging to all, good stewardship is seldom an absentee role.
English: Private Property.

(Photo credit: Wikipedia)

Husbandry is also not the work of strangers. I have seen this in many situations over the years. And that’s why I agree with Aristotle that private property (conditionally, within reason) can promote virtue. But this only applies to property that is occupied or tended in a way appropriate to its type and in a way that is responsible to society and to future generations. Abuse, neglect, and absentee ownership are anathema.

I understand of course that many people don’t want to be tied to a particular place–people are increasingly mobile and globally oriented– and I think that’s fine as long as the rest of us are enough in number to keep the local places–all the city blocks, the paddocks, and the wide-open wild spaces– looked after, tended to, and deeply cared for.

Amen?
Poor Richard
Packard plant

Packard plant by Ashley Dinges, on Flickr

Related articles

All Ownership is Conditional (and always has been)

GWMNM private property sign

GWMNM private property sign (Photo credit: Wikipedia)

Almost all property ownership is conditional, and it always has been. This thousands-of-years-old legal doctrine is seldom appreciated or understood by modern activists, politicians, economists, or even by lawyers.

Some think private property is the cornerstone of civilization. Others criticize the institution of private property, finding in  it the root of all evil. They may hold the institution of private property responsible for all manner of social injustices and environmental ills. The alleged evils of private property are often attributed to the underlying legal system in which property ownership is established and enforced. Sometimes it is argued that private property should be abolished and/or that alternative legal frameworks, such as a “law of the commons” need to be established through legislation.

But the law of the commons and the doctrine of conditional ownership are already fundamental parts of our legal system, and have been since remote antiquity, leading me to think that our problems are less structural than maybe cultural or psychological.

It shouldn’t be surprising that political thinkers tend to see remedies to social and environmental problems in political terms, economists in economic terms, philosophers in philosophical terms, and so on, without any of them giving a lot of thought to legal history.

Because the doctrine of conditional property in existing law is so little understood outside a fairly small circle of scholars, and because the commons are constantly being despoiled,  privatized, and mismanaged, people tend to assume that our legal framework is deficient in this area.  So they naturally assume that we need new laws to protect the commons, rather than looking at existing law and asking why it is under-utilized. But if we don’t understand the the ways that existing law can  protect the commons, how will we be able to protect that important part of our legal heritage from attack by corrupt courts and legislatures? And that part of our legal heritage most certainly is quietly under attack, right under our noses. We may loose it before many of us ever even knew it existed.

The confusion about private property ownership is exacerbated by theories about “natural rights” and “natural law”, which have little or no basis in our actual legal system, but belong instead to the theoretical justice systems of  philosophers. Natural law (as in philosophy, not natural science) and natural rights theories have been advocated by conservative and liberal thinkers alike, in various historical contexts, to affirm or dispute the authority of kings or governments, and in general to dispute existing laws they didn’t like. Nature’s law (sometimes also mashed up with “divine law”) is different things to different people. Examples can be found in nature for anything from symbiosis to cooperation to violent territorial conquest. Natural law theories are often simply attempts by one group to dispute the prevailing legal authority of another group by appealing to a vague, transcendental authority. Thus natural law theories are now most commonly used by anarcho-capitalists and neo-libertarians to dispute the authority of civil law to regulate their economic activity.

In most Anglo-American jurisdictions, the body of  law includes constitutional law and

statutory law” enacted by a legislature, “regulatory law” promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or “case law“, i.e., decisions issued by courts (or quasi-judicial tribunals within agencies) (http://en.wikipedia.org/wiki/Common_law#1._Common_law_as_opposed_to_statutory_law_and_regulatory_law)

The term “civil law” has several different connotations (one being a distinction from criminal law), but in the map below it is used to mean “a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not (as in common law) determined by judges.” (Wikipedia/Civil law)

Legal Systems of the World (via WikiMedia)

Color Legal System Type
Civil law
Common law
Custom
Fiqh
Common law and Civil law

Contrary to the above map, I would characterize the US as a hybrid system of constitutional law, civil law, and common law; but of the three, common law may very well be the most powerful and the least appreciated.

Law in the West may be inspired or influenced by romantic interpretations of  nature (the law of the jungle, survival of the fittest); or by ethical, moral or religious teachings; or by scientists, philosophers, economists, politicians, jurists, etc.– but the law is not ruled, over-determined, or limited by any of those influences. Law is a complex bit of sausage-making that has been evolving for thousands of years. We have a legal heritage that one age and culture has passed to the next since even before the times of ancient Greece and Rome. The US, for example, did not start all over from scratch with a brand new legal system after the US Constitution was adopted. For the most part we continued to follow English Common Law. Ironically, many new laws which are established by parliaments, legislatures, executive agencies, courts, etc. are created in ignorance of, and often to the detriment of, the existing body of  law, especially the common law. Conservative efforts often harm the law by elevating private, special interests above the general welfare. Liberal efforts often harm the law by trying to reform a legal system they don’t adequately appreciate or understand, and by putting the structural cart of law before the functional horse of human behavior.

Upper portion of Hammurapis’ stela (Wikimedia)

When activists, political thinkers, and economists criticize the mainstream conventions of property ownership they often fail to realize that they are objecting to various implicit defaults and assumptions about ownership in common practice today. But those customary defaults are by no means the only arrangements permitted and protected under most modern legal frameworks.

The terms and conditions of a specific transaction or instance of ownership may be codified in legal terms and placed in deeds, titles, contracts, etc.. “Standard” legal language is used to convey the standard, default assumptions. But alternative, atypical terms and conditions of ownership can be legally codified as well — without any structural changes in our legal, political, or economic systems. Activists and reformers often blame a legal system they may not adequately understand for the ways in which the system is most commonly being used by the individuals and interest groups in society.

In other words, ownership problems may be rooted more in the philosophy, psychology, and behavior of individuals, groups, and cultures than in the technical structure of our legal systems– at least that seems to be the case in the modern Western nations I am most familiar with.

Our oldest known legal code is the Code of Hammurabi  — a  Babylonian law code of ancient Mesopotamia, dating back to about 1772 BC and found on the Hammurapis’ stela. “Nearly one-half of the Code deals with matters of contract, establishing, for example, the wages to be paid to an ox driver or a surgeon. Other provisions set the terms of a transaction, establishing the liability of a builder for a house that collapses, for example, or property that is damaged while left in the care of another. ” (Wikipedia)

Here are some samples of conditional property laws from the Code of Hammurabi:

36. The field, garden, and house of a chieftain, of a man, or of one subject to quit-rent, can not be sold.

37. If any one buy the field, garden, and house of a chieftain, man, or one subject to quit-rent, his contract tablet of sale shall be broken (declared invalid) and he loses his money. The field, garden, and house return to their owners.

38. A chieftain, man, or one subject to quit-rent can not assign his tenure of field, house, and garden to his wife or daughter, nor can he assign it for a debt.

39. He may, however, assign a field, garden, or house which he has bought, and holds as property, to his wife or daughter or give it for debt.

[Hammurabi’s Code of Laws  Translated by L. W. King]

Under Western legal systems (that evolved largely from English common law and Roman civil law),  ALL ownership is conditional. The relationship between an owner and the  thing that is owned is a form of custody.

Despite what we naively call “absolute” private ownership, the entire bundle of property rights is never held by any one owner. There are always multiple stake-holders with legal and equitable interests in any resource, even when the majority of the bundled rights are in the custody of a private owner. One  interest that is always present, both in law and equity, even when temporarily delegated to private custodians, is the public interest. The public interest includes public health, the public welfare, the sustainable viability of the ecosystem, and the interests of future generations, among other things.

Bundle of rights likened to a bundle of sticks (Wikimedia)

A private owner who holds a deed to property that conveys what in the US we call a “clear, unencumbered, fee-simple absolute title” is nonetheless subject to the rights of others to have unobstructed views, access to other property, or a neighborhood free of public hazards and nuisances. There are literally dozens of rights that others may have to or over some aspect of my private property.

In ancient times, one of the stakeholders that was always included in any ownership arrangement , even if only implicitly, was the king (and sometimes a deity). That is the origin of the legal doctrine of  conditional property ownership. Today however, in modern Western societies, the legal rights and equity interests once reserved by a sovereign or deity are now vested collectively in we, the people.

As a blogger comments at Commoning, “All property relations are conditional – the concept of absolute ownership is an idea that serves a logical function in some liberal jurisprudence and a misleading rhetorical device for various uninformed libertarians with no social conscience.”

The principle of conditional property ownership  is explicit by contract or implicit in many of our legal doctrines, such as:

Ironically, Western legal systems are doctrinally and structurally more aware and protective of these third-party and public interests than are most of those who use the system to conduct their business and enforce their property rights (and most of those who criticize the legal system for the sins of those who use it antisocially).

A liberal defense of private property

The concept of private property, like a stone axe, a hammer, or a gun, has utility even if it can also be abused. Aristotle writes, in Politics:

“For that which is common to the greatest number has the least care bestowed upon it. Everyone thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual. For besides other considerations, everybody is more inclined to neglect the duty which he expects another to fulfill; as in families many attendants are often less useful than a few.”

This is not armchair philosophy. It it something we have all seen in our own lives. Certainly there are exceptions, but what Aristotle describes is as close to a law of human nature as I know. I have often seen it play out among family members, friends, co-workers, and commune members.

In some Soviet state-run farms, individuals and families were given small plots to grow their own food. It turned out that the productivity per acre was far greater on those hand-tended private plots than in the large fields where the latest scientific methods were used. “The size of the private plot varied over the Soviet period but was usually about 1 acre (0.40 ha).  … However, the productivity of such plots is reflected in the fact that in 1938 3.9 percent of total sown land was in the form of private plots, but in 1937 those plots produced 21.5 percent of gross agriculture output.”  https://en.wikipedia.org/wiki/Kolkhoz

Plato (left) and Aristotle (right), a detail of The School of Athens, a fresco by Raphael. Aristotle gestures to the earth, representing his belief in knowledge through empirical observation and experience, while holding a copy of his Nicomachean Ethics in his hand, whilst Plato gestures to the heavens, representing his belief in The Forms. (Wikipedia)

Aristotle says further:

“It is evident then that it is best to have property private, but to make the use of it common… And also with respect to pleasure, it is unspeakable how advantageous it is, that a man should think he has something which he may call his own; for it is by no means to no purpose, that each person should have an affection for himself, for that is natural, and yet to be a self-lover is justly censured; for we mean by that, not one that simply loves himself, but one that loves himself more than he ought; in like manner we blame a money-lover, and yet both money and self is what all men love. Besides, it is very pleasing to us to oblige and assist our friends and companions, as well as those whom we are connected with by the rights of hospitality; and this cannot be done without the establishment of private property, which cannot take place with those who make a city too much one [referring to Plato’s idea of the ideal Republic (city) holding all property in common]; besides, they prevent every opportunity of exercising two principal virtues, modesty and liberality. Modesty with respect to the female sex, for this virtue requires you to abstain from her who is another’s [referring to Plato’s idea for the Republic’s ruling class to hold all their wives and children in common]; liberality, which depends upon private property, for without that no one can appear liberal, or do any generous action; for liberality consists in imparting to others what is our own.” (Aristotle, The Politics, II.v.)

It is very interesting that Aristotle says “it is best to have property private, but to make the use of it common.” He goes on to extol the virtues of sharing and hospitality, and to propose that they are virtues only thanks to private property. Elsewhere he talks about using universal education, and not collective ownership as Plato proposed, to achieve the common good.

By defending private property I am not suggesting that Garrett Hardin’stragedy of the commons” is inevitable. Far from it. Few commoners are as stupid as Hardin seems to think. In most cases commoners understand that their enlightened self-interest lies in protecting the commons from abuse and managing it sustainably. Even if they neglect their own responsibilities to the commons and cause problems, others are likely to intervene. Self interest will move us to regulate each other if not ourselves.

Nor am I suggesting that all property should be private. The public interest is best served by a diversity of conditional ownership relations for different applications, and even a diversity of ownership forms for the same applications. For example we should probably have a combination of private farmland, community farmland, and national farmland. On the other hand, we should probably not, as a rule, have private wetlands, coal mines, or oil fields. But here again, few rules are without exceptions, as in the case of the Nature Conservancy‘s wetland holdings. The Nature Conservancy is a private corporate entity that purchases and encloses natural habitats and excludes spoilers.

One thing that Aristotle never contemplated was the form of  “private” ownership practiced by capitalists and their immortal and often trans-national corporations. The virtues that private ownership may promote in people and communities are entirely absent from balance sheets and quarterly reports. The perpetual and amoral ownership by capitalist corporations is so different from the kind of conditional private ownership practiced by people that it should have another name. It should probably be called property tyranny.

The biggest problems associated with ownership are not about privacy, enclosure, or exclusion per se but about the degrees, arrangements, and durations of those things. Both private and public enclosure of property can work for or against the public interest depending on the circumstances. Something I like to call “preemptive enclosure” is a means of using conditional enclosure of the commons, by the commons, for the commons. Conservation easements, land trusts, and Creative Commons copyrights are just a few examples.

In my opinion it is not in the public interest for the majority of land or durable property in a state to be held in direct public ownership. I agree with Aristotle that individual custody and stewardship of property promotes moral virtues. It is also consistent with the principle of subsidiarity. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level. This especially applies to the custody and management of property where absentee ownership is one of the most common sources of problems. Private ownership is still always subject to conditions (via common, statutory and administrative law) to protect public interests such as public safety, conservation, and sustainability.

Structure (law) vs practice (application)

In my opinion the greatest problems of ownership in practice are:

  • absentee, idle, or disinterested ownership
  • extractive ownership
  • ownership in perpetuity
  • excessive concentrations (actually just another variety of absentee ownership)

None of these are entirely structural (that is, dictated by our legal or economic system). They are behavioral as well.

The legal and institutional structures of society are formalized, normative reflections of the aggregate psychology (implicit associations, cognitive and cultural biases, assumptions, etc.) and behavior of the people. The structures of society have a degree of normalizing influence, but if the structures are changed without the underlying cultural assumptions and biases being changed, the old behaviors will tend to return. For example, a revolution or redistribution of wealth may only have a temporary effect– the previous social, political, or economic disparity may re-establish itself within the new structures, adapting the new structures to the old behaviors. History is full of examples, including the US “experiment in democracy”, which has come  “full circle” from a revolution against a partnership between the British Crown and the East India Company (and other “royal-chartered” mercantile monopolies) to our present domination by a corrupt political class in partnership with global corporations.

Abolishing private property or redistributing wealth by structural reform alone might possibly result in an eventual return of the same behaviors in new structural guises. On the other hand, changing our practice within the existing legal framework would probably result in a gradual change of the structural framework to reflect our new behavioral norms, almost as a matter of course.

However, promising new styles or designs of conditional ownership are gradually being introduced into public awareness. One example is called “generative ownership:”

“[Generative] ownership designs are aimed at generating the conditions where all life can thrive. From the Greek ge, generative uses the same root form found in the term for Earth, Gaia, and in the words genesis and genetics. It connotes life. Generative means the carrying on of life, and generative design is about the institutional framework for doing so. The generative economy is one whose fundamental architecture tends to create beneficial rather than harmful outcomes. It’s a living economy that has a built-in tendency to be socially fair and ecologically sustainable.

“Generative ownership designs are about generating and preserving real wealth, living wealth, rather than phantom wealth than can evaporate in the next quarter. They’re about helping families to enjoy secure homes. Creating jobs. Preserving a forest. Generating nourishment out of waste. Generating broad well-being.”  (Majorie Kelly,  The Emerging Ownership Revolution)

Our existing legal framework has many mechanisms for protecting the commons, but we often fail to use the legal tools we have at our disposal. We sit by while corrupt regulators give away public property and resources to corporations. Why? Our legal system does not dictate that. Could our addiction to cheap energy and consumer goods have anything to do with it?  We could encourage private property owners to trade various kinds of rights to their properties in exchange for tax breaks. Or we could impose tax penalties or fines on owners who mange their property in ways that harm the public good. Why don’t we do this more intensively and consistently? Could our lifestyles have more impact on our environment and our economy than our legal system does?

Intellectual Property (IP)

In the domain of intellectual property (IP), the traditional, default form of ownership of creative or intellectual works was “all rights reserved”. Ironically, those very terms expressed the idea that individual rights (plural) made up a bundle of rights that could be separated and distributed among various stakeholders. Eventually, within the existing framework of copyright law,  conditionality of ownership came to be explicitly defined by various forms of conditional copyright such as the GNU General Public License or Creative Commons license. Organizations like GNU and Creative Commons perform a valuable public service by codifying formerly atypical forms of IP ownership in legally defensible terms (largely a question of adequate specificity and formality) and making those well-crafted legal templates available for public use.

(via Wikipedia)

It is crucial to understand that those new forms of copyright grew out of practice conducted under the existing legal framework. The existing framework was extended (to the extent it changed at all) in a direction established by practices adopted in the free/open software community. We did not make legislative changes to the copyright framework which then unleashed new forms of enlightened social behavior.

However…at the same time that  free/open communities and peer-production communities have been hacking copyright for the benefit of the commons, the corporate world,  especially big entertainment, has succeeded at introducing novel structural defects into the copyright law framework–excessive durations, unreasonable fair use limitations, disproportionate penalties for infringement, and inadequate forms of due process in enforcement. They are structural defects because they undermine the public interest in favor of predatory and monopolistic corporate interests and there are few if any short-term behavioral remedies or alternatives short of opting out of participation in the production and consumption of corporate media content. This is a very limited remedy under the current conditions of monopolization of the industry.  Appropriate structural remedies would include breaking up the media monopolies and returning the terms and scope of copyright and fair use to something like their original specifications, thus restoring greater conditionality. The new forms of  “industrial strength”  copyright law are recent inventions that break with all former legal doctrine. Unlike the commons-oriented copyright extensions which are consistent with conditional property traditions, the industry IP proposals aim at near-absolute exclusive ownership of IP in perpetuity. The introduction and persistence of such structural aberrations depend on the corruption of our political and judicial institutions. Both have become captive to global monopoly capitalism. Thanks to its excessive concentration of wealth, global monopoly capitalism is sometimes able to assert its preferred legal framework — might makes right — over that of the people.

In the absence of a successful structural defense or reform of the copyright framework, the commons-oriented community may have little alternative but to opt completely out of the corporate media framework. In the long term the creative, co-operative working class has the skills and abilities to build an entire media counter-economy and infrastructure from the ground up. In that event we can one day turn to the old media industry and say “Be my guest–keep all your crappy IP to yourself.”

Atlantic salmon. Salmo salar. (Wikipedia)

But patents are another story. Biotech moguls like Monsanto are patenting genetically engineered (GE) and genetically modified (GM) organisms and then loosing them upon the world to spread their Frankenstein IP far and wide. Once their patented-gene-carrying pollen infects your organic corn, soy, or alfalfa your crop may belong to them. Indian farmers tried to tell Monsanto to shove their mutant seeds only to find natural seeds and seed saving outlawed by trade agreements and treaty (WikiLeaks has documented US State Department diplomats working directly for Monsanto). Next it will be GE/GM animals like transgenic salmon that will “escape” into the wild (accidentally, of course) to infect wild populations with patented genes.

That makes the increasingly popular corporate practice of trademarking ordinary English words like “face” seem almost innocuous by comparison.

Needless to say all of this flies in the face (oops) of common law and common sense. Remedies to protect the commons and the public interest from this Trojan-IP invasion will almost certainly need to be served with a side-order of civil disobedience.

Real Property

In the case of real estate and other tangible property the conditionality of ownership can be asserted through deed restrictions, covenants, easements, trust agreements, purchase and lease agreements, contracts and other means. Such arrangements are strongly supported by US courts if the terms are adequately specified and formalized. Many states now have legislatively created conservation easement programs and trusts for various public assets. But such things are perhaps more commonly implemented by non-governmental organizations like nature conservancies, community land trusts, non-profits, worker cooperatives, and individual philanthropists. If the legal framework has changed at all, it is only to the extent that practice has paved the way.

It is our footpaths, as more and more of us practice a new kind of behavior, that gradually are trodden into law. It is easy to make the logical and philosophical error that behavior follows law, that the law prescribes and constrains our behavior, because that is often our most personal, proximate, and visceral perspective. But the reverse is true. Our collective behavior, over generations and eons, becomes structurally crystallized in our laws and institutions. To change our laws in the right way, the natural and organic way, we must first change ourselves and our practice.

However, there are several practical (not structural) obstacles to the wide use of atypical conditional property arrangements for types of property other than IP (although atypical IP probably had similar issues early on). One problem is related to purchases and investments financed by third parties such as banks, retail finance companies, mortgage companies, and venture capital firms. The middlemen in property transactions tend to be very conservative about the conditionality of ownership. They want to retain as much of the bundle of rights that law and custom allows until the mortgage or other credit terms are satisfied. It may only be after a property transaction is “paid in full”  that a purchaser will be free to define an atypical distribution of rights for the property in question. This situation will change as atypical transactions and ownership models become more common, and as more investors and financial middlemen come to understand and tolerate such arrangements (or in the case of public-spirited institutions, even to favor them).

Another major problem is the shortage of attorneys who are familiar with atypical property ownership models and the range of legal instruments that can be used to implement alternative forms of conditional ownership that serve the public interest and the commons. My work in the 1970’s researching the legal foundations for conservation easements and community land trusts exposed me to the lack of depth in property ownership expertise that existed in the legal and philanthropic communities. My recent exposure to the history of the Daniel Pennock Democracy School and the Community Environmental Legal Defense Fund (CELDF) convinces me that the situation has improved but little in the past three or four decades. Hopefully that is finally about to change with the CELDF’s new programs and other “Law of the commons” projects that are in the making.

The real tragedy of the commons

Those parts of our legal system that deal with the law of the commons and conditional property ownership are weak or rusty not by design but from disuse. Whose fault is that? Is it a failure on the part of bad, selfish, and greedy people? Sure. But it is also a failure of progressives and liberals (including liberal lawyers, judges and scholars) who are well-intentioned but legally naive and who fail to look outside the box of prevailing legal norms.

In addition to the behavioral issues I’ve mentioned, there are clearly some real structural defects in our legal framework that have accumulated through the influence of powerful and corrosive special interests on our political and judicial system. Examples are the perverse trends in commercial IP law, industry-rigged environmental and regulatory law, and the unprecedented doctrine of corporate person-hood with its perpetual ownership and freedom from inheritance tax liability. All this stuff is relatively new in legal history and it has happened on our watch.

“It is not wrong to say that the nature and intent of a society reveal themselves in the legal and customary concepts of property held by the various members and classes of that society. These property concepts do not change without an incipient or fundamental change in the nature of the society itself. The history of property relations in a given society is thus, in a way, the history of the society itself .” (Schurmann 1956: 507, Properties of Property: A Jurisprudential Analysis)

Our ancient legacy of conditional property law is well known to capitalists, and they are actively chipping away at it all the time. Few liberals even know this body of law exists,  but the common law is as much a part of our commons as our creative works and our ecosystem. And we are sorely neglecting it. Whose fault is that?

If you want to be a steward of the commons, it will help to begin with some knowledge of the common law of ownership. The resources below are some of the best places I know to start.

Poor Richard

Related posts on PRA 2.0

Important Resources

Public Trust Doctrine

The public trust doctrine has its roots in the ancient Roman concept of natural law that held certain things, including the shores of water, were by their nature common to all. Opinion of the Justices (Public Use of Coastal Beaches), 139 N.H. 82, 87 (1994).

The doctrine was adopted under English common law that the tidelands and navigable waters were held by the king in trust for the general public. Id. These public rights were vested in the colonies of America, and following the American Revolution, all the rights of the king vested in the several states, subject to the rights surrendered to the national government by the Federal Constitution. Shively v. Bowlby, 152 U.S. 1, 14-15 (1894).

New Hampshire holds in trust its lakes, large natural ponds, navigable rivers and tidal waters for the use and benefit of the people of the State. State v. Sunapee Dam Co., 70 N.H. 458, 460 (1900). Navigability is not the sole test of whether a river is held in trust, but “when a river or stream is capable in its natural state of some useful service to the public because of its existence as such, it is public. Navigability is not a sole test, although an important one.” St. Regis Paper Co. v. New Hampshire Water Resources Board, 92 N.H. 164, 170 (1942). With regard to large ponds, the Supreme Court adopted a portion of the Massachusetts Ordinance of 1647 to find that a “great pond…containing more than 10 acres of land” is included with the public trust. Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 26 (1889), See also RSA 271:20 (defining state-owned public waters to include all natural bodies of fresh water having an area of 10 acres or more).

The uses and benefits subject to the public trust are not limited to navigation and fishery, but include other benefits. Various cases have held that the public trust encompasses “all useful and lawful purposes”, “what justice and reason require”… See Opinion of the Justices, 139 N.H. at 90-91. http://des.nh.gov/organization/divisions/water/wmb/rivers/instream/documents/ag_opinion.doc

 

Property, Commoning and the Politics of Free Software by Massimo De Angelis and J. Martin Pedersen (@|Commoning|, excerpted from The Commoner, Issue 14, Winter 2010)

“In legal and philosophical terms, property relations are relations between people with regard to things. In this way, the organisation of a commons is encoded in its property rules, which structure its use, access and decision-making rights and responsibilities accordingly. Property, then, is central to debates about commons and commoning: how do commoners relate to each other with regard to a given resource (land, code, rivers, forests, hills, cars) and how is a commons defined vis-a-vis the rest of the world? Questions such as class, gender and other hierarchies, environmental justice, sustainability and spirituality are relevant here. Most of these social dynamics – most of the time, even on the “outside of capital”– turn on property relations: who has access to what (tools, resources, land), when and under what conditions, who gets to decide and how are decisions made?

“Often, however, property is juxtaposed to commons – as if commoning was a negation of property. Unfortunately, this view presupposes and consolidates a very narrow understanding of property, where the general is conflated with the particular. Property relations are not only exclusive, private property rights as instantiated within capitalist democracy (that is, a particular conception of property). As a jurisprudential concept, property can be used to understand, analyse, reflect upon and organise social relations with regard to things in any context (this is the general conception of property). The conflation of the general with the particular, which conceals the historical and anthropological fact that property can be and is understood (very) differently, takes on a further dimension in colloquial talk. We have come to accept that property is stuff: things that we own, and that we own exclusively. As a rhetorical device in privatisation arguments it is very powerful because it invokes feelings that are close to home, literally. We say things like “this house is my property”.

“Similarly, privatisation arguments in the context of immaterial goods and resources invoke the same passions and feelings: this text or this source code “is the property of Microsoft”. Such a conception of property is not only a conflation, but furthermore hides the complexity of the social relations that property arrangements circumscribe and give rise to.

“It is obvious that social, cultural and political practices define any given property regime, hence analytically exploring property relations gives us an insight into the relation between the socio-cultural and the law. It is precisely at this level that commons are created and organised – and through the language of property we can articulate practices of commoning into property protocols (rules and agreements) that can provide stability of the commons on the inside and protection against threats of capital’s enclosure from the outside. Self-determination and autonomy begins by taking the law into your own hands. (Property, Commoning and the Politics of Free Software)

Properties of Property: A Jurisprudential Analysis (pdf), by J. Martin Pedersen (The Commoner, Issue 14, Winter 2010)

“No doubt the eighteenth century preferred rational treaties expounding the theory of property to
historical essays describing the theories of property. But … we … know that the institution of property
has had its history and that that history has not yet come to an end … We begin with the knowledge
that there must be as many theories of property as there have been systems of property rights.
Consequently we abandon the search for the true theory of property and study the theories of the past
ages. Only thus can we learn how to construct a theory suitable to our own circumstances” (Schlatter
1951: 10).

Property Rights in the Commons: The ubiquity of mixed systems (extracts from Ostrom’s Law: Property Rights in the Commons)

Ostrom’s Law: Property Rights in the Commons, Lee Anne Fennell (University of Chicago Law School) International Journal of the Commons, Vol 5, No 1 (2011).

Blackstones’s Commentaries on the Laws of England

The Commentaries and and some of Blackstone’s other work is the main source of my background in common law. I poured over Blackstone for nearly a year while I was researching the legal foundations for community land trusts and conservation easements. This is probably the greatest single record and repository of humanity’s common legal heritage and it is easily readable by educated laypeople. Various abridgements and online texts are available.

“The Commentaries were long regarded as the leading work on the development of English law and played a role in the development of the American legal system. They were in fact the first methodical treatise on the common law suitable for a lay readership since at least the Middle Ages. The common law of England has relied on precedent more than statute and codifications and has been far less amenable than the civil law, developed from the Roman law, to the needs of a treatise. (Wikipedia/Commentaries)

“When the Commentaries were first printed in North America (1772) 1,400 copies were ordered for Philadelphia alone. Academics have also noted the early reliance of the Supreme Court on the Commentaries, probably due to a lack of US legal tradition at that time.  Robert Ferguson notes that “all our formative documents — the Declaration of Independence, the Constitution, the Federalist Papers and the seminal decisions of the Supreme Court under John Marshall — were drafted by attorneys steeped in Sir William Blackstone’s Commentaries on the Laws of England. So much was this the case that the Commentaries rank second only to the Bible as a literary and intellectual influence on the history of American institutions”. Even today, the Commentaries are cited in Supreme Court decisions between 10 and 12 times a year.

“Within United States academia and practise, as well as within the judiciary, the Commentaries had a substantial impact; with the scarcity of law books on the frontier, they were “both the only law school and the only law library most American lawyers used to practise law in America for nearly a century after they were published”. Blackstone had drawn up a plan for a dedicated School of Law, and submitted it to the University of Oxford; when the idea was rejected he included it in the Commentaries. It is from this plan that the modern system of American law schools comes. Subscribers to the first edition of Blackstone, and later readers who were profoundly influenced by it, include James Iredell, John Marshall, James Wilson, John Jay, John Adams, James Kent and Abraham Lincoln.” (Wikipedia/Blackstone)

Related Resources

Organizations and Websites focusing on “The Commons”

  • The Community Environmental Legal Defense Fund CELDF works with communities to establish Community Rights – such that communities are empowered to protect the health, safety, and welfare of their residents and the natural environment, and establish environmental and economic sustainability.
  • Democracy School Online, (The Community Environmental Legal Defense Fund)
  • The School of Commoning “a growing worldwide community of people participating in the global and local commons. We support the developing commons movement, as well as interested organizations and individuals, with well-organized knowledge resources and educational programs on commoning and the commons.”
  • International Journal of the Commons  “The International Journal of the Commons (IJC) is an initiative of the International Association for the Study of the Commons (IASC). As an interdisciplinary peer-reviewed open-access journal, the IJC is dedicated to furthering the understanding of institutions for use and management of resources that are (or could be) enjoyed collectively. These resources may be part of the natural world (e.g. forests, climate systems, or the oceans) or they may emerge from social realities created by humans (e.g. the internet or (scientific) knowledge, for example of the sort that is published in open-access journals).”
  • On the Commons/Commons Magazine “a network of citizens and organizations that champions the cause of the commons on many fronts. Our mission is to advance a new worldview by naming, claiming, protecting and expanding the commons for the good of all.”
  • Commons Law Project “We must find new ways to protect our planet from the unsustainable growth imperatives of neoliberal economics and politics.  This will require a new architecture of “green governance”―laws, public policies, and social practices that can honor human rights and commons-based management of natural resources large and small…”
  • The P2P Foundation, Category:Commons “What we share. Creations of both nature and society that belong to all of us equally, and should be maintained for future generations. The Commons has the potential to replace the commodity as the determining form of re-/producing societal living conditions.”
  • Helene Finidori’s Blog “Rethinking Sustainable Development in terms of Commons.” Helene is a trail blazer.
  • Commoning (blog) ~ property relations and the architecture of commons ~  (appears to be inactive now but contains a lot of excellent material, especially on property law)
  • Democracy School Online, (The Community Environmental Legal Defense Fund)

Old wine in new bottles: Analyzing mixed socio-economic systems

Michel Bauwens.

Michel Bauwens –Image via Wikipedia

This is a response to “Should we worry about capitalist commons?” by Michel Bauwens of the The Foundation for P2P Alternatives. What follows won’t make as much sense if you don’t read that article first.

Avoiding the language trap

As Michel Bauwens acknowledged in an article about theories of property rights subtitled “The Ubiquity of Mixed Systems”, when we try to superimpose political and economic theories, doctrines, and ideologies on actual human society we nearly always end up needing to think in terms of mixed or hybrid systems. As he importantly noted in that article, an “arrangement that works in practice can work in theory.” (Ostrom’s Law) It is vital that in developing new economic and social theory we work from actual examples, cases, and histories as Elinor Ostrom did, and as Michel did  in “Should we worry about capitalist commons? by basing his discussion on the case of the free software movement.

Michel’s post also takes important steps in describing the relation between the socio-economic status quo at any given time and emergent relations and phase transitions. Michel writes:

It is simply inconceivable that a slave-based empire could undergo a phase transition towards the feudal mode of production, without the existence of proto-feudal modalities within that system; it is equally inconceivable that the feudal mode of production could have a phase transition towards the capitalist mode of production, without proto-capitalist modalities existing within that feudal system. It is the ultimate strengthening and intermeshing of these proto-capitalist modalities, which creates the basis for a political and social revolution that ultimately guarantees the phase transition.

This reminds me of the “include and transcend” trope in the Integral Theory of Ken Wilber and the Spiral Dynamics theory of  psychology professor Clare W. Graves.

Relationships between a status quo and an emerging transition state are often reflected in their respective linguistic and rhetorical idioms. Terminology can include and transcend or it can be provocative and divisive. Often a particular terminology is chosen precisely to signify affinity with one group and/or distinction from another, as in the case of “capitalist” terminology and “anti-capitalist” terminology.

I have learned as a computer programmer that I can take a flow chart depicting the logical relations between a set of inputs, outputs, and algorithms and I can code that sucker in any one of a dozen computer “languages”. What’s more, in any one of those languages I may have alternative choices of data structures, methods, etc. for accomplishing the same ends. Likewise a crafter of detective stories can tell the same story in many different styles and structures. Then that book can be translated into any number of languages.

The underlying logic, values, relations, and specifications of the computer program or novel are in many ways more important or fundamental than the language in which they are embodied. The latter becomes important only in relation to the environment in which the program must run or the book must sell. The same is true when it comes to expressing socio-economic models and theories with language.

One of my personal rhetorical preferences is to use terminology that is familiar and comfortable to people in the center in mainstream culture, especially when I am discussing ideas that may be culturally unfamiliar or uncomfortable to many. By choosing “business” terminology that is native to the mainstream, and even native to my political opponents, I sometimes alienate my own friends on the left. But my intent is a kind of rhetorical “Jujutsu” (a Japanese martial art for defeating an armed and armored opponent in which one uses no weapon).

Wikipedia says: “‘Ju’ can be translated to mean gentle, supple, flexible, pliable, or yielding. “Jutsu” can be translated to mean “art” or “technique” and represents manipulating the opponent’s force against him rather than confronting it with one’s own force.”

Or maybe I just take a perverse pleasure in being provocative towards my own philosophical and political community. Or both.

Actually, there is a good reason for stepping on liberal corns and tipping our radical sacred cows. All too often we liberals (and especially we “mavericks”) have emotional attachments to our chosen doctrines and jargon that are not justified by actual technical utility.  If we are students of history we may have observed how often old intellectual “wine” is simply repackaged in new bottles. How often does the re-bottling really accomplish anything, and how often does it cause unintended consequences such as the wine getting spilt or going sour? Occasionally the new package actually does something new like dispense single servings while keeping the rest fresh. But often it turns out the new bottle does little or nothing more than the old one did. Its the old “distinction without a difference”. (Or is it the other way around?)

In stark contrast, to actually improve the wine itself might require a long, laborious apprenticeship under a master vintner to acquire a thorough and pragmatic knowledge of soils, vines, cultivation practices, harvesting, pressing, blending, fermenting, racking, bottling, and cellaring. Within and between each subsystem there are many elemental, functional, or essential values and relations. The bottle is vital, but it is perhaps the most uncomplicated piece in all of this (less problematic than even the lowly cork), and for a wide range of bottle designs one kind may do just as well as another.

Another analogy that bears on the subject of “sustainable terminology” is a recycling and re-purposing analogy. We can conserve intellectual capital and labor by recycling our “bottles” rather than tossing the old, used terminology in the linguistic landfill and manufacturing new ones from scratch. Perhaps only a small number of cracked or chipped bottles need to be discarded and replaced with new ones. Our new, improved intellectual wine might just as well be re-packaged in the same old bottles as the the old wine once they have been well cleaned and inspected.

I may have belabored these analogies a bit but I have demonstrated how ideas about one thing, such as terminology, can be repackaged in other terminology as foreign to that subject as  enology, or wine making. It is far less a stretch to repackage some new socio-economic understanding or sensibility in old soci-economic terminology with a minimal number of pragmatic tweaks and hacks.

One example I have recently seen is “copy-far-left”. I’m not sure if this term is technically a neologism, a portmanteau, or something else, so I’m just going to call it a “hack” of the familiar word “copyright” and the familiar expression “far-left” which signifies an ultra-liberal or radical political orientation. (The expression comes from the seating arrangements in the French National Assembly during the French Revolution. The most radical members were seated on the far left of the chamber.) But this expression and others such as copyleft, copywrong, and copy-just-right are somewhat subjective and come with various degrees of emotional, philosophical, political, and historical baggage.

I prefer instead the conventional term “conditional copyright” which signifies a copyright that is a bundle of individual and severable rights– any, all, or none of which may be explicitly retained or waived by an author. An author is anyone who has created a work or “added value” to an existing work. It can be argued that all works are derivatives of previous work but that does no harm to the notion of an author as someone who has added value either to a particular work or to the general body of  creative human expression. The latter generalization is perfectly consistent with a conventional conditional copyright, which can serve the same purposes as any of the other copy-whatever hacks. The conditional copyright is simply any copyright that has a specification which explicitly spells out the rights that are (or are not) either retained by the copyright holder or granted to others with or without other special conditions. This has always been the nature of the conventional copyright. The familiar specification “all rights reserved” is simply a special case of the conditional copyright where the entire bundle of rights is retained unconditionally by the specified copyright holder. This is by no means (and never has been) the only legal species of the conventional copyright.

A similar conditionality has long been established in the common law of real and personal property through the same bundle of rights metaphor.

I challenge any of my liberal or radical friends to define a form of property ownership, non-ownership, anti-ownership, enclosure, non-enclosure, or commons that I cannot model with a conditional property or copyright specification without the need for any new terminology whatsoever, proving that new terminology is unnecessary for a full and fair technical or legal discourse. If new terminology is still desired it should be admitted that it serves a poetic, rhetorical, emotional, or ideological need rather than a technical or analytical one.

(Disclaimer:  the only case to which I will not try to apply conditional copyright principles is the proposition that there is no value created or added; or that any value which may be added does not require any formal or legal means of protection because  some other, informal means is sufficient. Also, I’m not a copyright attorney–these conditional copyright principles may or may not be compatible with current national statutes and international agreements.)

“The map is not the territory” (Alfred Korzybski)

Regardless of what terminology we use to discuss socio-economic theories such as “commons-based peer-production” or “capitalist commons“, we should remember that “the word is not the thing” (Alfred Korzybski). We are discussing actual social and economic relations in vivo and in situ.

In our lives we have one-to-one, one-to-many, many-to-one, and many-to many relations–relations between people and people, people and groups, people and objects, groups and objects, groups and the environment, etc. You can find many of the same, identical relations across many cultures, past and present, spoken of via many different metaphors and ritualized/institutionalized in many different ways.

Our choice of terminology and metaphor should be audience-appropriate, but analytically and technically we need to focus on functional relations, values and criteria. We can call something public, private, civic, social, or common. We can call something a group, a partnership, an association, a corporation, a collective, or a community. But people can differ wildly about what any of those terms mean. Any distinctions we attribute to those terms really arise from a more basic and fundamental class of issues: power, rank, consent, transparency, accountability, democracy, inclusion, opportunity, sustainability, reciprocity, symmetry, justice, fairness, dignity, & etc., etc., etc. Too often when we argue at the level of public vs private or common vs corporate we are arguing about the “bottles” and fail to ever connect with those underlying assumptions, values, and relations that really make the wine what it is.

At the academic level there are heroic efforts to put economics on an empirical, scientific footing. Those efforts are largely thwarted by the influence of money and power. But at the level of public discourse economics is almost entirely a vehicle for ideology (a disease of the mind).

Michel Bauwens is taking important strides towards an interdisciplinary, non-ideological, doctrine-neutral analysis of social, political, and economic relationships and I really dig it. That is the kind of framework  I want to build on. That is the kind of framework we can all build upon collectively and cooperatively no matter what our personal biases may be.

Poor Richard

Related PRA2010 Posts:

Disenclosure of the commons

Much has been written about the “enclosure of the commons.”

Enclosure (inclosure) is the process which was used to end some traditional rights, such as mowing meadows for hay, or grazing livestock on land which is owned by another person, or a group of people. In England and Wales the term is also used for the process that ended the ancient system of arable farming in open fields. Under enclosure, such land is fenced (enclosed) and deeded or entitled to one or more owners. By the 20th century, unenclosed commons had become largely restricted to rough pasture in mountainous areas and in relatively small parts of the lowlands.

Marxist and neo-Marxist historians argue that rich landowners used their control of state processes to appropriate public land for their private benefit. This created a landless working class that provided the labour required in the new industries developing in the north of England. For example: “In agriculture the years between 1760 and 1820 are the years of wholesale enclosure in which, in village after village, common rights are lost”.[1] “Enclosure (when all the sophistications are allowed for) was a plain enough case of class robbery. (Wikipedia)

Enclosure has become a general metaphor for the upwards migration of wealth from the general population to the privileged few, i.e. the increasing concentration of wealth in the economy. While enclosure worked for a while to the benefit of a middle class, increasing enclosure of more and more of the commons by those at the very top of the “food chain” threatens to return the modern middle class to the status of medieval serfdom.

This leads some to question the social utility of the current legal framework of private property.

However, I find a great deal of wisdom about the balance of public and private interests in the age-old common law. Unfortunately, modern statutory law has departed ever farther from common law principles of equity and has grown in the direction of monarchical “divine right” and/or “manifest destiny” -ish rationales in modern disguise. As we invent “new” forms of property and revise old ones, as I think we must, I hope we will give due consideration to common law traditions which in general are very egalitarian. Unfortunately, few people born in the past 100 years have any idea what “common law” is unless they have been through law school; and even then they most likely view it as a quaint curiosity. In the Robin Hood story, Robin was upholding common-law rights to the commons against the corrupt and degenerate monarchy.

The Homestead Act–enclosure for the people

The stamp that used one of Fred Hultstrand's p...

A form of enclosure of open, public land that worked to the benefit of the common man is seen in the US Homestead Acts.

The Homestead Act is one of several United States federal laws that gave an applicant freehold title to up to 160 acres (1/4 section, 65 hectares) of undeveloped federal land. The law required three steps: file an application, improve the land, and file for deed of title. Anyone who had never taken up arms against the U.S. government, including freed slaves, could file an application and evidence of improvements to a federal land office. The occupant also had to be 21 or older and had to live on the land for five years.

The original Homestead Act was signed into law by President Abraham Lincoln on May 20, 1862. Because much of the prime low-lying alluvial land along rivers had been homesteaded by the turn of the twentieth century, a major update called the Enlarged Homestead Act was passed in 1909. It targeted land suitable for dryland farming, increasing the number of acres to 320. In 1916, the Stock-Raising Homestead Act targeted settlers seeking 640 acres (260 ha) of public land for ranching purposes.

Eventually 1.6 million homesteads were granted and 270,000,000 acres (420,000 sq mi) of federal land were privatized between 1862 and 1934, a total of 10% of all lands in the United States. Homesteading was discontinued in 1976, except in Alaska, where it continued until 1986. (Wikipedia)

Ownership vesting by productive use and improvement

While enclosure is a bad word in progressive economics, The Homestead Act reflected two ancient principles of common law that may be important for us to understand and preserve in defense of the commons: adverse possession and the doctrine of laches.

A  person invoking the doctrine of laches is asserting that “an opposing party” has “slept on its rights,” and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim’s being barred by laches.” (Wikipedia)

The doctrine of laches is a sort of a generic, common law “statute of limitations” on private ownership.  Adverse possession involves the doctrine of laches in disputes over claims to property.

“By adverse possession, title to another’s real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner‘s rights for a specified period. For example, “squatter’s rights” are a specific form of adverse possession.” (Wikipedia)

By stipulating that prospective homesteaders had to occupy the land for 5 years and make improvements to it in order to acquire private title, the Homestead Act was, in a sense, a way of encouraging citizens to assert the ancient tradition of “squatters rights” to the property.

I’m not enough of a historian to trace the origins of squatter’s rights, but I can understand and intuitively favor the principles of justice and equity which they represent.

The principles of homesteading and squatter’s rights embody the most basic concept of property and ownership, which can be summarized by the adage “possession is nine-tenths of the law,” [sic] meaning the person who uses the property effectively owns it. Likewise, the adage, “use it or lose it,” applies. The principles of homesteading and squatter’s rights predate formal property laws; to a large degree, modern property law formalizes and expands these simple ideas.

Squatter’s rights embodies the idea that if one property owner neglects property and fails to use it, and a second person starts to tend and use the property, then after a certain period the first person’s claim to the property is lost and ownership transfers to the second person, who is actually using the property.

The essential ideas behind the principles of homesteading and squatter’s rights hold generally for any type of item or property of which ownership can be asserted by simple use or possession. In modern law, homesteading and the right of adverse possession refer exclusively to real property. In the realm of personal property, the same impulse is summarized by the adage “finders/keepers” and is formalized by laws and conventions concerning abandoned property.

Copyrights

Some legal scholars have proposed to extend the concept of adverse possession to intellectual property law, in particular to reconcile intellectual property and antitrust law[17] or to unify copyright law and property law.[18] (Wikipedia)

Instead of simple possession being nine-tenths (originally “nine points”) of the law, a better formulation would be that productive use or improvement is nine points of the law. This is actually more consistent with the common-law origins of squatter’s rights. The intuitive impulses behind the common laws of salvage and claiming abandoned property also come from the same sentiments: property should not go to rack and ruin from disuse while someone in need is willing to claim it and use it productively. These common law sentiments and traditions are the true origins of  modern property law, notwithstanding the success of special interests at gradually twisting and perverting those sentiments into their own opposites in today’s statutory law.

The Modern, Fee-simple Absolute Title

This is what the rich have really been angling for ever since the early days of enclosure. The dominant modern attitude towards private property is no longer grounded in common law tradition, but in a relatively modern theory of “natural law” and “natural rights”.  This theory defends a form of private property in which the rights of an owner are absolute and  supreme–not subject to any test of productive use or improvement nor to any competing interest of society. Those who defend this theory like to imply that it is a conservative, traditional institution. It is anything but. Its only claim to antiquity is bedded in the “divine right of kings,” but the common law of property must be said to have earlier origins and distinctly contrary principles.

As early as Aristotle, philosophers argued for the social benefit of private property, but in the interest of preserving the commons, not eliminating it.

“[T]hat which is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual.” (Aristotle, Politics)

If Aristotle’s concern was for the common good, his argument can not be used in support of a theory of private property that scoffs at all social values. Nothing in Aristotle’s view of private property could be construed to hold absolute private “title” (an expression related to royalty) above all competing social interests.

The arguments I have seen  in support of absolute private property ownership fall into two categories: appeals to natural law and appeals to utility.

I. The appeal to “natural law” and “natural rights“. Libertarians and some conservatives view private property rights as the foundation from which all other natural rights extend. There are several problems with this:

A. Despite the pre-scientific musings of many erudite (if old-fashioned) philosophers about the “state of nature”, in the state of nature there is but one law, the law of the jungle, and but one right: “might makes right” (Vae victis). Any other right can only be the result of imposing positive (artificial) law. The only other laws that exist in nature are the “law” of unintended consequences and the natural laws such as the law of gravity, the laws of thermodynamics, etc.

B. In nature, possession is 100% of the law, not just nine points. The only private property is that which one can take and hold by force. If you can take it from someone else it becomes yours. If they can take it back or induce you to give it back it is theirs again. Natural social behavior might seem to introduce more laws, such as in the “law of the pack” and “pecking order”, but in nature these are simply either:

1) proxies for force which must be regularly backed up by force–there is no court of law, or

2) they are the product of genetically encoded, involuntary, instinctive responses to chemical or physical signals as in the case of social insects and bacteria.

C. Without the rule of law, predictably and impartially managed by society, property is nothing but a temporary possession maintained by private force. If the existence and persistence of private property depends upon a public legal infrastructure, then private property as we know it is a public creation. The public, which creates the “privateness” of the property and preserves it by force of law, always has a proprietary interest in any such property–by the principle of natural law! (i.e. in any contest between private force and state force, the state wins.)

D. Many of the philosophers who have argued for “natural law” have conflated it with divine law, nature simply being a proxy for the divine creator. This attitude has passed by inheritance to modern-day conservatives and libertarians. Property, once the divine right of kings, is now the divine right and manifest destiny of whoever has the latest legal claim. In this tradition, the owner has an absolute (thus divine) right or title to his property which supersedes all other claims. The public interest, the interests of future generations, or the survival of the planet be damned. There are two problems with this argument:

1) This is thinly veiled religiosity which, in the absence or indifference of the necessary deity, amounts to little more than anarchy.

2) This “absolute” natural right can be magically dissolved by signing a piece of paper, just as any other so-called natural right of man can be signed away or even automatically abdicated simply by accepting casual employment. This reveals that the “natural right”, just like the natural man (the supposed “king of his castle”), is actually nothing more in this doctrine than a right of “chattel” (from the word cattle–-in law, any movable property; also used to refer to slaves, wives, and minor children).

II. The appeal to utility

A. Proponents of the absolute right to private property claim that it promotes the common good in the same way that greed supposedly promotes the common good in the “free market”. They rely on an  “invisible hand” to make everything work out for the best even if each person acts purely out of greed, ambition, paranoia, malice, delusion, or any other form of vice, depravity, or pathology.

B. To be fair, they assert that an owner will always act in his own rational best interest and that the utility of absolute private ownership follows from this. They assert that an owner will rarely fail to act in his own rational self-interest. However, only if every property owner acted in his fully enlightened self-interest could the appeal to general utility succeed. That test is clearly unmet. Most owners are not only unenlightened they are predictably irrational. The “rational agent” theory has been fully discredited in psychology, sociology, neuroscience, and even in economics (which tends to fall somewhat behind the curve in theories of human behavior).

C. Science has debunked the invisible hand  for failing to deal with irrational agents, externalities, and information asymmetry.

D. Without an invisible hand, the only interested party left around to represent the common good, the public interest, future generations, and the planet, and “to promote the general welfare” (as per the Preamble to the US Constitution), is (no big surprise to progressives) the public. The public interest is a proprietary interest in a portion of the bundle of rights which make up ownership. The public owns this proprietary interest by virtue (as stated before) of natural law!

E. For the appeal to utility to succeed, owners must put their property to its “highest and best use”. This condition is clearly not satisfied. The proponents of absolute private property rights often argue that it is government interference, (zoning, environmental regulation, nuisance laws, etc.), which prevents private owners from achieving the highest and best use of their property, and that such interference is a “taking” of their property. There is law on both sides of this argument and owners are free to file their claims in the proper court of jurisdiction– the venue which they argue is the only proper source of remedy.

Common law and natural law agree

On one hand is the aristocratic “absolute title” descending from the divine right of kings and on the other hand is the “bundle of rights” established by an unbroken, progressive line of common law, originating in pre-history, and backed up by natural law (the might of the state). It seems natural law is no longer on the side of royalty, nowadays, and common law never was.

In common law tradition the social contract recognizes a whole catalog of individual and severable rights to property. For any given property, the various rights may be divided and held by any number of different people, groups, or agencies. As I said above, the public always retains some of those rights which can be thought of as implicit public easements, servitudes, and restrictions.

By vigorously reasserting and defending the residual public interest in all private property, an interest that is firmly based in common law (not to mention natural law), we can roll back some of the private enclosure of the commons.

The Bundle of Rights

Many of the categories above include additional rights or attributes not listed. (Click image for article on “Bundle of rights”)

Disenclosing the Commons with Tax Policy

Tax policy is a way to return underutilized private property to the commons. A highly progressive property tax, income tax, and inheritance tax can all be used to insure that excess accumulations of property, and property that is not being used productively, is returned to the commons. If the tax rates are too low they will not serve this function, but if the rates are high enough at the upper tiers they will force excess accumulations of property and underutilized property back into the commons, partly via the marketplace (by influencing fair market values) and partly via the tax revenues flowing back into the public treasury.

Taxes and easments

One way that property can be returned to the commons without it being converted to tax revenues or sold on the market is through public easements. One example of this is a conservation easement.

Concerned with the loss of farmland (especially small family-held farms) to development pressures, I proposed and lobbied for the  the Tennessee Conservation Easement Act of 1981. The timing was right and the TN Department of Conservation provided resources to get the bill written. It passed quickly. The act provided property tax relief on farmland in exchange for a transfer of development rights from the farmer to the state. The conservation easement transferred to the state most of the rights in the farmland that were not needed by the farmer in order to farm the land–mineral rights, subdivision rights, commercial development rights, etc.– not to be exploited by the state but simply to be held in a public trust. As long as the easement remained in force, the property taxes collected by the state would be greatly decreased. A lot of farmers were happy about that and the program was a big success.

Any of the individual property rights that make up the total bundle of rights can be transferred back into the public domain in return for tax relief, without handicapping the private owner from using the property in many productive and constructive ways. If the concept of public easements and restrictions combined with tax relief were used together with a highly progressive property tax and inheritance tax rate, the enclosure of the commons might be dramatically reversed.

Parenthetically, I should acknowledge the oft-heard alarm that conservatives raise about the confiscatory and antisocial effect of taxes. We need to thank our conservative and libertarian brothers and sisters for their vigilance and their concern for the little people. We do need to insure that people who have just enough to live in comfort and dignity (if they have that much) pay no property tax, income tax, or inheritance tax at all.

Conditional property, equity, and information asymmetry

As discussed above, the ownership of private property is never absolute, but always conditional. Even in the case of an “absolute title” to real property, there are implicit social conditions that can be thought of as implied easements, servitudes, and restrictions. The same conditionality also applies to personal property and intellectual property.

One of the main devices that has been used by special interests to enclose the commons (and rip people off in general) is information asymmetry. Restricting access to information has many parallels with fencing in, or enclosing, property. Classical free-market economics assumes that all parties to a transaction have full knowledge of all the costs and benefits pertaining to a transaction and can make informed judgments about the impacts of the transaction on their own interests. Common sense and personal experience tells us that is seldom the case. In the real world one party usually has more information about the conditions and consequences of a transaction than the other. Information asymmetry and externalities have actually become the accepted basis for most cases of making “profits.” In all such cases for-profit transactions can and should be distinguished from fair trades.

Equity (in law) is an ancient common law principle that fairness supersedes the letter of the law. Equity (in economics) is similarly a principle of fairness, in this case fairness in the distribution of economic costs and benefits. Equity (in finance) is also a term used to refer to an ownership interest, as in home equity,  especially in cases where ownership interests are shared or distributed between several parties. Fairness is also implicit in this use of the term equity.

Information asymmetry can be thought of as a way to enclose and/or externalize various parties’ legitimate equity, both in the sense of equity as fairness and the sense of equity as one’s proper share of some economic interest in, or ownership of, a thing. A good example is the personal information that we share with service providers on the internet. Equity is each party’s fair share of ownership, and information asymmetry and other forms of covert enclosure and externalization should be understood as factors that create an inequitable distribution of costs and benefits. If Google and FaceBook are going to make money on the information they collect from me, where is my fair share? I’m not anti-business, just anti-ripoff. Fraud, unfair advantage, covert enclosure, and disinformation are violations of common law principles of equity. So where are the Equity Police?

Generalization

The concepts of property and ownership can have a great deal of social utility. I don’t want anyone coming into my house and just walking off with whatever they please. The problem with current definitions of property is that they are insufficiently conditional and explicit. They don’t explicitly and transparently incorporate the principles of equity, the various interests of all parties, and the public interest in portions of the bundle of rights. Enclosure and ownership don’t have to be bad words if the rules and conditions of enclosure and ownership (and the various present and future interests of all parties) are well-balanced, open, explicit, and transparent. (Some of those terms may be redundant, but I feel the emphasis can’t be over-emphasized.)

Poor Richard

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