If the Commons is a Form of Property, Does that Make it a Commodity?


May 7, 2007


Browse in Commons

We can become attached to the object of our loathing.  Look at Bush and Iraq, or Ann Coulter and “liberals.”  What would the gracious lady do without the nemesis that shapes her psyche?  Would she have anything to say? So too, in a slightly different way, with Marxists and property. They can be so opposed to it that it sticks to them like glue.

This came up at the commons conference in Berkeley I wrote about last time.  In my talk, I used the terms “ownership” and “property” in connection with the commons, and this caused great displeasure for another person on the panel.  I was a “commodifier” he said.  A commons is the opposite of property, not a version of it.  I was told afterwards that this gentleman is a Marxist.  But in fairness, others can feel uneasy in a less rigorously dialectical way.  To say that a commons is a form of property can make it seem a carrier of the disease it is supposed to resist.

In reality however the opposite is the case.  As Carol Rose, the legal scholar, has suggested, a commons looks like property on the outside so it can achieve different results within. It uses a kind of legal aikido to turn property to unproperty-like ends.

Property is not a thing, nor the metaphysical absolute that inhabits the ideological mind.  Property is a construct, a bundle of rights that changes with the context. A first year law student learns this early on.   Partnership rights are different from shareholder rights.  Rights in a cooperative are different from those in a condominium. Property in a marriage is different from that in a mutual fund.  They all are property.  But they are encoded differently to achieve different ends.

So with common property. Historically, commoners did have rights that were much like property rights, even if some theoreticians have been reluctant to call them such. Commoners tilled common fields by right, not at the sufferance of a private owner. No one could keep them out of woods that were traditionally common.  In England, commoners would “perambulate” their parish each year to make sure that no uppity lords had tried to fence off for themselves what traditionally belonged in some sense to all.

But these common rights were vulnerable because not encoded in law.  They existed in custom and usage rather than in deeds of ownership.  When parliament set out to enclose the commons, and redistribute it to private owners, no formal rights stood in its way.

This has been the story of the commons ever since. Whether it is the atmosphere and oceans, the public domain of knowledge, the cognitive environment of our daily lives, it all has been vulnerable to invasion and expropriation because there is no protective legal shell. When the government takes property it must pay compensation; and it can do so only under certain circumstances to begin with.  When a person or corporation takes it is called theft.

But when a commons is taken – as when corporations enclose the research in universities, or fill the air with noise —  it generally is called “growth” and economists applaud.  Not only is the commons unprotected; its services and productivity go entirely unreckoned in the accounting of economic growth and gain.

The question is, what kind of protective shell is most apt for a commons?  Obviously there’s a need for regulations, such as those that limit noise and dumping gunk into the air.  Sometimes public ownership can work, as with libraries and the national parks.  But both are vulnerable to the political regime in power; look at Bush’s assault on the national forests, and his unceasing efforts to start oil drilling in the Alaska National Wildlife Refuge.

Did I say public ownership?  Oh dear.  Isn’t that a form of …. property?

The property question is hard to get around.  So long as we inhabit three-dimensional space, there must be some way of defining our relation to objects in that space.  If not property – or the equivalent by another name – then what? (And not in a hypothetically perfect world, but this one.)  Call it property or something else, there is going to be something that defines who has say regarding the thing and to what ends.  The question then becomes the nature of the property, and the ends it is encoded to serve.

To give common property a formal legal status is to give it a protective outer shell of law. Corporations and governments then cannot take it at their whim. But inside this commons can operate as the owners choose.  A worker-owned cooperative is a corporation on the outside.  This enables it to interact with the outside world. But inside it operates on principles very different from those of a for-profit corporation.

So too with a commons.  Where corporate property is encoded to yield the greatest possible financial gain, common property can be encoded for the greatest benefit to future generations. The corporation wants access to water to turn it into money.  It doesn’t care if the aquifer gets drained so long as the math works out.  The commons by contrast is managed for long-term benefit, so that the asset is not diminished.

In other words, common property can be a kind of antimatter to the prevailing system, and switch the assumptions into reverse.  It does so not by a fiat of government, but because the reversal becomes embedded into the property itself.

My colleague Peter Barnes has proposed that trusts could be an apt way to manage common assets.  People establish trusts for the benefit of future generations.  In the case of family trusts that’s the children, or the children of the children.  The managers have a fiduciary duty to guard the corpus — as it’s called — and keep it undiminished.  The aim is stability for the long term, not short term gain.

Family trusts are not the only kind.  The same legal machinery has been used for preservation on a larger scale. Trusts exist for forests, lakes, bird sanctuaries, many things.  Where I live, the Marin Agricultural Land Trust (MALT) buys development rights from local ranchers.  They keep the land but the trust gets the right to develop it, which ensures that the land will stay in an unspoiled state.  Those development rights still are property.  But they now are owned by an entity – a trust – that exists to make sure that no one ever uses them.

Trusts wouldn’t be the best solution for every type of commons.  It is hard to imagine a trust to own the quiet for example, or the English language, though that does not mean it couldn’t happen.  If corporations can privatize the language – McDonald’s claims ownership of over 120 common English words and phrases, including Always Quality and Always Fun – then why couldn’t an entity of a different kind common-ize them so they couldn’t be so owned?

(By the way, is anyone going to argue that McDonalds will improve the language by claiming ownership of it?  And just what creativity would be encouraged or rewarded by such a claim?  McDonalds didn’t invent those words.  It just expropriated them from the language commons and stuck a trademark on them.)

The best part is, consider what happens when a commons becomes a matter of property right.  If the government permits or enables a McDonalds to expropriate the language commons the result then is a taking.  So too with the invasion of noise into the soundscape, the destruction of species, on and on.  The act of doing these moreover becomes a theft.

Property becomes a way to neutralize and counterbalance the system that spawned it.
Property may not be theft by definition.  But when the property in question is common, then the taking of it for private gain, is.  For our dialectician friends that might not be a whole loaf.  But it’s more than half of one, and I submit they could do worse.