7. Rethinking Property
To visit downtown Florence these days is to walk amidst dozens of lovingly restored fourteenth to eighteenth-century buildings and public squares, the Galleria dell’Accademia containing Michelangelo’s statue of David, the priceless art of the Uffizi Museum, overpriced cafés and gaudy souvenir shops pandering to tourists. But look more closely, right behind the apse of the Carmine church, on the other side of the Arno River, where the Renaissance began, and you will discover the last part of the old town that has not yet been turned into a Disneyland of the Renaissance.
This neighborhood, the San Frediano parish, is only a few steps away from the world-famous Ponte Vecchio. Even though it is within an area of gentrification, a startled visitor who stumbles across the Nidiaci Community Garden will encounter, especially in the afternoons, a leafy oasis filled with energetic, noisy children and their parents. Rambunctious six-year-olds race around the grounds and play on swings while their older brothers take lessons with the city’s only self-managed soccer school, “The Lebowskis.” On certain days, a Portuguese musician who lives nearby teaches violin to children. On other days, a British writer teaches English in a studio space on the grounds. Families organize free swaps of outgrown children’s clothes. Some residents tend to a small vegetable garden. Others have organized a project to monitor city pollution and traffic.
This space of togetherness, tucked away in a corner of the central city, is stewarded as a commons. Its use “depends on what people decide to put into it,” as Miguel Martinez, an amateur historian of the Nidiaci garden put it. “It’s hard to say what we are doing there, because everything depends on what new arrivals want to create.” But in a neighborhood in which about forty percent of the children come from families born abroad, simply having a space to common is no small blessing.
How is it possible, you might ask, that this beautiful spot in the center of Florence — easily worth more than several million dollars on the real estate market — has not yet been sold to the highest bidder and turned into condos? How is it that a group of neighbors actually stewards this space? When we went looking for answers to these questions, we learned a great deal about how property law can be used for more than the buying and selling of real estate; it can be used to help people lead a more satisfying community life.
The land now occupied by the Nidiaci Community Garden has a long and complicated history of ownership. It was originally donated to the Carmelite church by a widow in 1273, nationalized by the Napoleonic mayor of Florence in the nineteenth century, and later sold to a private owner. What started out as a private donation to the church became public property before becoming private property again. At the beginning of the twentieth century, the land was again sold to two individuals, one of whom rented it to the municipality of Florence for use as an elementary school.
Then, something critical happened. Although the details are murky, the owner of the land in 1920, the head of the American Red Cross mission in Italy, Edward Otis Bartlett, donated it to a trust charged with using the land “for popular education, with special attention to children.” Ownership of the property was now tied to a social mission, providing a play space for children. In 1954, after trusteeship of the land had passed to another generation, most of the land was donated to the municipality of Florence, becoming public property once again. But because legal documents declaring the intended social uses for the land were lost or never kept in the first place — and perhaps because the later generations of trustees had commercial intentions for the land — city authorities had allowed a building and part of the garden to fall into the hands of real estate investors, who then tried to build luxury apartments and a parking lot on the site.
Thanks to some dogged legal sleuthing by neighborhood residents in the 1990s, a document from the 1920s was found showing that the land was supposed to be managed for the benefit of children. Families of the San Frediano district mounted public protests in 2011
to try to restore the trust but failed. However, the city — eager to save money and stung by neighborhood protests — agreed to let residents manage the garden themselves, at their own risk, expense, and responsibility. A neighborhood association was formed to sign a legal convention with the city to keep the space available to people, without cost to the city administration. It resembles similar agreements for other neighborhood gardens in Florence in which residents were authorized to act as custodians of the gardens. But the city government retained the right to revoke access at any moment through an unappealable decision. Commoning at Nidiaci Gardens can continue, but it remains legally vulnerable — the fate of countless commons around the world.
* * *
There are thousands of such stories of people trying to find legal protection for their commoning. The stories are different, but tend to be similar in at least two respects. First, legal forms matter because they privilege certain uses of the things around us and certain social relations. And second, the social reality of commoning must precede any property forms. The recovery of the Nidiaci Garden happened in the first place only because neighborhood residents organized to press for appropriate legal and political solutions. Legal forms matter because, as we see in the Nidiaci Gardens history, a trust can be a better legal vehicle than state property for advancing the goals of the donor and neighborhood residents. Even though the Nidiaci commoners prevailed in one sense (commoning is now possible there), they came to understand that there was really no suitable form of property law to protect the social relations they wish to cultivate.
This is usually the case. Commoners routinely must rely on “alien” legal forms to protect their shared wealth and community culture. For example, software programmers who wanted to assure that their code could be shared and modified by anyone — free and open source software — discovered that they had to engineer a “legal hack” on copyright law, which is normally used to turn creative works into private property. (More on this on pp. 258–260.) When American entrepreneur Douglas Tompkins wanted to preserve more than two million acres of wilderness in Chile and Argentina, there was no legal instrument to manage it as a commons. He had to buy the land as private property and donate it to a private land trust, which later gave the land to the governments of those two nations to administer as public property. Sometimes a group of farmers may make a local diner their favorite hangout, or bikers and football fans in a given city will make a certain bar their favored place. But the owners of such private commercial establishments may have their own ideas about to manage these de facto social commons, perhaps leading to tensions between the property owners and the users.
As these examples suggest, property law and commoning are not generally made for each other. That’s more or less the problem that Nidiaci commoners faced: they were not able to acquire clear title to the land or secure a legal vehicle that recognized their vernacular practices. But they got lucky — they were able to work out a deal that lets them use and peer-govern the space for children and families. They secured the municipal government’s legal permission, and for the purposes of commoning, that was enough, at least in the short term. But it is certainly not a reliable legal solution over the long term. Faced with existing frameworks of property law, commoners who wish to legalize their Peer Governance may have little choice but to attempt to creatively modify the law or turn to political pressure, social organizing, or civil disobedience.1
This should not be surprising. Guardians of the dominant economic and social order naturally see property law as an instrument to advance their interests. When early capitalism enclosed the commons and overrode customary practices, writes historian E.P. Thompson, the “political economy aided and abetted the law.”2 Property law was an essential tool of dispossession. In our time, a similar dynamic is at work, as we see in copyright laws that lock research away from the scholars who produced it, patent laws that prohibit farmers from sharing seeds, and large corporations that ravage local landscapes to extract fossil fuels. As the great political scientist and philosopher C.B. Macpherson once wrote:
For when the liberal property right is written into law as an individual right to the exclusive use and disposal of parcels of the resources provided by nature and of parcels of capital created by past work on them, and when it is combined with the liberal system of market incentives and the rights of free contract, it leads to and supports a concentration of ownership and a system of power relations […] which negates the ethical goal of free and independent individual development.”3 (emphasis in original)
In short, the combination of property law with capitalist markets and state enforcement of contracts has created a powerful narrative of freedom — but a freedom that is mostly reserved for owners. If we really want to be free, and we wish everyone to enjoy that possibility, we need to rethink property.
This is a very large and complicated topic, of course. It is not easy to imagine how we might subordinate property rights to the needs of our society and ecosystems, reversing the power of tradeable property to dictate terms for nearly everything. Chapters Seven and Eight are devoted to this ambitious challenge. We start by rethinking some fundamental dimensions of property that have long been neglected or ignored, but which have great importance to commoning. Then, in Chapter Eight, we explore the possibilities and ways of relationalizing property. The point is not to abandon property law as such, but to situate the things we use (sometimes known to the law as “property”) in a rich, diverse, and meaning-making web of relationships — social, economic, ecological, temporal.4 The legal concepts of possession, custom, and inalienability are important in helping us rethink the meaning of property.
In rethinking property, it is vital that we understand a basic idea —
property is relational and not just an object. This insight opens the door to a richer, more realistic discussion of how property actually affects us and the world. We also need to recognize that familiar forms of collective property — trusts, coops, partnerships, nonprofits — can achieve a great deal, but they ultimately do not overcome the structural biases embedded in property itself: the right to exclude, the over-reliance on markets, the habit of equating value with price, and the power of owners to dictate how nature and people will be treated.5
In this chapter, we will also clarify why the notion of possession is so important to the commons. In an existential sense, we cannot not possess. But something interesting happens as we possess. As firsthand users of water, land, wood, soil, landscapes, seeds, and much more, we develop knowledge and affection, a sense of responsibility, and situated knowledge about the resource — enough to convert it into care-wealth. Such attitudes are less likely to develop among owners primarily focused on the exchange value of their property.
By focusing on possession, we can begin to think about ways of having that may not be officially sanctioned by legality (as at Nidiaci Garden), but which are entirely functional and effective. Moreover, we can begin to think about how state law might recognize or facilitate these other modes of possessing, collaborating, sharing, and commoning. This mode of having and using is what we call Relationalized Property — a topic we will develop in Chapter Eight.
Finally, we explore why inalienability is critical to any vision of stewardship through commoning. Inalienability is the idea that it is ethically offensive to appropriate and sell certain cherished things. As creatures of the market, we moderns generally dismiss this idea as archaic. But the legal history of inalienability, especially during the Roman Empire, shows how a prohibition on alienation enables all sorts of vital relationships to flourish precisely because limits are set on market activity.
Me, My Freedom, and My Property
It’s no exaggeration to say that our ideas about property express a vision of personhood — one that radiates into the deepest corners of society, affecting our social identities and relationships, commercial dealings, institutional behavior, and treatment of nature. “The premise underlying the personhood perspective,” writes property law scholar Margaret Jane Radin, “is that to achieve proper self-development — to be a person — an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights.”6 But property is not just a reflection of our sense of what a human being is; it is a legal enactment of our social relations. A vast market apparatus ratifies and reinforces a culture based on property norms every day. Thus the juridical way that we think about property largely determines the actual social relations that we can imagine and develop. Of course, this happens in other realms of life, too: how we think about “the economy” also determines how we relate to each other.
For the past 250 years, modern, liberal notions of property have been the defining feature of our general archetype of personhood. John Locke, Thomas Hobbes, and the other early theorists of the modern state and liberal property rights started with the assumption that the individual matters most, and that everyone is “proprietor of his person and capacities.”7 Most of Western culture has embraced the idea that freedom is “freedom from dependence on the wills of others, … and freedom is a function of possession. Society becomes a lot of free and equal individuals related to each other as proprietors of their own capacities and of what they have acquired by their exercise. Society consists of exchange between proprietors.”8
This modern catechism of freedom anchors the cherished cultural ideal of individual autonomy and individual property. The human being is conceived as an isolated-I with absolute freedom, expressed through ownership. It is a world in which we stand as selves ultimately disconnected from everything else — community, tradition, ethnicity, religion, nature. In such a world, property ownership constitutes an institutional bulwark for the freedom of the utterly autonomous individual. These three ideas — the individual, property rights, and freedom — have become the pillars of free-market ideology and Western civilization. The linkage among the three defines a world in which individual property rights are seen as determining people’s “actual freedom and actual prospect of realizing their full potentialities.”9 Once this linkage was established as the dominant political theory — modern liberalism — it was read back into the nature of the individual as if it had always been there and was not culturally created. It was presented as a self-evident, universal fact.
By sanctifying this vision of humanity, modern property law functions as a massive system of social engineering. It elevates instrumental, commercial uses of nature. It encourages the treatment of human beings as commodified labor and the internalization of such norms as people learn to sell themselves on the labor market. It creates artificial scarcities through copyright and patent law to help create markets that wouldn’t otherwise exist. Property law as it is today systemically privileges the individual versus the collective, self-serving control over relationships, and exchange value over intrinsic or use value. One might say that the very premises of property law dictate these outcomes. This makes it difficult to entertain legal schemes that might reflect a broader array of human values, practices, and social organization.
How then might we inaugurate an OntoShift (as discussed in Chapter Two) and new approaches toward value to achieve a more life-
nurturing conceptualization of property?
Property is Relational
At the very moment we recognize our condition to be that of human beings in relatedness, it becomes clear that the default premise of property law — that everyone is absolutely autonomous and separate from each other and the Earth — is highly problematic if not silly. The three pillars of modern liberal society — 1) the lone individual and 2) property rights as the basis for 3) “contract freedom” — represent a fairly crude, narrow vision of human fulfillment and social order.
If we wish to recognize our actual interconnectedness and take it seriously, we must start to imagine new types of institutional and property arrangements that recognize this fact. If we acknowledge that the libertarian individual as a cultural ideal is a fantasy, then we need to begin to rethink the very concepts of “freedom” and “property” as now construed. We must reassess the idea that boundless individualism is truly liberating, that property rights are the best guarantor of freedom and social well-being, and that we can continue to pursue market growth in a world of ecological limits.
The prejudices in modern thinking about property go back a long way. In his famous 1753 treatise on property, the English jurist William Blackstone wrote, “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property, that 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.”10 Blackstone’s notion of an individual as an obsessive, self-regarding owner is something of a caricature, of course. Moreover, he talks as if property were only an object — an idea that has been commonplace in Euro-American contexts. The only relevant relationship raised by property seems to be between a person and a thing, as in, “This bicycle belongs to me. I am its owner.” Because property law privileges the idea of the lone, disconnected individual and property as an object, it has trouble grappling with the relationships that lie at the heart of commoning and, indeed, life itself.
Blackstone’s quote is interesting for yet another reason. He bluntly notes that one is either an owner or a non-owner, which means that property rights create a social boundary in the first place. The statement, “This bicycle is mine. I am its owner,” is more accurately understood as, “This bicycle is mine, therefore I can decide if you can use it or not.” The legal connection between me and the bicycle privileges my entitlements and denies yours. In other words, the legal relationship (property ownership) profoundly shapes and determines social relationships. Property law determines who may decide how the bicycle may be used — if it can be sold, destroyed, altered, co-used, or parked in a garage, and under what terms. Legal ownership determines everything, but particularly, the right to exclude. The way we construct and apply property rights actually reveals much more about us and our relationships to others than about our relationships to the actual thing owned.
There are, of course, some significant exceptions to the unlimited freedom of “sole and despotic” ownership. Owners of land, for example, are subject to zoning laws that restrict how land may be used. Nuisance laws prevent owners from making too much noise or burning leaves. Building codes protect health and safety. And so on. Despite such limitations, the presumption that property rights confer absolute dominion remains the default norm. This idea contains a built-in conundrum, however. In real life, everyone’s property rights cannot be absolute, so there are inevitable conflicts about the scope of one’s rights. These conflicts cannot be resolved through the law alone, but only through politics. What is allowed and forbidden to owners and everyone else is essentially a “policy determination, not a matter of neutral deductive reasoning” by courts, notes one legal commenator.11 Law reflects the political and economic order.
The Federal Republic of Germany’s Constitution, known as Grundgesetz, actually has a provision (in paragraph 14.2) that stipulates, “Property entails obligations. Its use shall also serve the public good.”12 The philosopher who provided the main arguments for contemporary property law, John Locke, gives passing recognition to the social implications of individual ownership by stipulating that a property right is legitimate “only if there is enough, and as good, left in common for others.”13 This so-called “Lockean proviso” is an attempt to acknowledge that one person’s property rights may directly affect other people’s lives, but in practice the proviso has been largely ignored.14
As this legal history suggests, highlighting the general idea that property is relational is not that remarkable. It quickly becomes controversial, however, when it comes time to hammer out specific entitlements, their scope and term, and limitations. Then we get to the heart of the matter. We see that property law is not about making a general statement about normative relationships, it is all about enacting those relationships with the enforcement powers of the nation-state. We need to be clear that property law has no content in itself; it is the outcome of politics — a struggle to determine what sort of enforceable meanings “property” will have in law and what its legal disposition will be. In this way law both reflects and profoundly shapes and determines social relationships. Something significant happens when states affirm certain types of social relationships through such property laws as the right to own land, music, water, or images: It becomes difficult to question the moral justifications for ownership. After all, once a sovereign state throws its authority behind certain classes of property, it in effect forecloses any further discussion about the legitimacy of ownership.
This often leads to a disturbing gap between legality and legitimacy, a distinction used by French legal scholar Étienne Le Roy.15 Political and corporate elites embrace formal law, bureaucratic rules, jurisprudence — “legality” — while the experiences and vernacular norms and practices of ordinary people — “legitimacy” — go ignored. Farmers around the world consider it entirely legitimate to save and share seeds, and scholars and internet users generally want to share their knowledge with each other. However, to the guardians of legality, such activities are often regarded as criminal. Property rights must be defended. Legality is thus used to eclipse the Vernacular Law of the commons — the informal, unofficial norms, practices, and customs used by peer communities to manage their affairs.16 In this way, we can see how property is given a higher legal standing than possession, regardless of the legitimacy of the arguments for the latter. Because law has endorsed a certain social order of property through ordained state processes (legislatures, bureaucracies, courts), customary practice, tradition, and possession can be shunted aside as illegal, or at least suspect. Property ownership is lawful, but possession is not accorded the same level of protection.
Wesley N. Hohfeld was an early twentieth century law scholar who popularized the idea that each right conferred by property law corresponds to a “non-right” that afflicts others. Each time the law recognizes a right or a privilege for one person, it denies a corresponding right or privilege to somebody else. Any legal power for one is related to a legal disability imposed on others.17 Or as one property scholar put it: “Legal rights are not simply entitlements, but jural relations.”18 Because property is a complex set of legal relations that govern how people may interact “no person can enjoy complete freedom to use, possess, enjoy, or transfer assets regarded as theirs,” writes Gregory Alexander. And this means that “[s]ome degree of social interference with one person’s ownership interest not only does not negate ownership, it is unavoidable.”19 (emphasis in original)
This insight is more profound than it may seem. Property not only establishes a relationship between a bicycle owner and a bicycle, and between the bicycle owner and non-owners. It indirectly establishes a dense web of multiple relationships — with the people who mined the metal for the bicycle and produced the parts, with the manufacturer and retailer, with the person to whom you may have lent it, with people driving cars and bicycles on the road, and so on. An object designated as property is not just implicated in a complex web of social relations, but also in myriad other relationships such as with a local community, the ecosystem, nonhuman life, and future generations. Property law focuses on the rights of the owner and sometimes the direct effects on others; it is essentially a short-sighted, parochial viewpoint.
The serious limitations of property — the market individualism and societal order that it prioritizes — prompt us to ask: can we come up with different ways of having, that honor relationships of life outside of the market — ones that formal jural relations and property law don’t fully recognize?
This is a difficult challenge because the capitalist economy, expressing a certain configuration of social relationships (competition, exclusivity, etc.), has its own propulsive logic and power that commodifies nature, labor, and money. Property law aggressively tracks and reinforces this very logic, creating a self-reinforcing, self-enclosed cycle. Law both reflects and fortifies the political and economic order. It’s a vicious cycle that must somehow be broken and overcome.
Collective Property as a Counterpoint to
Could collective property serve as a vehicle for recognizing a larger set of relations? That is certainly what a broad spectrum of political progressives have sought to do through cooperatives, land trusts, public trusts, foundations, nonprofit organizations, and other legal forms. Within the market/state system and property law, this approach certainly has a logical appeal. It is a way that groups of people try to serve collective social needs over private business interests. This approach has fed the belief that collective property is quite different from individual property. But in truth, they are more alike than different. Individual property means that there is one owner.20 Collective property has two or more owners, or even thousands of co-owners. But in either case, the character of property rights (the ability to exclude, transfer, etc.) is much the same. The chief difference is in the number of owners, not in the nature of the property rights.
What we are suggesting is that collective property is only modestly different from personal property. There is no difference in principle between the two. It helps to realize that the etymology of the word “private” traces back to the Latin word privare, meaning “to deprive.” Individual and collective property rights both authorize the right to deprive, or exclude others from use of the property. But beware of binary thinking: when we point to the commonality between individual and collective property, we are not naively suggesting that all property should instead be open to anybody at any moment, without limitation.
We are suggesting a reconceptualization — that it is possible to reimagine property in ways that limit use, honor social relations, and prevent domination. These are, of course, some essential features of commons. Finding ways to rethink property could help us support commons and reverse engineer the totalizing dynamics of capital. We will return to this topic in Chapter Eight, but for now let’s have a closer look at the supposed differences between private and collective property.
There are significant differences between the ways in which property rights are exercised by one owner as opposed to several owners. Collective property requires at least a common agreement among all co-owners, which itself can be quite complicated. And some forms of collective property such as co-ops, trusts, and nonprofits avoid the structural imperative to maximize profits, in the ways that corporations and businesses must. So some forms of collective property can achieve a great deal of social good despite using legal forms philosophically rooted in an individualist mindset.
Ultimately, however, the potential of collective property as a legal form has limits. It still divides the world into “mine” and “yours” or even “for our group alone” (a “club good,” in economic terms). As a result, even collective property can be bought out by those with more money or sold out by co-owners abandoning their mutual commitments. The owners of a co-op, for example, upon seeing an appreciation in the market value of their assets, may decide to cash out. Or its leaders may decide to turn away from a mission of mutual support and become a market competitor that functions as a quasi-corporation. Or the trustees of a foundation or trust may decide unilaterally to liquidate the entity without regard for the designated beneficiaries.
If we wish to imagine a post-capitalist order that gets beyond the built-in presuppositions of property law and the host culture of capitalism, we will have to look elsewhere. We see two general approaches: a Pre-Property Regime that allows anyone to access and use resources without restriction; and Relational Ways of Having that recognize and support commoning. A Pre-Property Regime is in effect an open access regime or free-for-all. This approach is attractive for the use of knowledge, ideas, and digital code because it establishes open platforms and open exchange, escaping direct proprietary control. However, in the case of finite resources like land, a Pre-Property Regime amounts to a free-for-all that can result in overexploitation.
The following table illustrates the differences between personal property and collective property, and how they differ from a Pre-Property Regime.
The differences between personal property and collective property are gradual. However, there is a qualitative difference between private property regimes (personal/corporate/collective) and a No-Property regime.
Source: Authors’ elaboration on G.G. Stevenson’s classifications in Common Property Economics: A General Theory and Land Use Applications (Cambridge University Press, 1991), p. 58.
Relational Ways of Having is a way of using things that lets participants flexibly decide among themselves how shared wealth and social relations shall be managed. This regime moves beyond the presuppositions of conventional property law and its market norms. No single party or faction has absolute legal control over the wealth, and certainly no one has authority to sell it. It is protected from both internal capture and external alienation. This also means that the resource is protected from what we call Governing-through-Money, the capitalist practice of allowing those with greater money to out-govern and control others. This flaw is baked into property law. By presuming that value=money and that therefore more wealth=greater value, the principle of “money rules” is inescapable. It is not only a problem for commoners, but for capitalist enterprises forced to dance to the tune called by the owners of finance capital.
Relational Ways of Having help us realize that there are many ways to steward and deepen the multiple relationships affected by property. This conceptualization helps us see how individual use rights and collective property regimes are not mutually exclusive. Indeed, they need each other! Individual use rights are a key condition for a flourishing collective property regime. Individuals must always have spheres of personal discretion and privacy. To better understand how use rights and collective property can coexist, we need to see the distinction between Possession and Property.
Possession is Distinct From Property
In both common law and civil law systems, possession is what happens when you personally have control over something by (sometimes literally) “sitting on it.” The Latin word sedere, from which the word “possession” derives, means “to sit.” Think about the flat you’ve rented. From a property law point of view, you may possess it as a tenant, but you don’t own it. You cannot give it away, bequeath it to your children, transfer or sell it, or, in legal terms, “alienate” it. You can sell only what you own, not what you possess.
Privileging ownership over possession has far-reaching consequences. It means that the state, in alliance with corporations and investors, becomes the champion of owners. It installs a hierarchy of subordination and capitalist social roles. This can be vividly seen in the history of states sweeping aside Indigenous rights and traditional use rights, installing in their place modern, liberal property rights and the market system.
In the late 1880s, for example, the US Government sought to eradicate Native American commoning of land by imposing a system of private ownership. The Dawes Severalty Act, which mandated this radical cultural dispossession, granted US citizenship only to those Native Americans who took up “residence separate and apart from any tribe” —
i.e., to those who gave up their tribal identities and became private property holders. The prime author of the Dawes Severalty Act, Senator Henry Dawes of Massachusetts, explained that under common ownership “there is no enterprise to make your home any better than that of your neighbors. There is no selfishness, which is at the bottom of civilization.”21
On countless other occasions, European and American imperialists have repeated this pattern. They have forced Indigenous cultures to surrender their stewardship of inalienable common lands and treat their land as “private property” and tribal members as individuals. Historian E.P. Thompson described how this model was imposed on Indigenous peoples in North America, India, and the South Pacific: “Property in land required a landowner, improving the land required labor, and therefore subduing the earth required also subduing the laboring poor.” Thompson cites a Lord Goderich, who explained in 1831: “Without some division of labor, without a class of persons willing to work for wages, how can society be prevented from falling into a state of almost primitive rudeness, and how are the comforts and refinements of civilized life to be procured?”22
Once again, ownership implies a different social order and set of relationships to the earth than possession. The two are similar in that both provide clear rights of access and use, and neither is “open to all and shareable without restriction.” If you own a flat, you are entitled to sell it or give the key to the person who rents it. If you only possess a flat (because you rented it), you can still determine access rights (you have the key) but are not entitled to sell it.
As this difference suggests, possession is focused on concrete use and use value (which are critical to commoning) while property ownership is oriented toward exchange value. Custom, vernacular practices, ethical norms, sacred places, and historical things are generally subordinated to the rights of owners.23 However, custom, or what we call Vernacular Law, has its own underestimated powers. It commands the respect of large numbers of people, and therefore has a moral authority and political power that the guardians of property law may be reluctant to acknowledge or confront. Vernacular Law also can provide participatory, localized solutions for problems that stymie bureaucracies and markets. We now turn to Vernacular Law as a potential counterforce to the overreaching claims of property rights.
Custom as Vernacular Law
In traditional commons, use rights were not enforced through formal, written law, but through social memory and lively traditions. Community life featured “an annual procession around the boundaries of the village and the lands belonging to it, and a communal drink after auditing the common box (the community funds),” as one property historian writes.
Folk customs were combined with the common pasture. To the peasants, the bell that the village bull wore around his neck on the pasture signaled, ‘the reeve is coming, the reeve is coming!’ (The reeve kept the community’s breeding bull.) On New Year’s Day, the herdsmen blew their horns, went from door to door and sang their song, asking the peasants to give them something — such as their best-smoked sausages. The gifts were considered an expression of the peasants’ esteem for the community employees’ careful handling of their livestock.”24
In all cultures, largely outside the gaze of state law and monarchies, another legal tradition has successfully managed resources on its own terms. It is not driven by the formal logic of state jurisprudence, and some might not even regard it as law because it is unwritten. But certainly the everyday practices, rituals, and ethical norms of ordinary people function as a powerful form of law. Custom is one way that people have sustainably managed themselves and their care-wealth without the centralized, top-down apparatus of state power.
Examples are plentiful. Throughout the world, fishing communities stage rituals to express thanks for the return of the fish. Harvest festivals celebrate and enact the proper ways to bring in the crop. The subak rice farmers of Indonesia have developed elaborate religious rites to coordinate when to irrigate and harvest. Forest commoners agree on ways to monitor for poachers and theft. The scholars associated with the International Association for the Study of Commons have produced hundreds of case studies about similar commons.
Sometimes the state chooses to recognize custom for its own administrative convenience, in effect ratifying customary practices as a matter of law. This can be seen in the ejidos of Spain and Mexico, the acequias for water irrigation in New Mexico, the obştea of common land and forests in Romania,25 the iriaiken for harvesting mushrooms and other natural resources in Japan, and their equivalent in Switzerland, the OberAllmeindkorporation.26 All of these customary commons have existed longer than any state or nation-state in history. The Allmeindkorporationen actually date back to 1114!
Although these forms of peer governance are variously referred to as informal, Indigenous, common, or local, we prefer to use the more general term Vernacular Law. We are inspired by social critic Ivan Illich, who used the term “vernacular” to refer to the living, social character of this mode of law. Vernacular Law thrives in “places and spaces where people are struggling to achieve regeneration and social restoration against the forces of economic globalization,” as one commentator put it.27 Custom as a form of law commands our attention because it can be an effective way for ordinary people to apply their moral sensibilities and practical wisdom to the management of their property, independent of the moral and political logic of the market/state. Precisely because custom defies Lockean notions of property (fixed, based on individual rights, market-oriented), it honors a richer set of relationships among people and the environment. By giving people a way to communicate their existential and affective relationships with rivers, forests, pastures, wild game, and fisheries that sustain them, custom expresses what is meaningful to people. Culture molds itself around natural rhythms. Custom thus can represent a more benign, relationship-based way of having than those sanctioned by modern property law and markets. People’s cherished, tried-and-true practices can be given due respect as a legitimate force in law and governance. Custom can ripen into a functional form of law, and the state may see the wisdom of validating it. The tradition of common law jurisprudence has done this for centuries (while generally subordinating custom to property rights). American jurist Oliver Wendell Holmes, Jr. made the classic defense of customary practice in his famous 1881 essay “The Common Law”: “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong.”28
Vernacular Law is valuable because it emerges from the community itself, and can evolve and mutate as new conditions arise. It reflects the sentiments of ordinary people, not the priorities of their elected representatives, political elites, or jurisprudential thought. As Holmes put it: “The life of the law has not been logic; it has been experience.”29
The modern world often denigrates custom as backward, superstitious, or inefficient. It sees bureaucratic systems — which purport to be based on scientific rationality, fair and uniform rules, and central administration — as the superior way to manage things. But custom, which mixes celebration and conviviality with the serious work of stewarding a living environment, has its own efficacy and moral authority. The annual beating of the bounds — the village procession around the perimeter of a commons described in the Introduction to Part III — was both a festive event with cakes and beer and a serious assertion of commoners’ entitlements.
Custom can be needlessly inflexible, to be sure, but it generally distills the wisdom of years or even generations of everyday experience in a particular landscape. It reflects a rich legacy of experimentation about what works, what doesn’t, and how people can achieve successful, long-term outcomes. In evolutionary terms, one might say that customs are adaptive because they take account of a multitude of subtle, dynamic relationships. That’s another reason why custom can be effective: it embodies people’s situated knowledge, ethical convictions, and emotional bonds to their land, forests, rivers, and mountains.30
Property law professor Carol Rose calls custom “a medium through which a seemingly ‘unorganized’ public may organize itself and act, and in a sense even ‘speak’ with the force of law.”31 This, indeed, is one reason why the state is often wary of custom: it embodies a moral authority and power that the state powers may regard as a threat. An American court in 1860 rejected the claims of traditional rights, saying that they are “forms of community unknown in this state.”32 Courts have generally declined to recognize custom as compelling because “if a community were going to make claims in a corporate capacity, then the residents would have to organize themselves in a way legally authorized by the state,” explains Rose.33 Despite the desire of politicians and state ministries to supersede and marginalize custom, an estimated half of the world’s arable land is managed collectively by some 2.5 billion people, according to Land Rights Now.34 A significant percentage of these people clearly look to custom as a force in Peer Governance.
Custom as a vehicle of moral authority and practical wisdom poses something of a conundrum for state power: how can it grant formal recognition and legitimacy to social practices that are so deeply informal? Yet the question can also be reversed: can state law enjoy legitimacy and support — and deliver effective results — without recognizing custom? Elinor Ostrom speaks to these concerns with her seventh and eighth design principles — that commoners must have the right of self-organization and that commons must be nested in multiple layers of governmental systems.35
Inalienability: A Crucial Concept for Commoning
While the social practices of Vernacular Law challenge the totalizing logic of property, history has shown the value of a legal doctrine to do the same. The concept of inalienability had its origins in Roman law, and is described in the original Latin texts as “things, the alienation of which is prohibited” and “things with which there is no trade.” The basic idea of inalienability is a prohibition of market exchange. What is inalienable cannot be bought and sold on the market. An inalienable thing cannot be inherited, mortgaged, seized, indemnified, or taxed.
Today, of course, almost everything is subject to almost unrestricted property rights. Virtually everything can be owned. The modern mind has seen fit to make property out of genes, words, smells, and snippets of sound. When combined with the sacrosanct “freedom of contract,” property rights facilitate the constant trading of nearly everything as a way to generate greater (monetized, private) wealth. The market/state enthusiastically encourages this dynamic because it promotes economic growth and tax revenues. In the process, however, trading relationships have an anti-social dimension: they constantly reenact the line between you and me and dissolve the bonds that connect the members of a society.
Surely one reason that inalienability has been such a hardy idea is that it originates as a social and ethical judgment — that it is wrong for some things to be appropriated. People would consider it a violation of community ethics or feelings of the sacred and profound if, for example, someone were to spray paint hateful graffiti in the town square or if religious shrines were used for commercial purposes. Most societies today regard the sale of babies, body organs, sex, legal rights, and votes as morally repugnant. There is a sufficiently strong social consensus that these things have such profound significance that the moral identity of the community itself would be compromised if they could be legally sold. Inappropriability is always a social judgment first, which legal systems later elevate into a legal prohibition. Roman law was endorsing the judgment that ancient places, theaters, roads, rivers, water conduits, and so on, should not be appropriable and tradable in the same way that bread and butter were.
It’s worth pondering the implications of this idea for our time. What if society were to regard certain artifacts as inalienable to anybody in general? What if our property rights did not entail absolute dominion, which includes the right to sell, but were instead limited? What if we recognize that the power of the commons also depends on the fact that, as French legal scholars Dardot and Laval put it, “Commons define a norm of inappropriability.”36
If this were the default legal position for certain realms of life, it would help reverse the damage associated with the alienation of so many things as tradeable property. As economic historian Karl Polanyi documented, the fledgling capitalists of the eighteenth and nineteenth centuries forcibly redefined land, money, and labor as tradeable commodities.37 Polanyi called them “fictitious commodities” because none of them is actually produced for sale. Land is actually a gift of nature that teems with living creatures. Labor is human life itself. Money is merely a token of purchasing power — a means of trade — and not the object of trade, money itself as a commodity. Converting land, labor, and money into tradeable property was a precondition for creating market society.
It is therefore worth emphasizing: possession is not the problem. Tradeability, enacted through property rights, is. So what if we were to reconsider our treatment of land, labor, and money — and, we would add, knowledge — as commodities that can be owned? What if we began to treat them as something that should not be appropriated in the first place or be alienated for market use? What if we were to declare that digital code and knowledge, for example, could not be appropriated for individual use exclusively, but must be available to many individuals, separately and together, at the same time?
Creating protected spheres of inalienability in contemporary life may seem utopian. After all, modern society idolizes ownership. But it is neither far-fetched nor impractical to create zones of inalienability. When Dr. Jonas Salk, a co-creator of the polio vaccine, was asked in 1955 who owned the patent, he famously replied: “Well, the people I would say. There is no patent. Could you patent the sun?”38 Salk found it morally repugnant that a life-saving vaccine might be used as a source of private profits and become unaffordable to people who needed it. He therefore entrusted the polio vaccine to the World Health Organization to help assure that its benefits would be made widely available. A different cultural ethic has taken root in subsequent decades, of course, as nation-states grant patents to all sorts of essential medicines, mathematical algorithms, business methods, and knowledge that should be available to everyone.
In New Zealand, an inalienability rule is used to protect the trout population in Lake Taupo. The fishery regulations not only declare a cap on how many fish can be taken — a daily bag limit of six trout — but also a rule making it “illegal to sell or purchase trout.”39 So even though Lake Taupo is full of trout, you can’t eat any of them in local restaurants unless you fish them yourself, as allowed under the “daily bag catch.” You can bring your fish to the restaurant and they will prepare it for you — just as some restaurants in the US without a liquor license allow you to bring your own bottle of wine.
Rediscovering the Power of Res Nullius
Any project to reinvigorate the idea of inalienability would do well to study the history of an important doctrine of Roman law, res nullius. It is revealing that contemporary scholarship has all but forgotten this legal category and its judgments about shared culture. How did this happen? And could something similar to res nullius serve today as an effective legal element for responsible stewardship?
Res nullius had its roots in the early sixth century, when Emperor Justinian ordered a systematic synthesis of all existing imperial laws drawing upon the most important works in jurisprudence. The result, the Justinian Code — or, more formally, Corpus Iuris Civilis which means “Body of Civil Law” — issued between 534 and 528 B.C.E., greatly influenced modern law. The Code partitioned into separate classes the great mass of things that could be subject to property ownership, with different access and use rights for each class of property. (See table below.) Today, while we assume that property ownership falls into two basic categories, public and private, the ancient Romans remind us that there are more. They had a legal classification for personal property rights — res privatae. The state acted as a protector and trustee of res publicae — lands, civil buildings, and infrastructures — and recognized common property regimes, the so-called res communis, for air and water.40 It also declared that certain things known as res nullius cannot be owned.
Table based on definitions in the Institutes of Justinian.
A question that ought to concern we moderns is why the idea of unownability has virtually disappeared over the centuries. This is hard to say with any certainty, and diving into details and differing interpretations is beyond the scope of this book. But history tells us that when scholars were creating the new Justinian Code, they reinterpreted the original Latin terms used by prior legal scholars.
We can get an idea of how that happened by looking at one legal source, a text by Gaius, the celebrated Roman jurist of the second century. Gaius recognized five categories of property — the sacred, religious, and holy, (yes, three distinct realms!) as well as public and private — which the Justinian Code collapsed into four (see chart above). Why and how exactly this was done is hard to say with any certainty, but the point that is important to us is that new legal categories were invented, and old ones reinterpreted, as the Justinian Code was devised. and the very premises of law were reinvented. In that process, some pivotal shifts in the idea of ownability occurred, especially in distinctions that property law had previously made between things governed by divine law (ius divinum) and human-made law (ius humanum).41 While the latter body of law is clearly based on a social agreement, divine law (also sacred law) refers to any law that was believed to have come directly from the will of the gods (or in other societies, God or the Creator). And what was sacred, part of divine law, could not be appropriated and sold.
But to make matters more confusing, some pre-Justinian legal sources referred to so-called patrimonial things, such as objects of cultural heritage, that could not be sold. These were the opposite of extrapatrimonial things that could become commercial objects. The core of the matter is that things that belonged to the patrimonial sphere, or to divine law (depending on the text you look at), were considered inalienable by definition, and thus illegal to sell.
When the legal scholars assembled the Code of Justinian from such very diverse sources, they had to grapple with two sets of basic classification that existed in parallel — ius divinum/ius humanum in some sources, and patrimonial/extrapatrimonial in others. This obviously posed a problem. The classifications were not only overlapping, they were incompatible with each other. If the scholars were going to construct a single coherent restatement of law, they would either have to abandon one basic set of legal categories or generate a new classification system entirely. It’s as if designers were trying to meld the design logic of one interlocking, modular set of blocks — say, Lego — with a different set such as Playmobil. Within either system, everything fits together perfectly, but the two systems do not work together. This partly explains why the idea of unownability sank into oblivion: the framers of the new code of law could not accommodate the idea of sacredness, which had been attached to the idea of inalienability. The latter therefore lost its previous standing in law.
The process for synthesizing the new Justinian Code took another turn that affects us today. The ancient Romans, smart as they were, had wrapped the idea of inalienability in a “double cover” of protection. Legal historian Yan Thomas calls it a “double modus of being public and sacred,” by which he meant that inalienability pointed to the sacred character of public things. In other words, the Roman concept of “public” reflected a veneration for eternity and the sacred while also signifying something usable by all and publicly controlled in perpetuity.
Over the centuries, this latter idea of the patrimonial has been more explicitly preserved in law than the idea of “the sacredness of the public.” In fact, the idea of the patrimonial was given fresh life in 1982 when the Law of the Sea Convention (also known as UNCLOS III) was ratified. It declared that resources in waters beyond national jurisdiction, such as deep sea minerals, would be regarded as the “Common Heritage of Mankind.” However, it would be a mistake to presume that things considered part of the Common Heritage of Mankind are treated as inalienable and protected. Nation-states make conflicting claims to common heritage resources, and in fact, most negotiations revolve around how they should be exploited, by whom, and how profits will be distributed. Inalienability and protection of our heritage are not salient parts of the conversation.