The liberal commons.

Author:Dagan, Hanoch
  1. INTRODUCTION

    Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline--there are now fewer than 19,000 black-operated farms left in America.(1) By contrast, white-operated farms dropped only by hall from about 5.5 million to 2.4 million.(2) Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending.(3) However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. Because black farmers often did not make wills, their heirs took the land as co-owners. Over generations, co-owners multiplied, the farms became unmanageable, and the land was partitioned and sold, a seemingly inevitable "tragedy of the commons" in which too many owners waste a common resource.(4) Black rural landownership may seem a dusty topic, peopled with hardscrabble tales of property past. Consider, though, the daunting possibility that property future--think biomedical research, post-apartheid restitution, hybrid residential associations, perhaps cyberspace--may have the same analytic structure, be subject to a similar punishing legal regime, and face the same fate as the black rural landowner.

    Overcoming the tragic fate of commons property should not be so hard. Until now, however, legal theorists have often worked within a framework that makes happier solutions difficult to imagine. Typically, theorists have relied on a thin utilitarian language yoked to a narrow conceptual map of property. One school, worrying that rational owners will overconsume commons resources, has embraced the so-called Blackstonian image of private property with "sole and despotic dominion" at the core.(5) Another school, after showing how small, close-knit groups can successfully conserve commons resources if they sharply restrict exit, has advocated a version of commons property.(6) For both schools, the image of tragic outcomes proves an ideal foil, one that implicitly points theorists toward their preferred normative solutions. Privatization seems inevitable for utilitarians with a liberal bent, because they believe that locking people together violates a fundamental concern for individual autonomy. By contrast, illiberal communitarian solutions seem relatively attractive to those who are ready to sacrifice individual autonomy for collective goals. While these underlying normative commitments drive the familiar debate over tragic outcomes, they never surface as the focus for analysis of commons resource management.

    In this Article, we argue that linking the utilitarian vocabulary of economic success with the conceptual binary of private/commons property creates too paltry a framework when utility cannot be safely reduced to wealth alone, that is, when the social gains from cooperation are not just fringe benefits, but instead are a major part of what people seek. A better framework focuses more directly on the underlying normative commitments that animate the tragedy debate, and then challenges images that suggest their inevitable friction. Our approach also differentiates among resource dilemmas, for example, distinguishing "open access," in which anyone at all may use a resource and no one may be excluded, from "commons ownership," in which a bounded group, such as a farm family, controls access to a valuable resource.(7) This Article does not discuss the often losing game of open access; rather, we focus exclusively on institutions for commons resource management where participation may be of the essence, the terms for exit matter, and the calculus of utility must account for incommensurable goals.

    For this (substantial) subset of commons ownership settings--including, for example, marital property, partnerships, condominium associations, and close corporations--the polarizing vocabulary of the "tragedy of the commons" debate renders invisible the most difficult and important tradeoffs and unintentionally freezes legal imagination and innovation.(8) There is no neutral, pre-political tragedy of the commons: The metaphor itself assumes either open access (anarchy or no law) or law that is hostile to cooperation. Rightly considered, the problem of managing commons resources concerns not only tragic outcomes, but also tragic choices: Are we doomed to choose between our liberal commitments and the economic and social benefits available in a commons? No. Well-structured law can, and often does, mediate liberty and cooperation. Thus, we contest communitarian claims that elevate illiberal commons property and too quickly jettison individual autonomy; equally, we dispute the claims of privatizers who assert an exclusive preference for old-fashioned private property and who disparage cooperation.

    For many resources, the most appealing ownership form proves to be a participatory commons regime that also allows members the freedom to come and go. We call this structure a "liberal commons"--an ideal type of ownership distinct from both private and commons property, but drawing elements from each. Any legal regime can qualify as a liberal commons when it enables a limited group of owners to capture the economic and social benefits from cooperative use of a scarce resource, while also ensuring autonomy to individual members who retain a secure right to exit. Constructing a successful liberal commons is always challenging, but it is not an inherently contradictory or practically unattainable goal.(9)

    Legal regimes that account for a substantial and increasing share of social life--again, consider marital property, partnerships, condominiums, and close corporations--can be structured to be consonant with liberal commons goals. When well-tailored, these institutions encourage people voluntarily to come together to create limited-access and limited-purpose communities dedicated to shared management of a scarce resource. They offer internal governance mechanisms to facilitate participatory cooperation and the peaceable joint creation of wealth, while simultaneously limiting minority oppression and allowing exit. On their own, people are already creating pervasive, though unremarked variations on liberal commons themes. We provide a roadmap so law can better support their efforts.

    The liberal commons construct should prove useful because it does not simply revisit ongoing liberty/community and private/commons debates. Instead, it reorganizes these debates altogether around a richer set of questions and answers. On the questions front, we expand the evaluative prism for commons resource management from a sole focus on economic success to a broader view that explicitly includes the liberal value of exit as well as noneconomic goals such as the intrinsic good of interpersonal cooperation. We offer a consistent analytic language engaging precisely the widely shared values that seem to animate our most important commons resource institutions. Also, on a descriptive level, our construct does better than existing property categories at explaining how these institutions work. On the answers front, an attractive feature of our approach is that it bounds the range of solutions consonant with liberal commons values: Our normative umbrella, while capacious, is not unlimited. We employ widely shared conceptions of autonomy (as including a commitment to free exit) and community (as both instrumentally and intrinsically valuable) to provide the liberal commons with a critical edge and normative yardstick. Across the wide variety of existing institutions where it may be deployed, our construct often yields persuasive arguments for legal reform. By rethinking the important questions and answers, and by intertwining descriptive and normative elements, our interpretive approach yields a strong result: We can help reconstruct many areas of law so they are more consistent with their animating values,(10) and we can confine the tragedy of the commons metaphor to its proper, limited place in legal theory.

    The goals of this Article are to advance a theory of the liberal commons and to demonstrate its usefulness. Part II introduces the problem of tragic choice. Relying on the private/commons dichotomy, theorists have chosen between liberal and communitarian solutions to commons tragedy. Because they have overlooked the liberal commons synthesis, they have missed how law can shift debate in a happier direction. Part III proposes a theory of the liberal commons that engages the problem of tragic choice. We explore the widely shared, often buried, and potentially competing goals that law must reconcile when people want to cooperate in managing a scarce resource but fear abuse. We then discuss the background role that law can play in guiding human behavior. Finally, we set out the three spheres of decisionmaking that characterize the general form of the liberal commons solution--the spheres of individual dominion, democratic self-governance, and cooperation-enhancing exit. These three spheres are the core innovation of our theory: They provide a coherent language for exploring the recurring problems that law must address whenever it mediates liberty and cooperation in commons ownership settings. Part IV rewards the reader's patience with legal theory by bringing the liberal commons down to earth. The example of declining black landownership is complex; we use it here for the limited purpose of suggesting how the American law of co-ownership may systematically thwart cooperation. Current law fails them, and us, because it lacks the three features of a liberal commons, features that, we show, exist in other developed legal systems and are potentially available in our own. While a liberal commons solution may be too late for black farmers, their example can still catalyze...

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