Two Models of Ownership: How Commons Has Co‐Existed with Private Property

• DOI: http://doi.org/10.1111/ajes.12147
• Author: David Tabachnick
• Date: 01 March 2016
• Published date: 01 March 2016

Two Models of Ownership: How Commons

Has Co-Existed with Private Property

By DAVI D TABACHNICK*

ABSTRACT. This article challenges the claim by many historians that the

rise of capitalism requires the destruction of common property systems.

In contrast to the English case in which commons were enclosed, French

peasants used their common property system to regulate the market,

provide a rural safety net and a democratic check on elites, while urban

industry developed. European battles over common property replayed

in surprising ways in colonial African countries such as Sierra Leone, and

echoes reemerge today. The West African country of Guinea tests two

possible paths to development of a market society: the English path and

the French path. Interviews with key government officials collected in

1993 help explain why Guinea, despite adopting a land law in 1992

inspired by the English path, has so far failed to widely apply the law

and, in fact, is following the French path. The United States pursued a

policy of replacing American Indian common property systems with

exclusive individual property rights. Nonetheless, Indian common

property survives in the form of recent recognition of Indian off-

reservation hunting and fishing rights. The Menominee reservation

successfully resisted the destruction of its common property system and

today participates in the market in a manner that preserves reservation

ecology, democratic government, and Menominee cultural identity.

Rethinking the meaning of French, African, and U.S. accommodation to

common property systems offers important lessons for contemporary

development policies in Africa and around the world.

Introduction

What did the global spread of a Western system of real property, from

about the 16

th

century forward, mean for local common property

*David Tabachnick is Associate Professor and Chair of the Sociology Department at

Muskingum University and a member of the Wisconsin Bar. He thanks the students

of his sociology of law class for their lively discussions of the ideas in this article.

American Journal of Economics and Sociology, Vol. 75, No. 2 (March, 2016).

DOI: 10.1111/ajes.12147

V

C2016 American Journal of Economics and Sociology, Inc.

cultures and community governance of land and people in England

and France and subsequently for local indigenous peoples in the

United States and Africa? In this article, I will explore the answer to this

question and challenge the canonical myth that has characterized a nar-

row, rigid idea of Western law and economics as a necessary step

towards capitalism or a modern market society. How is it that a false

and misleading story about the birth of capitalism became so pervasive

that people who disagree about all kinds of things nonetheless agree

on one thing: capitalism arises out of the destruction of common prop-

erty systems?

Central to the story is the conflict between two types of property

rights: 1) common property rights and 2) exclusive property rights. A

common property system is one in which property rights are con-

strained by overlapping group rights. This constraint requires the mem-

bers of a group to agree on activities that affect group property rights.

An exclusive property rights system is the opposite of a common prop-

erty system. In this case property rights are not constrained by overlap-

ping group property rights, which means that a property holder can

exclude others from it. However, in a system of exclusive rights, holders

of property rights nonetheless are always constrained by some level of

government regulatory power. A property rights holder can be either

an individual personor a legal entity, such as a corporation.

I start with a discussion of the enclosing of the commons in England

and the rise of Anglo-American concepts of exclusive property rights,

contract, and local community governance. In France, by comparison,

a coalition of French peasants, church authorities, gentry, and other

elites effectively resisted imposition of an English-style real property

system that excluded overlapping group property rights. In France, a

modern market society developed during the 19

th

century in a manner

that largely accommodated the rural common property system, despite

repeated attempts by state authorities to abolish common property.

Nonetheless, colonial and contemporary France have been thoroughly

dominated by the myth of capitalism as the scourge of common prop-

erty. English and French colonies sometimes confronted, sometimes

accommodated, African common property systems. I sketch a picture

of Anglophone and Francophone Africa, with special attention to Nige-

ria, Sierra Leone, and Guinea. Debates among government officials in

Two Models of Ownership 489

Guinea, after the reform of its land laws in 1992, return to themes in

French and English history. The myth that a modern market society

requires the destruction of “pre-modern” common property systems

has also dominated the relationship between the United States and

American Indians. England’s attack on its commoners and early ideolo-

gists of English colonialism in America, such as John Locke, greatly

influenced Americans. However, Americans at times have acknowl-

edged the rights of American Indians to govern themselves in common

property systems that, as the example of the Menominee will show, can

succeed in a modern market society.

The enclosing of the commons in England was not merely a physical

process of putting up fences but also a conceptual process that created

a new legal, economic,and sociological reality. The commons provided

the basis for local community governance and access by all residents to

land and resources. As commons were enclosed, preexisting systems of

group rights and overlapping community member property rights were

suppressed and property rights were largely consolidated by individual

property owners. The property rights holder always remained subject

to some degree of community governance and, thus, to group limita-

tion of exclusive property rights.

The belief in property rightsthat exclude overlapping group property

rights became part of an emerging ideology of individualism in the 17

th

and 18

th

centuries. There certainly was no concept of exclusive prop-

erty rights among Africans or American Indians. When the latter cul-

tures encountered Europeans who held extremely individualistic views

of property, an epic struggle ensued, which has still notbeen resolved.

Western property systems that are based on exclusive rights have

been forcibly imposed or willingly adopted in instances, but Africans

and American Indians have also at times successfully resisted such

imposition or adoption. In some instances, the process of reducing

overlapping property rights to a unitary holder of exclusive property

rights has been challenged effectively. The West is then forced to

remember its own history, resurrecting a form of overlapping property

rights reminiscent of English communities before the enclosing of the

commons. For example, American Indians have successfully forced

American states to negotiate regulation of off-reservation hunting, fish-

ing, and gathering rights that overlap non-Indian property. Modern

The American Journal of Economics and Sociology490