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The Commons: A historical concept of property rights

The commons, an historical concept, has become an object of interest for the modern social sciences and the general public like few before it. It is well known that it became famous due to Garrett Hardin and his influential article, “The Tragedy of the Commons” (Hardin 1968). Hardin had extrapolated from the historical phenomenon of the commons to identify principles for managing parking lots, oceans, national parks, air and water.1 The question arises here whether this might be an ahistorical analogy that contributes little to clarifying the problem as it presents itself today.

The criticism of Hardin’s essay made it clear that the historical commons were by no means “open to all” and therefore subject to tragically unavoidable des­truction. Instead, there was a clearly defined group of people with rights to the commons who agreed with one another on rules in order to avoid degrading the resource.2 Hardin used a less sharply defined concept than Gordon, who spoke of the oceans as a “common-property resource” (Gordon 1954). However, Gordon’s critics argued that it is wrong to speak of common property if nobody has claimed the resources accessible to all as property.

Elinor Ostrom dropped the category of property rights as a starting point for analysis and instead founded her studies on the term “common-pool resource,” a term used to describe oil or groundwater deposits. She also differentiated between open-access and limited-access natural resources. She agreed with Hardin that open-access resources belonging to no one are vulnerable (Ostrom 1990), but disagreed when it came to limited-access resources. Ostrom and others gave a number of examples of common usage, some of which had existed for centuries and had sustained the resources in question. And this is where the concept of property rights comes into play again.

Ostrom and Schlager differentiated between various bundles of property rights and their holders, namely 1) authorized users, whose rights are limited to access and withdrawal of resources; 2) claimants, who can also exclude others; 3) proprietors, who have additional management rights; and 4) owners, who also have the right of alienation, i.e. to sell the resource. The stronger the bundle of rights, the less danger to the existence of the common pool resources, they postulated (Schlager/Ostrom 1992).

The concept of property as a bundle of rights permits us to create a hierarchy of the rights of authorized users, claimants, proprietors and owners. We can derive a typology by means of a comparative analysis of cases of common property management around the world, or by looking at the historical commons, as to which forms of management and which constitutions relating to property rights enabled them to survive for centuries.

The commons in historical perspective: the story of enclosures

Before the Agrarian Revolution, which was linked to the Industrial Revolution, there were two different intensities of land use (the following is based on Zückert 2003): intensive cultivation of arable and meadow land (manuring, plowing, sowing, harrowing, harvesting, irrigation or drainage), which was therefore the peasants’ private property; and extensive cultivation of grazing land and woodlands where cattle was herded and wood harvested, and which for this reason remained common property: the commons (see figure). How much livestock an individual could have depended on the amount of hay available as winter fodder, that is, on the size of the meadows. From spring to fall, cattle were herded on the common pasture.

The Agrarian Revolution basically meant that people started to grow forage crops such as clover, turnips and potatoes, making it possible to feed cattle in the barn. Thus, rough pasture was no longer needed. The commons was either turned into fields or cultivated more intensively as pastureland. In other words: it was enclosed. The practice of having animals graze in the forest (wood pasture) was abandoned, and the forests were devoted to intensified timber production and privatized as well for this reason. The only uses to remain communal were those that were possible only on an extensive basis, such as Alpine meadows.

The agrarian innovations required capital investment: changes to crop rotation, seed for the feed crops, fences or hedges, barns and new equipment. For this reason, peasants, leaseholders and manorial lords with substantial holdings were at an advantage in the process of changing the mode of production and promoting it, while smallholders kept to traditional forms of farming. That was the basis of the conflicts around enclosures between manorial lords and leaseholders on the one side and smallholders on the other. Unable to compete, the latter lost out. Without keeping a few head of cattle on the commons, they could not survive, and once the commons was enclosed, they could no longer farm for themselves and thus had to work as laborers on the farms of those who had benefited from the enclosures. That was the true “tragedy of the commons.”

The basic distribution of property after the enclosures initially corresponded to the system of property rights that had prevailed before. In the feudal order, property was always shared property, that is, the nobility or the priory loaned the peasant his holding and the land that belonged to it; he had to perform labor services and pay rents in kind or money rents and was subject to the jurisdiction of the feudal lords. As the commons was part of the farmland, it, too, was under the control of the landlord, who was known in England as the “lord of the soil of the common.” The lord and the commoners alike herded cattle on the common pasture and harvested timber in the woods. In Europe, the degree to which this occurred depended on whether the feudal lords had agricultural businesses themselves or were sustained mostly by rents.

East of the Elbe River, the peasants had to perform labor services in the fields of the manor even until the 19th century and only had usage rights to the commons. In England and the Rhineland, on the other hand, the manors were leased, and this ensured that the leaseholders had a dominant position vis-à-vis the other commoners in using the commons. In England, the commercial demand for wool resulted in the lord’s flocks of sheep flooding the commons. In the Rhineland, the “Meistbeerbten”–the leaseholders–increasingly took on responsibility for manag­ing the forest. In southwestern Germany and Switzerland, the manor fields were let out to the peasants, and the feudal lords limited themselves to the extensive branches of the economy, such as lumbering or grazing sheep, and competed with the peasants for the commons.

Accordingly, property rights developed in different ways. In southwestern Germany, the feudal property was forced back more and more, and around 1800 the peasants were de facto owners of their farms and the common pastures. They also enjoyed defined use rights to the forest, and often also to community woods. East of the Elbe, in contrast, the peasants only had weak property rights to their farms and usage rights to the commons.

With different property regimes, the consequences of the enclosures differed as well. In England, the lords and their leaseholders secured the lion’s share of the commons – a scandal criticized publicly as early as 1516 by Thomas More in the critique of society he placed before his “Utopia”: “sheep...devour men.” The nobility and abbots, he wrote, were “stop[ping] the course of agriculture, destroying houses and towns, reserving only the churches, and enclos[ing] grounds that they may lodge their sheep in them.” East of the Elbe, the situation was worse; the nobility was taking possession of the common land and granting the peasants only minimal “compensation.” The manors, which had grown large because of the appropriation of the commons, were run with semi-free laborers who obeyed the nobility’s lashes. The state acted as midwife of the new system of property rights by passing the parliamentary enclosures, i.e., enclosures enabled by laws of Parliament, in England (c. 1760-1820) or the Gemeinheitsteilungsordnungen in 1821 in Prussia. In southwestern Germany, in contrast, dividing up the commons after a long process resulted in a beneficial situation for the peasants and communities.

The commons in history: managed by the cooperative

In terms of property law, the commons were bound to ownership of fields; everyone who owned fields was permitted to herd their cattle on the commons. Arable farming was organized in cooperatives, and the village cooperative had the authority to manage the commons. An important rule concerned the date when the harvest was concluded; on that date, cattle were herded to the stubble, where they manured the soil. In other words, fields and meadows turned into commons after the grain and hay were harvested. Private property was in abeyance and treated as common property until spring returned.

All of a village’s cattle were herded on the pasture together, either by peasants taking turns or by a herdsman hired by the cooperative. It was his duty to ensure that the cattle did not go onto the fields. When the increasing number of cattle raised the risk of overgrazing the pasture, the cooperative issued an ordinance for the pasture in the form of a so-called Weistum, or bylaw. It limited the number of cattle (“stinting”), impounding them if necessary and levied fines and enforced their collection. There were similar arrangements for other rules and offenses. If too much wood was cut, allotments were set. Thus, cooperative institutions were required: firstly, an assembly of the cooperative that decided on the rules; secondly, a village mayor who implemented the bylaw of the commons; and thirdly, a village court that adjudicated disputes. In this way, dangers to the commons produced new competencies within the cooperative.

These capacities included oversight of the common land within the village itself, where communal institutions such as the herdsman’s house, the smithy, the bakehouse or the bath were situated. The community used wood from the common forest to build and heat such buildings. The community could also sell common land for common purposes. In other words, the cooperative formed communal institutions capable of holding rights and assets.

Cooperative means that the cooperative action of all enables the individual proprietor to conduct economic activity. This is the root of the cooperative motto, later mythologized as, “One for all, all for one!”

Only landowners had property rights to the commons. But besides the peasants, limited use rights were granted to artisans in the village, whose services the peasants depended on, as well as laborers who were employed by the peasants in peak periods, especially the harvest, and who otherwise earned their livelihoods by spinning and weaving. The cooperative permitted these non-peasants to herd one cow on the commons and to collect dead wood in the forest. These usage rights arose from the mutual dependency of villagers on one another. As the number of spinners and weavers in the villages increased during the early stage of industrialization, the numbers of their cattle increased to such an extent in some places that they overburdened the commons. This indeed brought about a crisis of the commons in these industrialized villages, as those who did not own fields were dependent on the marginal use of the commons, even though the commons were actually a complement to the cultivation of fields.

The stronger the peasants’ property rights to the fields, and therefore also to the commons, the stronger their self-government. At the village court, it was no longer the interests of the lord that were determinative, but those of the peasants’ cooperative. The reeve – an official elected by peasants to supervise the land for a lord – became an institution of the community; the manor court became the village court. People’s thinking developed accordingly, and cooperative principles were elevated to the norm. The size of the individual peasants’ holdings was irrelevant when the cooperative assembly took a vote. Instead, every peasant had a vote, following the principle of one man, one vote. And the individual’s pursuit of profit was always limited so that it would not impair the livelihoods of all; that was the purpose of limiting the number of cattle on the commons. “Common benefit” was the uppermost norm of this cooperatively organized society. And it was by no means limited to the local sphere. As this norm was widely recognized, it was also applied to societal issues in general, such as the demand that rulers use the state to promote the common benefit, and the church to preach these values (Blickle 1998).

Community life was lively and featured an annual procession around the boundaries of the village and the lands belonging to it, a communal drink after auditing the common box (the community funds). 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 (Zückert 2001).

The commons were part of an economic system that, given the developmental stage of the agricultural production methods, had no alternative but to be communal. Managing the commons was based on social and cultural interaction (which was all the more vibrant the more the cooperative managed this economic activity itself) and closely connected to the cooperative’s property rights to the common resources.

Global commons?

The historical concept of the commons covers a broad spectrum of communal property rights, from merely the right to use a resource owned by the feudal lords to self-management, the exclusion of third parties, and even the right to sell the resource. The historical understandings of the commons have the same scope as Ostrom’s studies of natural resources.

In contrast, the concept of the commons today often refers to open-access natural resources such as oceans, the atmosphere and space.3 Such aspirational uses of the term do not specify the actual governance regimes that can sustainably manage them, however.

Are the defining characteristics of the historical commons – or a comparable concept of common property – transferable to open-access commons or even to global resources? Ciriacy-Wantrup and Bishop were convinced that common-property institutions might be helpful in solving current-day problems of natural-resources policy and are doing so already. High-seas fisheries can serve as an example here. Limiting a fishing season to counter overfishing has a parallel in the grazing season on the commons; extending national fishing zones to 200 miles from the coast is analogous to the boundaries of a village’s grazing land and the determination of who had rights to graze livestock there. The establishment of national quotas and individual fishermen’s quotas resembles the practice of stinting on the commons. Similar institutions regulating use of the atmosphere, they believe, might emerge. Following those who consider the oceans to be the common heritage of all mankind, one could consider these resources to be a “giant commons managed as a trust by some international agency such as the United Nations.” (Ciriacy-Wantrup/Bishop 1975)

The historical concept of the commons is a concept of property rights. If we historicize the contemporary debate about the commons and bring the historical concept of the commons into play, we must take that into account. Yet we must consider whether the question of property rights is even the central issue if we seek to solve global problems, and if so, how common-property rights can be fleshed out today.4

References

  • Blickle, Peter. 1998. From the Communal Reformation to the Revolution of the Common Man.City: Leiden.
  • Ciriacy-Wantrup, Siegfried V. and Richard C. Bishop. 1975. “‘Common Property’ as a Concept in Natural Resource Policy.” Natural Resources Journal. 15:713–727.
  • Gordon, H. Scott. 1954. “The Economic Theory of a Common-Property Resource – The Fishery.” Journal of Political Economy. 62:124-142.
  • Hardin, Garrett. 1968. “The Tragedy of the Commons.” Science. 162:1243-1248.
  • Lerch, Achim. 2009. “The Tragedy of the ‘Tragedy of the Commons’.” In Genes, Bytes and Emissions: To Whom Does the World Belong? http://www.boell.org/ /web/148-576.html.
  • Ostrom, Elinor. 1990. Governing the Commons. The Evolution of Institutions for Collective Action. Cambridge, England. Cambridge University Press.
  • Rösener, Werner. 1985. Bauern im Mittelalter. München.
  • Schlager, Edella and Elinor Ostrom. 1992. “Property-Rights Regimes and Natural Resources: A Conceptual Analysis.” Land Economics. 68:249-262.
  • Zückert, Hartmut. 2001. “Gemeindeleben in brandenburgischen Amtsdörfern des 17./18. Jahrhunderts.” In Zückert, H., Rudert, T., eds. Gemeindeleben. Dörfer und kleine Städte im östlichen Deutschland (16.-18. Jahrhundert). Köln. 141-179.
  • —————. 2003. Allmende und Allmendaufhebung. Vergleichende Studien zum Spätmittelalter bis zu den Agrarreformen des 18./19. Jahrhunderts. Stuttgart.
  • 1. Peter Linebaugh’s essay traces the concrete background of Hardin’s historical reference.
  • 2. An overview of the discussion is to be found in Lerch. 2009.
  • 3. Editors’ note: What is more, in the modern debate on the commons, all objects and resources that are not produced by an individual or that are given to the general public are called common resources or commons, regardless whether they are natural or cultural resources or whether they require restrictions to access or not. Knowledge commons, for example, flourish best if open access to knowledge and information are guaranteed.
  • 4. I am grateful to Julio Lambing for discussions and food for thought.

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