Ed. note: This is another excerpt from the online version of Free, Fair, and Alive by Silke Helfrich and David Bollier. You can read more about the book and find more content here.

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?

Notes:

  1. Eduardo Moisés Penalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership, Yale University Press, 2010.
  2. E. P. Tompson, Customs in Common: Studies in Traditional Popular Culture, New Press, 1993, p. 162.
  3. B. Macpherson, Property, Mainstream and Critical Positions, University of Toronto, 1978, pp. 199–200.
  4. These themes are explored by scholars of institutional economics.
  5. The person who is most cited for moving property from a concept of person object relations (Blackstone) to person-person relations (social relations) is Wesley N. Hohfeld. See Wesley N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” 23 Yale Law Journal 16, (1913); Wesley N. Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” 26 Yale Law Journal 710, (1917.)
  6. Margaret Radin, Reinterpreting Property, University of Chicago Press, p. 35. Because property rights are generally focused on the right of alienation in a liberal market order, they privilege a kind of personhood based on absolute freedom in market relationships.
  7. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke, Clarendon Press, 1962, p. 3.
  8. understandingsociety.blogspot.de/2011/08/possessive-individualism.
    html. Macpherson, p. 3.
  9. Macpherson, Political Theory, 3.