A ship is on a cruise sailing from port to port. Laid out on the upper deck are deck chairs; there are three times more passengers than chairs on board. During the first few days of the cruise, the deck chairs have a constant change of occupants. As soon as someone gets up, the chair is considered free; no one accepts the idea of placing handkerchiefs or other objects on chairs to indicate that they are being used. This is an expedient arrangement to allocate the limited number of deck chairs.
But once the ship sails into port and a large number of new passengers come on board, this arrangement breaks down. The newcomers, who all know each other, follow a different social convention in using the deck chairs. They draw the chairs toward themselves, and, from then on, lay exclusive and continuous claim to them. As a result, the majority of other passengers cannot use any chairs at all. Scarcity reigns, fights are the order of the day, and most of the guests on board find themselves less comfortable than before.
The “allegory of the deck chairs,” as described here by German sociologist Heinrich Popitz (and brought to my attention by Silke Helfrich), illustrates just how malleable the idea of property really is. While formal laws may declare what property rights people may have in given circumstances, our social norms are at least as important a force—and those are highly adaptable.
The cruise ship passengers had a choice. They could treat the deck chairs as their exclusive individual property even though it meant that many passengers would have to do without, or they could treat the chairs as a shared resource that would more or less meet everyone’s needs. How we define property rights matters because that choice influences the sorts of personal and social entitlements we may enjoy, affects the kind of social relations we will have, and has enormous effects on our sense of well-being (or alienation).
In a much-quoted definition, the eighteenth-century jurist William Blackstone described property rights as “the 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.” He implied that property rights belong solely to individuals. But, of course, property need not be defined this way. As the cruise ship passengers showed, they could choose to exercise temporary individual “use rights” to the same resource instead of exclusive possession. (To be technical, the cruise ship owner is arguably the “owner” of the deck chairs, but the passengers possess them for limited periods of time and in this case are free to set their own rules.)
Different property rights schemes have very different implications for how people’s needs are met (or not met). Such choices influence the nature of the social order and the general attitudes among people. This may be the real point of the allegory of the deck chairs: that property rights are more malleable than most people suspect; that their design can be altered; and that such choices have far-reaching effects on how we relate to each other and the things we use.
People like to think of property as a fairly self-evident category. By default they tend to see it as a private right to exercise exclusive control over physical objects such as land, cars, and smartphones. Landowners typically see their plot of land as a fixed, separate parcel of inert soil over which they may do whatever they want. But this conceit that “property” is utterly separate, having no social or ecological implications, is a fantasy of modern life. In reality, a piece of land is deeply embedded in a dense ecosystem of complicated interdependencies, as noted in Chapter 7. Even as a commodity, the value of land is dependent upon the character of adjacent pieces of land and the larger community. A country home with sweeping views of the surrounding countryside alive with chirping birds and friendly neighbors is more valuable than an identical house located next to a factory and a belching smokestack.
In this sense, land is really a fictional commodity, as we have seen. It may be treated as private property, and we maintain the illusion that it is truly self-contained and fungible. But it is not really a bounded unit whose fullest value can be expressed by a price, in isolation from its context. Property is a kind of social fiction—an agreed-upon system for allocating people’s rights to use a resource or exclude access to it.
But property rights are by no means the only or best way to manage a resource, as I hope to show in this chapter. Property is better understood as a relational system. Land can be well managed as a trust on behalf of the public and future generations. Or, through cultural practices and traditions, it can be treated as a sacred gift of nature, as Indigenous Peoples often do. Or specific and limited use rights can be allocated to people in various ways, as farming collectives and conservation easements often do. That is also the purpose of the suite of Creative Commons licenses.
These alternatives to straight-up property rights are generally seen as aberrations in Western property theory, however. This chapter explains the different social relationships and political order that commoning seeks to institutionalize, and describes how these may clash with property law and the premises of capitalist markets, modernity, and liberalism. The established norms of property ownership are hard to escape, but many commons—through legal hacks, vernacular traditions that function as a kind of law, and relationalized property—are showing that there are different ways to order the world.
Libertarians and free-market champions like to argue that private property rights are a natural if not God-given entitlement. They tend to argue that theirs is the only legitimate system of property law, and that collective property rights are economically impractical, politically oppressive, and morally suspect. Some people claim that a legal regime of private property is a universal moral imperative.
This amounts to ideological bluster. In reality, the scope of property rights varies immensely from one culture to another, and even within one culture’s history (not to mention within a culture at a given moment, which may host multiple types of property!). Let’s keep in mind, too, the sly deception that the very term “private property” advances. It often serves as a euphemism for commercial and corporate property, a far larger, more powerful and problematic creature than personal property associated with individuals and households.
Property law articulates a particular social order, enforced through law, finance, and state power. Property rights do not arise naturally, as the great Digger leader Gerrard Winstanley noted in 1659. They are the result of conquest: “For the power of enclosing land and owning property was brought into the creation by your ancestors by the sword.” A Goethe poem, “Catechism,” makes this clear in a conversation between a teacher and a child. “Bethink, thee, child! Where do those gifts come from? Something from yourself alone cannot come.” The child replies that they came from Papa, and that Papa got them from Grandpapa. But where did Grandpapa get them, the teacher asks. The child responds: “He took them all.” The simple appropriation of things—perhaps with sophisticated legal doctrines to serve as justifications after the fact—is arguably the real origin of many property rights.
To be sure, sometimes people affirmatively choose private property regimes without a full understanding of the larger social ramifications. For example, a generation ago, many Indigenous Peoples in the state of Alaska embraced the idea of administering their traditional lands and resources through “native corporations.” This shift led to mismanagement of natural resources, corruption, inequality, and, in some cases, outright dispossession, as outside investors bought up lands now treated as commodities, not sacred inheritances. Similarly, the estate of Dr. Martin Luther King Jr., run by his children, has treated his writings, images, and audio recordings as commercial properties to be sold to the highest bidders, ostensibly to support the preservation of Dr. King’s legacy. The King estate has even claimed a copyright in the iconic “I Have a Dream” speech and once licensed its use to a telecom company for a television and print ad campaign.
Private property rights serve all sorts of useful purposes, of course, and over the course of history have served to emancipate people from the tyranny of kings, aristocrats, and authoritarians. But it is also true that private property law can be a nasty form of oppression and coercion in its own right—indeed, a singularly useful tool for achieving enclosures.
Centuries after his death, the theories of the seventeenth-century political philosopher John Locke continue to hold sway over our imaginations and social order. His writings provide a powerful moral logic and legal justification for individual property rights—and for market enclosures.
Locke starts with the idea that human beings are isolated individuals with sweeping rights of personal entitlement to resources based upon the labor they invest in developing them. This is Locke’s “labor theory of value.” It was his attempt to emancipate people from kingly dominion. He wanted to empower a growing class of businessmen to have greater freedom in commercial and civic matters. The idea was to challenge the power of monarchs and aristocrats and to justify the power of individuals to exercise absolute dominion over “their” property through the marketplace.
Locke’s theory of property merits our attention because it still sets the framework for how we see and justify property rights. If the labor that we expend in discovering or improving a piece of land entitles us to own it, then that land is seen as “undeveloped.” It belongs to no one and is therefore free for the taking. This was a convenient idea for seventeenth-century European explorers eager to seize the riches of the New World. By the logic of Locke’s philosophy, such lands should be considered terra nullius, or empty land (sometimes referred to as res nullius, or a nullity), because, under this theory, land becomes valuable only as individuals apply their labor and ingenuity to improving it and making it marketable.
It is Locke’s conceit that nature is an inert object that can be privately owned without regard for its connections to its existing inhabitants or larger natural ecosystems. Thus even though Indigenous Peoples and peasants have managed land, water, fisheries, forests, and other natural systems as commons from time immemorial—without formal legal titles—Western imperialists have taken comfort in the legal fiction that the land doesn’t belong to anyone—so we can march right in and take it! In this way, Locke’s theory of private property deliberately ignores the prior use rights and customs of Indigenous Peoples, the rights of future generations, and the inherent needs of nature itself. Using Lockean logic, it has become customary to talk about oceans, outer space, biodiversity, and the internet as if they too are resources that belong to no one. The logic of res nullius justifies unchecked private plunder.
Tellingly, Locke added a brief qualification to his theory stating that any private appropriation is limited to “at least where there is enough, and as good, left in common for others.” He raises an awkward issue that is too obvious to ignore: the exercise of private property rights may encroach on and even destroy wealth that morally belongs to everyone. In other words, there is an unresolved tension between private property and the commons.
This “Lockean proviso,” as it is often called, is mostly treated as a symbolic, throwaway gesture, however. Philosophers and legal scholars may invoke it to show their intellectual rigor, but in practice, politicians and the investor class don’t care a whit about honoring it. Transnational bottling companies are still sucking groundwater supplies dry without leaving enough, and as good, in common. Agricultural-biotechnology companies are still marketing proprietary genetically modified crops that destroy sustainable seed sharing. Industrial trawlers are still overexploiting ocean fisheries to the point of exhaustion, dispossessing small coastal fishing communities. Whatever one makes of his proviso, Locke’s singular intent was to justify private property, not assure the longevity of the commons.
In this tradition, private property laws continue to ignore or criminalize commoning. A commons isn’t seen as “adding value” in a Lockean sense, and therefore it is not granted property rights protection. This logic helps explain how the “freedom” of private property is invoked to dispossess commoners. Whether it is the colonial appropriations of land, forests, and minerals in the Global South, or modern-day seizures of genetic knowledge or Indigenous design, the Lockean analysis is the preferred moral justification for modern capitalism and its enclosures.
As a number of commons scholars have noted, capitalism is about the engineering of scarcity. To maximize profits and market share, businesses deliberately create scarcity by finding novel ways to limit supplies or access to resources—and then use law to protect their ownership. Copyright and patent law, for example, take resources that are cheap and easy to reproduce—information and knowledge—and deliberately give limited-term monopolies to authors and inventors whose creativity is presumed to be wholly novel and original. The ag–biotech industry likes to create sterile, genetically modified seeds so that farmers have to keep buying them year after year. This is how the natural bounty of the earth is converted into artificial scarcity.
By contrast, commoners deliberately strive to engineer a system of abundance. By “abundance,” commons scholars such as Wolfgang Hoeschele and Robert Verzola don’t mean unlimited supplies for unlimited human appetites—the premise of market economics. They mean plentiful, renewable supplies for what we really need. A prime example is permaculture, which emulates ecosystems by growing crops that self-regenerate, help other life forms flourish, and produce little if any waste.
Rousseau famously wrote, “The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.” The Lockean proviso shrewdly nods at this undeniable truth, but the Lockean theory of property rights in effect overrides it and renders it null. The proviso virtually guarantees that in real life, beyond the reach of windy chambers of philosophical debate, there will not be enough, and as good, left in common for others.
One person’s property rights invariably end up affecting another person’s property rights; everyone’s freedom cannot be limitless. Some sorts of effective, mutual agreements are essential. Indigenous cultures help us see that Western conceptions of property tend to minimize or deny the larger impact of property on nature and other people. We moderns presume that humans can commoditize water, land, genes, and other elements of nature as if they are merely objects that can be treated in isolation from their context.
Private property rights are not necessarily hostile to functioning commons. Indeed, I believe the two can be mutually compatible and even work hand in glove. Examples include land trusts (“private property on the outside, commons on the inside”), digital texts and music (copyrighted by the creator but made legally shareable via fair use rights and Creative Commons licenses), and cooperatives (market enterprises owned and managed by co-op members for their own benefit and, if so motivated, for the public good and nature).
While commons and markets can theoretically play nicely together, historically businesses start to flex their muscles as market players, leveraging their money, legal privileges, and political influence. Once a resource is legally recognized as property, the door swings open for markets to set prices and harness the property for money-making purposes. Investors consider this a great advance because they regard market prices to be the supreme indicator of value. People are said to maximize their individual, rational self-interests through the price system and market exchange, and the collective good mysteriously manifests itself through the Invisible Hand. Standard economics presumes that markets are more efficient and fair in allocating wealth than governments—so the best strategy for managing wealth is to privatize and marketize it.
The truth is that this market-based governance is a disaster in the real world. Setting aside the price distortions that flow from concentrated, anticompetitive markets, the price system typically fails to account for all sorts of value that is external to the marketplace. For example, price cannot easily represent types of value that are subtle, qualitative, long-term, and complicated—precisely the attributes of nature. What’s the market value of the atmosphere? Of a clean river? Of babies born without pollution-induced birth defects? Markets have trouble answering such questions because there is no meaningful market price for such things.
Price only measures exchange value, after all; it doesn’t really measure use value, let alone cultural, ethical, or spiritual value. And so the grand narrative of conventional economics celebrates Gross Domestic Product as the height of human progress by totaling the value of all market activity. It doesn’t really care if that activity is truly beneficial to society or not. In fact, it doesn’t even ask that question! Instead, GDP just measures if money has changed hands, which is its moronic definition of wealth creation. By this reckoning, oil spills, nuclear disasters, and plane crashes should be considered good, because they usually end up stimulating economic activity.
Ida Kubiszewski, Robert Costanza, and a team of other economists vividly demonstrated the shortcomings of GDP in a 2013 study of the net social benefits of economic activity in seventeen countries, representing 53 percent of the world’s population. Using a new index, the Genuine Progress Indicator, or GPI, they explicitly took into account dozens of factors that GDP ignores, such as negative activities like crime, pollution, and social problems as well as positive nonmarket activities such as volunteering and household work. Their conclusion? The costs of economic growth globally have outweighed the benefits since 1978! By coincidence, this year was also the point at which the global ecological footprint of human activity exceeded global biocapacity. Despite a three-fold global increase in GDP since 1950, life satisfaction in nearly all seventeen countries surveyed had not improved significantly since 1975.
John Ruskin called the unmeasured, unintended harms caused by markets “illth.” The problem with the price system, as yoked to private property, is that it generates as much illth as wealth—but hardly any of this illth gets counted. It’s off the books. A company’s bottom line and a nation’s GDP reflect only the monetized wealth generated by markets. They deliberately omit the nonmarket illth. The actual cost of illth is borne mostly by commons as markets take what they can from nature, for free, without acknowledging its actual value (because nature is seen as res nullius). Once profits have been taken and privatized, markets then dump their wastes and disruptions back onto the commons, leaving commoners and governments to mop up the mess.
As mentioned earlier, this might be called the “tragedy of the market”—the unmetered, hidden subsidies and costly “externalities” that markets, in the service of private property, impose upon the commons. This outcome should not be surprising in a society that looks to price as the highest, most reliable metric of value. If a resource does not have a price or property rights, it naturally will be regarded as “not valuable” or “free for the taking.”
No wonder prices for fish or timber will generally not reflect the actual value of lower-order organisms and the complexities of natural systems, even though they are essential to growing fish and timber. Market externalities are easy to ignore, too, because they tend to be diffused among many people and across large geographic areas. No individual or locality can take effective action against air pollution, say, or against pesticide residues in food.
For all these reasons, a system of stewardship is more likely than ownership to take conscientious precautions to prevent harms. While “stewardship” might be criticized as anthropocentric hubris (“how can humans presume to manage the earth?!”), stewardship in a commons is based on living in a web of respectful relationships, including with earthly systems. Conventional ownership, by contrast, is based on “what’s in it for me?” Markets tend to care primarily about financial returns, and see everything else (working conditions, product safety, ecological concerns) as secondary and discretionary. The signals communicated by prices are often too crude and impersonal to alter management practices.
But in a commons, the structural pressures to earn money are much lower. People are motivated to take subtle, long-term factors into account. When the very identities and cultures of commoners revolve around conscientious peer stewardship, a “resource” is seen differently. It becomes “care-wealth,” which points to a very different type of relationship. Geographer Neera Singh notes how commoners in Odisha, India, sustainably steward their local forests through their “affective labor.” Their traditions, family lives, and personal memories are all wrapped up in taking care of the forest. Thinking of it as a mere resource is inconceivable.
In the face of climate breakdown and growing inequality, it’s imperative that we begin to think about how we might subordinate property rights to human and ecological needs. We have to neutralize the power of tradeable property and prevent its owners (corporations, investors, speculators) from dictating how nearly everything may be used.
In our book Free, Fair and Alive, Silke Helrich and I outlined some fundamental dimensions of property law that need to be rethought if commons are to have legal recognition and support. We need to start by acknowledging that property is relational and not just an object. Control of land and houses and bicycles is not just a matter of control over those objects; property law is a system of control over people and what they may do and under whose terms.
What’s needed are some new conceptions of property that acknowledge the importance of custom, vernacular practices, ethical norms, sacred places, and historical memory. Above all, in the coming Ecocene era, the elemental imperatives of planetary ecosystems must be honored at bioregional and local levels. Right now, these rights are generally vested in owners, who in the classic liberal tradition of the eighteenth century are authorized to assert absolute, individual dominion over “their property.” As property absolutists use their rights to grow and accumulate capital, destroying the atmosphere, oceans, and land upon which we all depend, it’s time to develop a new suite of property rights that are fundamentally relational. We need categories of law that recognize use rights as much as ownership and the role of customary practices and local culture in protecting ecological systems.
It’s important to note that the commons is not simply a mirror image of private property. The commons is not “non-property,” as some have claimed, because “non-property” amounts to the “free-for-all” or “no-man’s-land” that Garrett Hardin mistakenly saw as a commons. The commons is not another variant of property in liberal political theory; its character is quite different, most notably in being informal and vernacular. Formal law may or may not be helpful in securing collective control of care-wealth, but a culture of commoning is indispensable.
In the deck chairs example, the “legal system” that governed how people could use the chairs was entirely social. People tacitly negotiated and observed a certain set of rules. There was no formal statute or private contract spelling out how a passenger must behave. The system was all based on a social understanding, an instance of vernacular law. A coffeehouse or bar may be privately owned, but its social character and tone are largely defined by the customers/commoners, not necessarily the owner.
It is entirely natural for people to organize and enforce their own rules informally, or to follow unwritten etiquette as a matter of custom. Most Americans implicitly understand that if you want to buy movie tickets at the box office or hot dogs from a sidewalk vendor, you queue up in line. That’s considered the fair and orderly way to gain access to certain limited resources. “First come, first served”—a rudimentary social protocol for certain everyday circumstances—is particularly effective because it is self-organized and self-enforced. Unlike transient social situations, commons are a kind of institutional form with ongoing consensual practices and ethical norms. These standing arrangements enable commoners to pursue shared goals, keep their community intact, and protect their care-wealth.
An important legal concept for making vernacular law work is inalienability—the commitment that certain things are not for sale, ever. In a commons, it’s vital to prohibit market exchange for certain things, whether at the macroscale like the atmosphere, the Amazon rainforest, DNA, and human organs, or at the microscale of social relations and access to local care-wealth. When everyone depends on preserving such living systems, there are strong ethical and ecological reasons for not treating these things as commodities. “Green capitalism” purports to solve various environmental problems by expanding property rights and markets into new frontiers of nature. But there is increasing evidence that carbon offset markets, the forest protection scheme known as REDD, and other financialization schemes are not effective. Adrienne Buller brilliantly documents their failings in her book, The Value of a Whale. Keeping something legally inalienable is a far better strategy because it prevents captalists from appropriating and privatizing nature and governing through markets. The long-term integrity of shared wealth can be protected.
Once we declare something inalienable, we need to invent some new categories for property law to support noncapitalist behaviors such as sharing, cooperation, costewardship of community wealth, and practices of social solidarity. The point is to cultivate novel (and ancient) socio-legal schemes that facilitate “other ways of having.” There is no need to default to the domineering and submissive roles that ownership generally entails. An inspiring initiative in this regard is recent laws granting legal rights to nature and special legal provisions for “self-owning land” (in which nature is assigned legal trustees and guardians). Some countries, such as the United Kingdom, have expansive “right to roam” laws that permit people to swim, hike, and camp on private land. Open source seeds are a great example of relationalized property. Seed breeders and activists around the world are developing a new class of seeds that are legally “shareable,” and protected against patent ownership. The goal is to prevent large multinational corporations from privatizing this biowealth and monopolizing the seeds for certain crops (for more, see page 198).
Open-source software is the classic form of relationalized property—something stewarded by a participatory community without the impediments of property boundaries. But consider the federated wiki, a platform for collaborative content. Ward Cunningham, the inventor of the wiki software, was distressed to see how conventional wikis often stymie collaboration because editors must intervene in flame wars and decide which point of view to publish. The federated wiki solves this problem by enabling anyone to have their own wiki site, but all wikis can be structurally interconnected, or federated, with other wiki sites. This means that all voices can be heard in their rich, authentic diversity, each on their own site, while making all content available in an open, federated “neighborhood” of content. A consensus of viewpoints can surface—or not—without quashing one or another perspective. Everyone’s wiki content is both individual and relationalized property.
This is where we should be headed with property law—to expand and enrich social relationships, rather than entrenching concentrated and commercial property. Property rights should not solely privilege owners because nonowners, through their practices of nonmarket care and stewardship, also generate great value. (By the lights of market theory, however, this value is dismissed as an “externality.”)
Developing new forms of relationalized property is clearly an ambitious and complex goal. But in a world in which countless commons around the world are already struggling to develop workarounds to conventional property law, it makes sense to step off in new directions to reinvent law that can support commoning.
Just as modern property law has an implicit social order built into its very categories of thought, so capitalist finance is similarly rigged. It privileges libertarian individualism, material extraction, and market exchange. It seeks to maximize economic growth and capital accumulation for corporations and investors. Unfortunately, this model and the massive financialization of the global economy that has occurred over the past forty years is driving a massive extraction of value—from the Global South, communities, households, and the environment. It has produced great inequality and driven generations of colonialism and social and racial servitude.
Is there a meaningful alternative? Some of us are advancing the idea of relationalized finance as a new conceptualization of finance to support noncapitalist relationships and wealth-creation via commons. Relationalized finance involves the pooling of funds by participating commoners and allies to support the development of commons. It also entails the “transvestment” of money from capitalist circuits of value to commons-based systems. While this might be interpreted as “gifts” and do-gooding, it can also be seen as investment and in-kind support for an alternative theory of value-creation. Strong commons governance assures that money accrued through relationalized finance won’t be reappropriated by market players; the care-wealth will remain inalienable.
Relationalized finance is already a reality in notable examples such as community land trusts for agriculture and affordable housing, and CSA farms that serve local communities with organic food. Similarly, complementary local and neighborhood currencies let communities capture the value they create. Platform cooperatives let workers and consumers mutualize benefits on their own terms rather than submit to the demands of investors and lenders. The language of relationalized finance is not widespread at this time, but many projects nonetheless decommodify shared assets, rely on peer governance, and cultivate relations of commoning. Relationalized finance is the logical next step.
While commons may need to rely partially on conventional debt or equity, their goal is to decommodify their shared wealth so that they can become independent of outside capital and market pressures. The point is to avoid the need to maximize profits, manage people in hierarchical organizations and productivity-driven jobs, or cater to competitive markets. Relationalized finance attempts to bypass these pressures at the cellular level by using commoning to provision what is needed. Why pay costly tribute to capital or wait for the state to tax and redistribute the spoils of market exchange (with its associated politics, inefficiencies, and corruption) when commoners can do things themselves, directly, with help from relationalized finance?
This approach makes it easier for commoners to meet their needs outside of markets while retaining significant self-determination. The mutual support and provisioning achieved through commons—for affordable, high-quality farming, food, housing, and services—is precisely what markets often do not wish to support. To be sure, there are many time-tested types of progressive finance such as public banks, social and ethical banks, and cooperative finance doing a great deal of good in the world. Relationalized finance seeks to go a step further by reframing the very logic, purpose, and language of finance so that commons can more readily flourish.
David Bollier at david /at/ bollier.org | New Society Publishers