All Ownership is Conditional
April 22, 2011 — Poor Richard

All property ownership is conditional, and it always has been. This thousands-of-years-old legal doctrine is seldom appreciated or understood by modern activists, politicians, economists, or even by lawyers.

Some think private property is the cornerstone of civilization. Others criticize the institution of private property, finding in it the root of all evil. They may hold the institution of private property responsible for all manner of social injustices and environmental ills. The alleged evils of private property are often attributed to the underlying legal system in which property ownership is established and enforced. Sometimes it is argued that private property should be abolished and/or that alternative legal frameworks, such as a “law of the commons” need to be established through legislation.

But the law of the commons and the doctrine of conditional ownership are already fundamental parts of our legal system, and have been since remote antiquity, leading me to think that our problems are less structural than maybe cultural or psychological… http://almanac2010.wordpress.com/2011/04/22/all-ownership-is-conditional/

James Quilligan wrote: “…the new duty of the state would be to confirm the declarations of the rights of people to their commons, allowing them to manage their own resources by recognizing and upholding their Social Charters and Commons Trusts.”

I’m not sure how this really differs from current legal and social practice.

Massimo De Angelis wrote: “Commoners first think not of title deeds, but human deeds: how will this land be tilled?”

People who hold title to property seldom think twice about the title in their ordinary daily routine.

Massimo De Angelis wrote: “…commoning, being independent of the state, is independent also of the temporality of the law and state. It goes deep into human history…“commons” rights differ, in their constitution, from legal rights such as “human”, “political” or “social” rights. In the latter sense, a “right” is a legal entitlement to have or obtain something or to act in a certain way.”

Law arises from social relations at many levels, including family, peer-group, and community–not just the state. The formality of the arrangements may range from vague custom enforced by peer pressure to written codes enforced by some legal jurisdiction. Its just a difference in degrees. People are often glad of legal jurisdiction when they have disputes. Nothing keeps me and my friends from squatting on some land in the wilderness more than the lack of protection we could expect for the improvements we might make.

Regardless, a great variety of human interaction with property and nature occurs without much if any “capitalist process” as a central preoccupation.

Both writers, IMO, fail to establish the fundamental distinctions they want to make between commons rights and other kinds of rights. Every kind of social relation has its laws (whether written, spoken, or even unspoken) by which we represent our ideas of fairness, equity, justice, etc. The only distinctions I see are differences in the scope and formality of the relations concerned and the state of mind of the parties. Such distinctions apply from one end of the spectrum of relations, rights, and laws to the other.