Should commons be non-property ?

There is a strong tendency in contemporary thought, to be anti-property and to define Commons as being non-property.

For example, in this otherwise excellent keynote of Yochai Benkler at the Ouishare conference of 2016 ([1]), listen to the first ten minutes, it would seem he counterposes the commons against the idea of redistributing property, seeing property as inevitably tied to its concentration and hence to oligarchy. This argument is also made by Negri/Hardt in the Empire/Commonwealth trilogy and more recently, in the book, Commun by Dardot and Laval.

I do not agree with this tendency and would like to explain why.

If we look at the enclosures we see that people’s with no property or common property, were considered to have no property (terra nullius) and were therefore appropriated, as were the lands of the indigenous people colonized by the West. This is also often done with immaterial resources such as knowledge and culture, which are appropriated and then copyrighted or patented (the biopiracy of traditional Indian seeds for example). We also have the very strong tradition of totalitarian state-socialism, where so-called collective public property created absolute power in the state and its managerial class. Although property was the instrument of monopolisation by private or state forces, non-property was clearly not a protection against this.

On the other hand, if we look at the successes of the contemporary commons movement, in free culture, in free software, in open design; and the relative success and staying power of cooperative ventures, they are all done by ‘hacking’ property or distributing property. The GPL license for free software is a form of common property, protected by law; Creative Commons similarly protect the sharing of cultural goods by law. In the case of cooperatives it is done by distributing shares and guaranteeing one share, one vote.

What this tell us is that actual property-based and law-based protections are absolutely vital for the commons, and hence, the commons should not be counter-posed in a simple way to private or state property as non-property, but rather as a new form of property.

There is another very important issue, which concerns the balance between individual and collective power. It is very common for collective property to be hijacked by elites within the community. In such a context, if there is no protection of individual property, it is very easy for power-over, in the name of the community but in fact by an elite within the community, to develop power-over instead of power-with.

This is why it is so vital to develop redistributed individual property. In free software and open source, the individual can contribute or not, can fork or not, but his access to the resource is always guaranteed, because it is a ‘immaterial’ resource. But for material resources, this is not so easy to achieve, since the resources are rival, it is therefore absolutely vital that individuals retain their sovereignty over the property that they freely allocate to the common projects, but can leave and recuperate as well. This requires strong property protections.

For all these reasons, I would argue that they are actually the condition for each other. A truly free and non-oppressive form of commons can only exist, if individuals retain the freedom to withdraw their support and hence, withdraw their property from the common pool, in order to be free to create another which corresponds better to their wishes. We need to be able to fork material commons, just as we achieved forking in immaterial commons.

Hence, the commons is also property, while at the same time being some form of non-property. In the same way, the collective territorial common good in a commons economy, requires a state, that is at the same time a non-state because it is no longer separate from society. Commons property belongs to a collective or to all, and in this sense may be non-property, but it is at the same time ‘property’ because the constituent parts can be withdrawn.

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