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 (), 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.
I would like to ask, what about a state-less property and non-greedy property system?, I agree that perhaps, property as a protection for individual rights to own things like clothes, food or shelter could be useful, in order to let the people survive, but other things as tools or spaces sucha as farms, sports fields, could be declared as common goods by the people who wants them to be free-of-use, stablishing the rights and duties to assure people a well use of them. Am I right, wrong, what do you think?
Bravo Michel!! This is a very important and valuable post. Thanks for writing it.
I assume the opt out relates only to physical property and not immaterial property, which once copied or changed can hardly be put back out into normal proprietary channels without some kind of legal action, or massively complex interactions, which would hinder the whole commons system.
I do not understand your argument Michel. You argue that defined rights are important for protecting the commons. You then argue that the individual should have the right to withdraw ‘his or her’ property from the commons. I presume thus you are not really talking about commons at all but a form of relational sharing of land. Perhaps this is a type of commons, I am not sure. I see it more as a community building strategy (think back yard sharing for food growing) but it does not address the underlying notion of balance you seemed concerned with, though I am not at all sure of what you kind of balance you are trying to get at.
From my perspective legally robust land ownership by the commons a is vital to where the real balance needs to be achieved, that is, removing the means by which private ownership of land pockets the unearned income that comes from the investment of the community (schools, transit, parks etc). This unearned increment concentrates private gain and excludes community benefit being recognized. Moreover it is a major contributor to wealth concentration and poverty creation, all in the name of the sanctity of private property and the freedom of the individual. Meanwhile in a community like where I live in B.C. the poor go homeless and the middle class can hardly make ends meet because of the appropriation of value through private property rights. My worry is the vagueness of your argument and its assumption of individuals maintaining land ownership that can be contributed and withdrawn from whatever kind of commons you are imagining can unintentionally feed this mentality, one which I know is counter to your values and intent.
Here is my view in a nutshell. We must maximize the reclamation of land out of the private property market and place in a commons which is democratically governed by non-profit stakeholders to achieve social, ecological and economic objectives, for example affordable housing, workspace, access to land from renewable energy and food production. The buildings can be private but they must lease the land, with strict covenants embedded in the terms of the lease to ensure community benefits are realized and the ‘market return’ to, for instance, a home owner, is restricted in a way that is fair but insists on ensuring affordability in perpetuity. In this way we can link commons to a blended ownership model that works for everybody. As you know there are many models that are amply demonstrating the value and efficacy of this approach – conservation easements, community land trust, cooperative land banks etc.
Glad you like it , David (de Ugarte)
Let me first respond to Roberth. I agree with you, I’m advocated for commons property, i.e. terra comunes, not terra nullius, as the Romans would say. For example, how did we get a breakthrough for the digital commons such as free software and open design … NOT by denying property, or just continuing with public domain production, but by hacking contract law to create the General Public Licenses and other free and open licenses. It is this working with property, that allowed us to create protected common property.
To Michael Lewis: I fully agree that there have to be multiple modalities, including un-alienable land commons that cannot be privatized. In Germany there is this mittglieder common housing, which I believe allows people to leave and get their investment back; this is what I mean. My concern is that is everything is unalienable, such as in CLT’s, then individuals have no recourse against the collective, and can’t leave the collective. Thus, in that context, specific forms of collective property which allow people to retire and invest their ‘contribution’ to another commons, would insure that freedom of choice for individuals.
In home ownership schemes based on community land trust tenure, people own the house. Same with workspace or commercial properties – they can be owned. However, the lease has covenants built into it the restrict resale. There are many formulas but what all of them ensure is that the earned equity can be fully withdrawn on exit. Most of them will share a bit of the market rise but only to the level to ensure the affordability is secured in perpetuity.
The problem with co-housing from an affordability point of view is they do not separate the land tenure from the house. Therefore there is no way to protect affordability. To participate in such ‘commons’ in Vancouver is expensive. On the north shore a small co-housing condo with only one bedroom goes for over $500,000.
thanks for these precisions Michael!