Common ownership and equality of autonomy.

• Author: di Robilant, Anna
• Position: III. The New Commons and Equality of Autonomy through Conclusions, with footnotes, p. 293-320 - Special Section on Social Movements and Progressive Justice

3. The New Commons and Equality of Autonomy

This section turns to contemporary American property law and shows how the idea of equality of autonomy recuperated from the nineteenth-century European debate on collective ownership is key for expanding and redirecting the commons debate.

1. Equality of Autonomy

   In nineteenth-century Europe, the parliamentary debate on the Tittoni bill that reorganized agrarian collectives set the stage for a new understanding of how property fosters individual autonomy. Today, we need a similar normative reorientation. Our conversation about the potential of common ownership should be expanded to include a similar notion of equality of autonomy. This notion of equality of autonomy should build upon insights from the European late nineteenth-century debate on common ownership, as well as recent debates in political philosophy. It should support equitable access to the means of obtaining autonomy, defined as the relative absence of restraints and the presence of resources enabling individuals to carry out their critically appraised projects and preferences.

   The notion of equality of autonomy that I propose focuses on the means for autonomy rather than on the condition of autonomy. Proponents of egalitarian liberalism are faced with the question "Equality of what?" (124) Some have argued for equality of condition. The argument is that one of the fundamental requirements of justice is that social and political institutions be arranged so as to allow people's conditions to be as equal as possible. Individuals should be made equal in subjective happiness, understood either in terms of hedonic states or preference satisfaction or the good life. (125) However, as many have noted, equality of condition fails as an expression of egalitarian concerns for two reasons. (126) First, it leaves little room for individual responsibility. For example, it requires that we compensate people for having expensive tastes. It fails to acknowledge that individuals should take responsibility for their overall life ambitions and discrete preferences, as well as the social costs of these choices. Furthermore, it minimizes the reward for individual effort. Second, critics have noted that equality of condition "[flails to recognize 'expensive needs': [that is, that] some people may simply not be able to be made 'equal' in any space/metric of 'outcome'," for example, people who are severely disabled or who have expensive medical requirements. (127)

   The concept of autonomy that I embrace is multi-dimensional. It includes negative freedom, positive freedom, and relational self-determination. In their debates, Ferri, Imbriani, and Cencelli envisioned a positive or substantive autonomy. They realized that equal access to the possibility of autonomy requires equal access to land. They also realized that positive action is needed to redress the inequalities that result from private property in a market economy. The positive action that they had in mind was legislation that would reinvigorate a long neglected private-law tool--collective ownership. They had witnessed the failure, in the long term, of land enclosures as a means for achieving a more equal distribution of land. Hence, they came to see the potential of collective ownership. Today, common ownership remains an important tool for expanding access to resources that enable individual autonomy and human flourishing. It can do so better than individual ownership.

   Take housing as an example. Distressed and underfunded, the public housing system often fails to deliver decent homes, a safe environment, and neighbourhood quality. (128) Also, for many, public or subsidized housing is not an option: their income is too high to qualify for most forms of subsidized housing but too low to allow them to enter the private market for housing. (129) By limiting equity and promoting self-government, forms of common ownership such as limited equity co-operatives are effective in securing long-term, good-quality, affordable housing. They are not a substitute for traditional public housing but rather a crucial complement to it. Another form of common ownership, co-housing arrangements, can have important advantages over individual home ownership. These arrangements allow co-owners to share the cost of the mortgage or rent, as well as the cost of utilities, maintenance, and insurance. (130) Further, through co-housing, co-owners can "share the cost of amenities that [they] couldn't afford on [their] ... own, such as a hot tub ... or large yard." Both housing co-operatives and co-housing also make it easier to access other resources. For instance, they allow co-owners to share the cost of basic services such as child care or in-home care. (131)

   Take, as a further example of common ownership, land or water. Standard regulatory mechanisms of land use, such as zoning, have limited effectiveness in preserving land-use diversity, open space, and ecologically sensitive lands in sufficiently large quantities. Mechanisms of private land use and open-space planning based on common ownership, such as land conservation trusts or water trusts, may be an important complement to standard land-use regulation. (132)

   Common ownership can also expand access to leisure goods that are often too expensive to be owned individually. For example, fractional ownership arrangements can bring the luxury of a vacation home or a sailing boat within the reach of many. (133)

   Common ownership not only has the potential to equalize the means for positive autonomy but can also foster an autonomy that is thicker because it is relational. Relational autonomy is an idea that was largely foreign to the world of European late nineteenth-century policy-makers but that has gained prominence in contemporary debates. In recent years, some political philosophers arguing within liberalism have rejected the traditional hyperindividualism of liberal autonomy. (134) They argue that traditional, liberal autonomy assumes that authentic choice happens in an '"inner citadel' of detached, higher-order reflection" and ignores the importance of other persons as sources of dialogue and meaning. (135) These philosophers have responded by broadening the notion of autonomy to include its social or relational preconditions. They suggest that authentic choice can only occur in social conditions that foster certain types of human relationships. (136) Authentic autonomy requires critical reflection on one's own choices, which is more likely to happen in a social and discursive context. (137) Some individuals require the context of answering for their actions. Others require self-respect and self-trust, which emerge within relations of mutual recognition. (138)

   Common-ownership schemes can provide this web of relations. Part of their attractiveness, for those who choose them, is co-owner immersion in a self-governance structure that facilitates human relations conducive to authentic choice. For example, there is vast support in the literature for the proposition that members of affordable-housing co-operatives value involvement in the community and in management of the co-operative for the sense of self-control it brings those members. (139) Notwithstanding this, common ownership may not be for everyone, and the particular relations of interdependence it involves may not be necessary for authentic choice.

2. Equality of Autonomy and the Trade-Offs of Common Ownership

   Designing a common-ownership regime that has the potential to foster greater equality of autonomy involves difficult trade-offs. The notion of equality of autonomy that I propose is grounded in value pluralism. It suggests that common-ownership regimes should promote greater equality in multiple, equally fundamental dimensions of autonomy, namely negative freedom, equality of access to basic material resources, relational self-determination, and responsibility. These dimensions of autonomy are incommensurable and sometimes conflict with each other. In order to increase equality in one dimension of autonomy, it may be necessary to curb another dimension of autonomy. Typically, increasing equality in the positive or relational dimensions of autonomy requires limiting the negative freedom of current co-owners. How do we choose between conflicting dimensions of autonomy?

   In Part I, I discussed two ways that scholars have dealt with these tensions. One is to argue that co-owners have consented to these tradeoffs. The other is Dagan and Heller's "liberal commons" balancing. Both of these responses, I suggested, are unsatisfying. The former raises difficult questions about the economic and social constraints on consent. The latter fails to discuss the hard cases where trade-offs simply cannot be avoided. In this section, I suggest another way to deal with the trade-offs of common ownership. I argue that when we ground the commitment to equality of autonomy in the context of specific resources, the trade-offs of common ownership appear less intractable. The peculiar characteristics of different resources, and the interests that they involve, guide and constrain normative reasoning. Often, it will be possible to balance different dimensions of autonomy. When balancing is not possible, arguments about the nature and the significance of the specific resource for thick autonomy justify equalizing positive freedom or relational autonomy, rather than maximizing negative freedom. (140)

   Designing a common-ownership regime that promotes and accommodates different dimensions of autonomy is a resource-specific design process that involves several steps.

   First, it requires Aristotelian practical reasoning. Gregory Alexander has described this practical reasoning as "fitting and refitting until a sense of complementarity" between the different dimensions of autonomy "is achieved". (141) This fitting and refitting is contestable, but not arbitrary, because it is tailored to the specific...