Common ownership and equality of autonomy.

• Author: di Robilant, Anna
• Position: Introduction through II. The Debate on Collective Ownership in Nineteenth-Century Europe, p. 263-293 - Special Section on Social Movements and Progressive Justice

In recent years, common ownership has enjoyed unprecedented favour among policy-makers and citizens in the United States, Canada, and Europe. Conservation land trusts, affordable-housing co-operatives, community gardens, and neighbourhood-managed parks are spreading throughout major cities. Normatively, these common-ownership regimes are seen as yielding a variety of benefits, such as a communitarian ethos in the efficient use of scarce resources, or greater freedom to interact and create in new ways. The design of common-ownership regimes, however, requires difficult trade-offs. Most importantly, successful achievement of the goals of common-ownership regimes requires the limitation of individual co-owners' ability to freely use the common resource, as well as to exit the common-ownership arrangement.

This article makes two contributions. First, at the normative level, it argues that common ownership has the potential to help foster greater "equality of autonomy". By "equality of autonomy", I mean more equitable access to the material and relational means that allow individuals to be autonomous. Second, at the level of design, this article argues that the difficult trade-offs of common-ownership regimes should be dealt with by grounding the commitment to equality of autonomy in the context of specific resources. In some cases, this resource-specific design helps to minimize or avoid difficult trade-offs. In hard cases, where trade-offs cannot be avoided, this article offers arguments for privileging greater equality of autonomy over full negative freedom.

Au cours de ces dernieres annees, la propriete commune a joui d'un avantage sans precedent aupres des decideurs politiques et des citoyens des Etats-Unis, du Canada et d'Europe. Le nombre de fiducies de preservation de terrains, de logements abordables, de cooperatives, de jardins communaux et de parcs geres par des quartiers est en croissance dans toutes les grandes villes. D'un point de vue normatif, ces regimes de proprietes communes impliquent de nombreux benefices, comme l'esprit communautaire de l'utilisation efficace de ressources peu abondantes, ou la plus grande liberte d'interagir et de creer de facons nouvelles. La conception du regime de propriete commune, cependant, demande des compromis difficiles. Plus important encore, pour atteindre avec succes les objectifs des regimes de propriete commune, il faut limiter la capacite des coproprietaires individuels a utiliser la ressource commune librement ainsi que celle de sortir de l'arrangement de propriete commune.

Cet article a deux roles. Premierement, au niveau nermatif, il presente l'argument que la propriete commune a le potentiel d'encourager une plus grande >. Par >, je veux dire un acces plus equitable aux moyens relationnels et materiels qui permettent a un individu detre autonome. Deuxiemement, au niveau de la conception, cet article avance que les compromis difficiles des regimes de propriete commune devraient etre geres en renforcant l'engagement a l'egalite d'autonomie dans le contexte de ressources specifiques. Dans certains cas, cette conception contextuelle pour les ressources specifiques aide a minimiser ou eviter de durs compromis. Dans les cas difficiles ou les compromis ne peuvent etre evites, cet article offre des arguments pour privilegier une plus grande egalite d'autonomie plutot que des libertes negatives completes.

Introduction I. The Commons Debate A. Antitragedy Views and the Benefits of Common Ownership B. The Fundamental Design Problem of Common Ownership: The Trade-Off Between Different Kinds of Freedom II. The Debate of Collective Ownership on Nineteenth-Century Europe A. Changing Attitudes Toward Collective Ownership B. The Italian Bill on the Reorganization of Land Collective and the Commitment to Equality of Autonomy III. The New Commons and Equality of Autonomy A. Equality of Autonomy B. Equality of Autonomy and Trade-Offs of Common Ownership C. Applications 1. Affordable-Housing Co-operatives 2. Community Gardens Conclusions Introduction

For a long time, common ownership had little appeal in Western liberal democracies. In the collective imagination, common ownership was associated with nightmares of Soviet peasants forced into kolkhozes and deprived of their land, and with homeowners losing their homes to organizations of tenants. (1) Political and legal culture in the United States has been particularly unsympathetic to common ownership. The story of common ownership in America is the story of closing the open, rural landscape of early America. (2) It is the story of courts' reluctance to protect citizens' common rights in tidal water resources. (3) It is the story of the mid-nineteenth-century development of a system of property rights in the California gold mines, earlier treated as a commons. (4) And it is the story of the extraordinary flourish, followed by the failure, of the utopian religious communities committed to communal ownership. (5) The commons were also unpopular among scholars, who were still influenced by pessimistic accounts, such as Hardin's allegory of the "tragedy of the commons" (6) and Demsetz's unidirectional theory of property evolution (7) from the commons to private property regimes.

In recent years, however, common ownership has enjoyed unprecedented favour. The limitations of zoning, taxation, and other public land-use control measures as means for regulation and redistribution have induced policy-makers and citizens to turn to a long-neglected private law tool, common property, with new interest. (8) Community land trusts have experimented with distributing the costs and benefits of land development through common ownership rather than through taxation. Conservation land trusts rely on common-ownership schemes to preserve open space or protect ecological resources. Affordable-housing co-operatives are increasingly seen as successful means for making good-quality affordable housing available to medium- and low-income buyers. Community gardens and neighbourhood-managed parks, where groups of private citizens reclaim vacant urban open spaces as commons, are spreading in US cities.

Scholars have also dropped their "tragic" views. An "antitragedy" view first emerged among political scientists, ecologists, and anthropologists, who argued that Hardin's thesis lacked "historical, theoretical, or cultural veracity." (9) Antitragedy views have now become popular among property scholars as well. Numerous antitragedy articles have appeared in law reviews. (10) The 2011 edition of the Common Core of European Private Law conference was called Commons Core, (11) and the famous Max Planck Institute has established a department devoted to the research on collective goods. (12) Among supranational decision makers, "the [World] Bank is also deeply engaged in, and on the cutting edge of, commons discourse." (13)

That common ownership is in vogue in some circles does not prove that it is the only or the best form of ownership. Contrary to what some might suggest, however, this article argues that common property is much more than a passing fancy. It addresses the questions of why and when common ownership is a good option.

In the new commons discourse, common-ownership regimes hold out the promise of realizing a variety of desirable values: democratic and responsible management of natural resources; participatory production of diverse cultural artifacts and information; and efficient use of scarce resources when changes in prices or transaction costs make private property inefficient. (14) The idea that common ownership could deliver greater economic equality, however, has been largely absent from this new commons discourse. This is a puzzling absence: the word "commons" has always had "a special resonance in political theory," embedded with themes of "equality and inclusiveness". (15) Further, with Occupy Wall Street in the headlines and statistics showing that twenty per cent of Americans control about eighty-five per cent of American wealth, the concern for equality is gaining centrality in the public discourse. (16)

This article argues that common ownership has the potential to help foster greater "equality of autonomy", by which I mean more equitable access to the material and relational means that allow individuals to be autonomous. I turn, for inspiration, to late nineteenth-century Europe, where policy-makers and law professors revised earlier, pessimistic ideas about the inevitable failure of common ownership and instead debated its potential. Their debate stands as a rare moment when conservatives and progressives alike talked about property law in a new way--as a means of equalizing, rather than maximizing, the enjoyment of autonomy. They set aside the focus on protecting the individual owner's autonomy that had characterized property debates since the Enlightenment and the rise of liberalism. Instead, they privileged the idea that collective landownership could make the autonomy that derives from owning land available on a more equal basis. (17)

The notion of equality of autonomy that I propose differs from conventional arguments about the autonomy afforded by property rights in two respects. First, I suggest a different notion of autonomy. The autonomy that most advocates of full property rights have in mind is "negative freedom", that is, the absence of external restraints imposed by the state or voluntarily placed by others. (18) By contrast, the autonomy that common ownership fosters is a "thicker" or multi-dimensional type of autonomy, one that many have proposed in recent debates within liberalism. (19) It involves the availability of means that enable individuals to be autonomous. (20) Autonomy requires, along with negative freedom, positive freedom, that is, the basic material resources (a home, food, education) that enable us to have a meaningful set of options. (21)...