Private Property and Political Power

Common Property: The New Commons

The legitimacy of political institutions in liberal-democratic societies depends upon a clear split between the private and the public sphere. Political institutions protect public interests and private individuals/groups can freely pursue their private interests. In early-liberal political philosophy this was expressed by the concept of property: the state’s exercise of political power is legitimate to the extent that it protects private property and does not interfere with it. However, this image of the split between private/public divide is challenged by the unbridled exercise of private property rights in contemporary economies. Thus, individuals use their wealth to influence the political sphere. In addition, corporations affect public interests to a degree that is usually associated with public institutions. These interpenetrations of private and public sphere challenge the image of a clear split, as well as the legitimacy of public authority that is based on it. Furthermore, these developments challenge the liberal claim that political institutions are well equipped to protect public interests.

While these effects of private individual wealth and corporate power have received much attention, the consequences of practices of common and shared property remain largely neglected. Such an inquiry is needed, as these practices, too, can challenge the private-public divide. As is the case with private individual property, an analysis of this challenge is not only of theoretical, but also of societal relevance. In order to demonstrate why this is the case, I will discuss different ways practices of common property can potentially challenge the private-public divide.

Property rights are rights to things. Honoré (1987) identifies ten such rights, namely the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, and the incident of residuarity. When someone holds all of these rights, she is a full liberal owner (ibid.). When liberal theorists treat property and ownership, they usually refer to private, individual, full ownership. Here, only one person is the holder of rights. In practice, however, different property rights to a single thing are often distributed over multiple persons or entities. Thus, a tenant may have the right to possession and use, but only her landlord has the right to sell the house. In these cases, ownership is fragmented (Grey, 1980; Honoré, 1987).

Shared and common ownership is something else again. In such practices, multiple persons hold the same property rights. In common property regimes (CPRs), everyone shares the same set of rights to a thing. Elinor Ostrom (1990) has extensively researched CPRs in the context of agriculture and natural resource management. Examples include commonly owned fisheries, irrigation systems, meadows, etc. Community owned amenities, such as libraries and parks, are another example of CPRs. If the relevant group holds all the rights and incidents in Honoré’s bundle, they are full owners, but not individual owners. In practices of shared property, on the other hand, different property rights are held by different (sets of) persons. Examples of this kind abound in the sharing economy. MudJeans, for example, is an organisation in which members can lease a pair of jeans. After returning it, the pair will be used by another member (MudJeans, 2017). The rights to use and possess this pair, then, are shared by the members. However, the right to decide whether the pair needs to be recycled or sold, belongs with the corporation.

These practices challenge the public-private divide in different ways. They all challenge the notion that public institutions are best suited to protect public interests. They may do this in a positive way, by proving better able than public institutions to promote certain public interests. Community owned libraries, for example, have more possibilities to identify and act on the interests of their members than public institutions. This is because they have a smaller number of members and they only have to satisfy their wishes and not the wishes of everyone in the democratic society. Moreover, there is more room for participation at the commons level than at the level of public institutions. With regard to the latter, citizens can participate in elections, but these opportunities are few and far between and they do not allow people to express their detailed views on a single issue. In local policy contexts, citizens may have the opportunity to engage in policy co-creation, but this is very rare indeed (ProDemos, 2016). By contrast, members of commons organisations can participate by deliberating and deciding on what to do, and by helping to implement those decisions.

However, these practices can also affect public interests in a negative way. Providing public services through CPRs, such as in the case of the community owned library, may lead to inequalities in the provision of services. And although members of an agricultural CPR may be capable of using their own resource without depleting it, this doesn’t mean that the wider effect of the resource use is sustainable. Extensive use of a meadow, for example, may create gasses that affect our climate and the quality of air. In the sharing economy, we also see that the effects of certain activities stretch beyond their participants. There is a concern, for example, that the possibility to rent out homes through AirBnB is making housing less affordable (Milikowski, 2016). Assuming that public institutions did have the resources to regulate these activities and prevent public interests from being affected, they have no legitimate grounds to do so in classical liberal theory. This is because the classical conception of property entails full sovereignty of private owners over what they own. Public institutions are legitimate insofar as they protect private property and abstain from interfering with it. A person’s spare room, in particular, is usually viewed as private and personal property, almost immune from government regulation. Moreover, public regulation seems undesirable in light of the fact that we want to preserve the freedom of individual agents to act together. Again, this problem challenges the liberal commitment to the split between the private and public sphere, and the rights and duties it associates with these spheres.

Both the positive and negative effects on public interests are examples of far reaching power, that are exercised in the absence of public accountability. This goes against the idea that relying on the private-public ensures the legitimation of political power. The problems associated with individual wealth, corporate power and practices of shared and common property, all suggest that the liberal concept of private property is incompatible with the commitment to the legitimate exercise of political power. They point to the need to develop a new conception of property. This innovation is of theoretical interest, but it is also, as the examples listed above demonstrate, of great social importance. For it might enable us to maintain the great benefits of shared and common property, while avoiding its disadvantages. Therefore, I will research how we should adapt the liberal conception of property, in light of the challenges posed by common and shared property.

This project is researched by Yara.