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Tuesday, December 30, 2014

Common Property and the Commons

Dan Sullivan writes a fairly decent article on the commons based on Henry George which is worth reading critically. Here's the URL. Please read it. He's fine as long as he sticks to exposing Henry George's ideas. But he continually tries to fit them into the 20th century libertarian box which distorts them and also degrades their importance.


Dan Sullivan writes:

"One of the great tragedies of socialism has been the confounding of common rights (natural rights common to each individual) with collective rights (those that have been delegated to the community or its government). Common rights are inalienable, individual rights -- the very opposite of collective rights. Classical liberalism was based on the idea of common rights."

But the problem with this formulation is that this "tragedy of socialism" is also an error of Libertarianism. The reason is that common rights are inalienable, individual rights; but they require collective effort to produce, guarantee and sustain. This seems like a minor quibble until you think about it. But both Libertarians and Socialists are involved in creating a false choice for the rest of us. And that is the focus of this post.

The Right to Free Speech...

Dan starts the article talking about Free Speech. Rightfully concluding:

“The legitimate role of government being to protect these rights, government acts rightfully when it insures that all may speak,..." [commonrights.html]

All may speak because the right to free speech is a common right because it is an inalienable right. It is wrong to suppress speech. Free Speech is inalienable because it is necessary to the function and survival of a commonwealth as a place that protects the rights and meets the needs of it's inhabitants.

So far so good, but then he confuses the concept when he says:

...“but [government] acts wrongfully when it decides, or lets the majority decide, who may speak or what may be said. In doing so, it subverts a common right into a collective right, effectively destroying the rights of those individuals who are excluded.”

This reduces an inalienable right into an absurdist argument about collective versus an individual rights. An inalienable right is a common right. A common right is both an individual right and a collective one. The collective of US have to protect that right. Rights are not "socialist" or "collective" they are inalienable. Inalienable

The point is that an inalienable right is inalienable because when alienated it causes suffering, harm, dysfunction, confusion and blocks good communication and process. Rights like free speech exist for a reason. If you don't let me speak then you might not hear a legitimate criticism or learn something. Also if you don't let me speak and I don't let you speak, I might not hear you when you try to correct my error. We are time-space locked in this world so only one person can speak at a time. So reasonable limits on how much one person can dominate the speech of a forum are sometimes necessary so that one person might not dominate or bully that forum. A forum is a collective affair. How it is governed is the issue. Whether we have well constituted governments that protect individual rights and meet individual needs is always the issue. An inalienable right can be denied and infringed, but it remains a right no matter whether a person, or group, tries to block someone from talking on a forum or merely drags them off. Ultimately freedom of speech is necessary to the sane function of society. Denying it is oppression.

Reductio Ad Absurdum

Thus Dan needlessly reduces the concept of common rights to a socialist versus libertarian argument. In the process he hijacks, subverts and rebrands Henry George's ideas as merely another exposition of libertarianism. Not much different from Ayn Rand or the Austrian School, except that none of it makes sense. Henry George is thoroughly American and he wasn't a Libertarian. He was a pragmatic follower of the concepts of the enlightenment as expostulated by John Locke and other luminaries.

The "People" is a collective construct, so is the commons

The "people" construct is designed to protect the individuals within that construct. "The people" is collective by it's very nature. It is because we are individuals that we band together to protect our individual properties, which include our rights. The rights themselves are inalienable but since they are time-space locked they are not absolute. My right to free speech has to be negotiated with your right to free speech. You can suppress my speech by say blocking my facebook account, but that simply illustrates the importance of free speech as you have now denied, alienated, infringed on my individual right. The reason I have a right to free speech is that when you deny my right to free speech, you not only risk someone else denying your right to free speech, but you also risk me not being able to save you from your own mistakes. Don't listen to me and I can't warn you that a rift just opened up in the direction you are running. Reducing this argument to the absurdist "collective" versus ??? fight is designed to channel Georgism into Libertarian channels.

Common Property Ownership vs. Collective Property Ownership

Dan distorts other Georgist/Lockean ideas in a similar manner. To me "a commons" and "a common property" are tautologies. But Dan tries to conflate the proper government of a common property with it's commons nature. which has specific meaning to him. But "common government of property" is versus private government of property and both can be arbitrary or troublesome. Dan writes:

“A parallel confusion exists between common property and collective property, and the classical liberal concept of common property has been all but obliterated.”[commonrights.html]

The confusion exists because Dan is confused. There is no such thing as a collective land property. All property is either part of the commons or fenced off into private property. A "collective" property is common property managed by some collective government. But when the King owns a commons it is still a common property. A commons can be managed well as a commons, or it can be badly managed. If it is managed as a common property then one can apply concepts that were developed over a long period to managing that commons rationally. The odds of managing a property wisely are improved if one manages it according to such principles. If it is managed poorly it will be treated arbitrarily by it's governors. That occurs whether it is managed by a mob, by a bureaucracy, or by private owners. The management of a commons is it's government. Managing a commons as a common property is a way of governing that property. Over the years the concepts involved in common property have been subverted. And Dan is right to point that out. But in his argument he confuses the thing "the commons" with it's government, and he doesn't clear up the confusion he identifies but instead adds to it. You can see that in the next passage:

"An open park perhaps comes closest to the idea of common property, for anyone has an equal right of access to the park. However, restrictions on what one may do in a park, to the degree that they are arbitrary, render the park a collective property.”[commonrights.html]

If Arbitrary Government is the definition of a collective well I've been misreading my dictionaries. No the point of having a park is that a trustee and the people in trust manage a park for the sake of the general welfare of the commoners who must use that park. A park can be badly governed or well governed, but it is either governed or ungoverned. If it is ungoverned then the people using that park govern that part of it they enter. A park that is ungoverned by anyone comes closest to helping us understand the meaning of the term commons. For John Locke the term was his weapon against Kings. In his Twin Treatises on Government he combats the King with his exegesis on Adam and later on Saul and David:

“§24. In opposition, therefore, to our author’s doctrine, that “Adam was monarch of the whole world,” founded on this place, I shall show”
1. “That by this grant, Gen. i. 28, God gave no immediate power to Adam over men, over his children, over those of his own species; and so he was not made ruler, or monarch, by this charter.” ["]

Locke was responding to claims that the world, or specifically Britain, was rightfully privately owned by the monarch (and the British Aristocracy) when he made this statement.

Locke was arguing for the fact that the whole earth is a commons:

2. “That by this grant God gave him not private dominion over the inferior creatures, but right in common with all mankind; so neither was he monarch upon the account of the property here given him.”

Locke goes on to define the concept of common property. He expands on the above in 99:

“§99. Whatever God gave by the words of this grant Gen. i. 28, it was not to Adam in particular, exclusive of all other men: whatever dominion he had thereby, it was not a private dominion, but a dominion in common with the rest of mankind. That this donation was not made in particular to Adam, appears evidently from the words of the text, it being made to more than one; for it was spoken in the plural number, God blessed them, and said unto them, have dominion.”[ Twin Treatises John Locke]

Locke was asserting that the world is a common property of us Humans using exegesis and reason. So when he asserts that a government maintenance building is a "collective property" he is but misrepresenting the concept itself. The building is a property established by the government and run by the government for some purpose.

“A government maintenance building, on the other hand, is truly a collective property. Nobody is granted a right to trespass except on government-sanctioned business. This is another distinction blurred by socialists, who refer to "common property," but who propose to put that property under the control of governments, collectives, and majorities.” [commonrights.html]

In my time, most of the time I can visit my government maintenance property freely. But it's not treated as a commons because it is property in use for a specific purpose of the government. It might be part of a commons. There is a stream behind the one in my area that if I were a little one I could float boats down. Both Forests and maintenance properties are part of the commons but they are governed differently.

The reason we had a concept of "common property" was to rationally manage the commons. A property can be privately owned, collectively owned, and still be a commons. So the right way to manage a commons is to run it as a common property. This isn't a matter of "collective versus tyrannical" in both cases you end up with a dictator keeping some people from having a right to own property. An open park is a commons and should be operated as a common property for reasons of principle. No matter who has the title. Mr. Sullivan even gets the history of the commons wrong:

“Prior to the degeneration of common-law communities into feudalism, land other than royal estates (government property) was held, not collectively, but "in common." This meant that any person had a right to take up land and use it, and in so doing, hold it in his exclusive possession for as long as he continued using it. The limit to this right was that he could not hold land out of use, nor take up so much as to deprive others their own right to similarly take up land. "Lords" (literally "great people") were given responsibility to serve as land stewards, and to settle disputes over access to land. (The royal family name "Stuart" is an early spelling of "steward.")”[commonrights.html]

Origins of the Commons

The above is slightly off. Common-law communities were always under the dominion of a King and the lords of the dark ages and middle ages were either his fiefs, or tried to make themselves co-equal with their king. Common law was a German (and maybe Celtic) inheritance that involved tradition law and judges who interpreted traditional law using "common sense." Unclaimed land belonged to the King (or was fought over by multiple Kings or lords) and the folks who lived there created common law to govern those properties with the cooperation of "ordinary magistrates" who were often members of the aristocracy or clergy but was an innovation of the Anglo-Saxons that enabled common law to function without becoming despotic law. In England the best way to govern commons was to hold them in common. This represented best practices in Europe where the alternative in most countries was between despotic ownership of property and an anarchic ownership that usually destroyed the property. As the Sierra club article notes in it's refutation of Gareth Hardins BS about the "tragedy of the commons":

“For this widely cited oversimplification, Hardin offered no evidence. In fact, many historic commons were better managed than their privatized successors. Native Americans used the commons of the Great Plains for millennia; private farming nearly blew it away in a generation. The English countryside commons of the 17th century harvested, sustainably, a huge variety of resources. Its replacement, the enclosed sheep pasture, was plagued by overgrazing. The English commons was not privatized because commons management had failed, but because landlords wanted to monopolize it for their own gain—and enclosure accomplished their goal.”[]

The Rights of the Collective derive from the rights of the Individual & Vice Versa

His Master Henry George and Locke could clear Mr. Sullivan's confusions if he'd just stop trying to fit George's round and clear ideas into the square peg of libertarianism and just be true to his and Locke's vision:

Derives the right of common property from the fact that we people have property in ourselves:

26. “Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody has any right to but himself.” [commonrights.html]

Henry George Comments:

“Locke was not in error. The right of property in things produced by labor—and this is the only true right of property—springs directly from the right of the individual to himself, or as Locke expresses it, from his "property in his own person."[]

And Henry is segueing off of this passage from John Locke which continues:

“The “labour” of his body and the “work” of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this “labour” being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.” [commonrights.html]

All rights derive from individual rights. And we form communities and civilizations to protect ourselves and our rights because those rights in turn flow from our need to survive, to thrive, to pursue a livelihood and happiness.

So land is an individual right and is common because it is an individual right. Henry George is in the Lockean tradition:

“It is as clear and has as fully the sanction of equity in any savage state as in the most elaborate civilization. Labor can, of course, produce nothing without land; but the right to the use of land is a primary individual right, not springing from society, or depending on the consent of society, either expressed or implied, but inhering in the individual, and resulting from his presence in the world.” []

If the world were empty of people save one, that person would own all the world. But when the world is full of people we have to share:

“Men must have rights before they can have equal rights. Each man has a right to use the world because he is here and wants to use the world. The equality of this right is merely a limitation arising from the presence of others with like rights. Society, in other words, does not grant, and cannot equitably withhold from any individual, the right to the use of land. That right exists before society and independently of society, belonging at birth to each individual, and ceasing only with his death. Society itself has no original right to the use of land. What right it has with regard to the use of land is simply that which is derived from and is necessary to the determination of the rights of the individuals who compose it. That is to say, the function of society with regard to the use of land only begins where individual rights clash, and is to secure equality between these clashing right of individuals.” []

The commons exist to adjudicate individual rights where something cannot be safely divided up.

“What Locke meant, or at least the expression that will give full and practical form to his idea, is simply this: That the equal right to life involves the equal right to the use of natural materials; that, consequently, any one has a right to the use of such natural opportunities as may not be wanted by any one else; and that the result of his labor, so expended, does of right become his individual property against all the world. For, where one man wants to use a natural opportunity that no one else wants to use, he has a right to do so, which springs from and is attested by the fact of his existence. This is an absolute, unlimited right, so long and in so far as no one else wants to use the same natural opportunity. Then, but not till then, it becomes limited by the similar rights of others. Thus no question of the right of any one to use any natural opportunity can arise until more than one man wants to use the same natural opportunity. It is only then that any question of this right, any need for the action of society in the adjustment of equal rights to land, can come up.” []

We have to share our toys. That is the essence of commonwealth. And that right is founded in labor.

“Thus, instead of there being no right of property until society has so far developed that all land has been properly appraised and rented for terms of years, an absolute right of property in the things produced by labor exists from the beginning—is coeval with the existence of man.” []

Thus we have commons and commonwealths for the sake of all of us together.

“In the right of each man to himself, and his right to use the world, lies the sure basis of the right of property. This Locke saw—just as the first man must have seen it. But Mr. Spencer, confused by a careless substitution of terms, has lost his grasp on the right of property and has never since recovered it.” []

Extrapolating from General Principle

All land property and interconnected properties such as communications, transportation and power transport are also by their nature commons. Commons is an identity not merely a construct. And while modern infrastructure didn't exist when the concept of the commons was developed. System theory is as much the product of common sense as the concepts that went into Common property ownership of lakes, rivers, forests and mountains, and they are analogous. The property constructs are the elements divided into nodes, connections, fenced off sub-divisions and private holdings. The commons is the parts that cannot be divided or that must be managed by collaboration. When a commons is divided and fenced it loses it's property as a connected, interlocked, resource available to all as they need. Essentially what makes a commons a commons is that it has many dependent elements. A forest is a commons and so is an electrical system. And for the same reasons that land is.

But that is a topic for another blog post. This one was just explaining why Sullivan's post is very good, but very misleading. The collective is a term invented in the late 20th century to setup a strawman argument pitting group behavior against individual behavior. The opposite of collective government is aristocratic/monarchal government. A Mixed Government republic seeks to use principles of democracy, republicanism, Federalism and commonwealth to govern justly under rule of law.

Stronger Together in Commonwealth

But we also are stronger together in commonwealth. We don't just band together because otherwise we'd own the whole thing. But also because we are better off together. Locke Also says:

“21. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us: “A liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws”; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of Nature.” [ Twin Treatises John Locke]

A commonwealth is neither a "collective" (whatever that is) nor an aristocratic construct, but as Locke describes it.

Further Reading

Sullivan's post:
My Earlier thoughts on the Same subject on another blog at "Fraught with Peril"
Anglo Saxon Law:
Sierra Club:
Related Articles:
Commonwealth According to Locke
Twin Treatises John Locke (Actually my copy is a PDF)
Supporting posts on Locke, Spencer and Burke:

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