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Property not always an optimal solution?

by Laurent GUERBY Wed Aug 30th, 2006 at 02:43:27 PM EST

After James Boyle on property cognitive bias mainly centered on the bias physical property is having intellectual property, now there's Stumbling and Mumbling on physical property bias:


[...] Indeed, where land is abundant, an efficient solution to the tragedy of the commons might not be private ownership or stinting, but just moving on, as nomadic tribes do.
In this book, Douglass C. North writes:

    Because land commands little value in sub-Saharan Africa, private property rights in land have not become well established and therefore social stratification in rural communities based on land ownership has not evolved as it has in population-abundant land-scarce Asia (p75-76). [...]


And there's more:


This illuminating short paper (word doc) says:

    For much of history - and for much of the world today - individual ownership is not the only type of property right one encounters.  Often groups of individuals - a village, an extended family, a serf and a lord - may share rights to use a piece of property, as with common grazing land.  Such group rights tend to prevail in a variety of situations: where agriculture makes extensive use of land, as with herding; where the cost of fencing or of registering title to land is high; where low land values reduce the benefits from establishing individual rights; and where groups maintain rights to property.

See the blog post for links to documents.

An interesting point of view on one of near-"universally" accepted points, it might well be very relative.

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there is also the concept of usufruct, much neglected these days, in which the farmer or herder is legally entitled to the full and fair value of the product of her labour, but has no "ownership of," in the sense of "licence to destroy," the land.

this is iirc more or less what Cuba has reverted to in order to implement post-Peak sustainable agriculture:  land is held as a commons by the State but the smallholder exercises individual judgment and initiative in farming, and is fully entitled to the land's productivity in usufruct (can market locally, respond to demand, try new crops etc)...  should a smallholder abuse the land or water systems presumably the State can step in to protect the commons.  I'd like to know more about how this is working, as it seems an elegant solution to the conundrum of protecting the biotic commons vs encouraging highly productive and sustainable small scale polyculture farming with a strong sense of personal investment and ownership.

The difference between theory and practise in practise ...

by DeAnander (de_at_daclarke_dot_org) on Thu Aug 31st, 2006 at 06:23:19 PM EST
Yep, also in this vein there's theLand Value Tax.
by Laurent GUERBY on Fri Sep 1st, 2006 at 07:19:21 AM EST
[ Parent ]
This is a neglected diary on an important topic... The idea needs to be recycled into other diaries, for debate.

Those whom the Gods wish to destroy They first make mad. — Euripides
by Migeru (migeru at eurotrib dot com) on Tue Sep 19th, 2006 at 10:41:29 AM EST
We are accustomed to think of "Property" as an Object.

As Bentham pointed out:

"It is to be observed, that in common speech, in the phrase 'the object of a man's property', the words 'the object of' are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words 'a man's property' perform the office of the whole."

In other words Property is the RELATIONSHIP between the Subject Individual, and the Object,whatever that is.

I think that the emergence of the new - indefinite - Property right I call "Open Capital" transcends the conflict between the absolute/ permanent eg Freehold in Land, "Equity" finance in Corporations - and the absolute/temporary eg leasehold land and Debt finance.

I believe that it is possible to package that relationship in a new way - via an "Open" Corporate of which the UK Limited Liability Partnership ("LLP") is the first so that the rights of owenership and use may be divided more equitably.

And through the mechanism of holding "Commons" - like Land and Knowledge - in Trust (eg the US Community Land Trust) we may bring in investors in and users of these Commons through membership of such an "Open" Corporate.

Users of a Commons get to pay a "rental" to Society of course - which is the idea behind the Land Tax.

"The future is already here -- it's just not very evenly distributed" William Gibson

by ChrisCook (cojockathotmaildotcom) on Tue Sep 19th, 2006 at 11:39:08 AM EST
[ Parent ]
To the non-Brit, the whole freehold/leasehold distinction boggles the mind. The more I think about it, and after 18 months of exposure, the more I think it's a brilliant system, except for the little detail that most freeholders are hereditary nobles or institutions that got their freeholds from the Crown, as opposed to "the commons".

Those whom the Gods wish to destroy They first make mad. — Euripides
by Migeru (migeru at eurotrib dot com) on Tue Sep 19th, 2006 at 11:44:34 AM EST
[ Parent ]
It's not just about Freehold/Leasehold of course, which are the two remaining statutory forms of tenure post 1925.

We distinguish "Law" from "Equity" through the quite extraordinary judge-made body of "Common Law" which covers, among other things, rights of use of Land and the whole concept of "trusteeship".

And yet it is a French law concept which I think is behind the extraordinary new legal possibilities I observe.

The French distinguish "contrats de mandat" ie contracts imposed by force of law (and both existing English forms of property rights - statutory and "equitable" are of this type, backed by sanction) from consensual "contrats de societe".

The UK LLP "Open Corporate" came about following the introduction of the Jersey LLP (grounded at least in part upon French law, I think) and I believe that the innovation I observe is based upon the fact that an "Open Corporate" like this is in fact a consensual "contrat de societe".

I wish I had enough grounding in jurisprudence and even philosophy to adequately explain.

Suffice to say that I believe that the "indefinite" property right - you share the usufruct for as long as you use the land, and the capital invested in it - inherent in the structures I am developing is in fact optimal and transcends the faultlines and conflicts in existing absolute forms.

The outcome is a "continuity" - or even timelessness - which has not previously been available.

"The future is already here -- it's just not very evenly distributed" William Gibson

by ChrisCook (cojockathotmaildotcom) on Tue Sep 19th, 2006 at 02:35:32 PM EST
[ Parent ]
To be honest, after doing a fair amount of reading of English liberals of the 19th century [including John Stuart Mill who is an ideological nephew of Bentham], I can't find much wrong with what they were saying. Too bad they have been hijacked by ideologues without common sense.

Those whom the Gods wish to destroy They first make mad. — Euripides
by Migeru (migeru at eurotrib dot com) on Tue Sep 19th, 2006 at 11:47:16 AM EST
[ Parent ]


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