Law, Social Justice & Global Development

I. The nature and significance of the commons

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I. The nature and significance of the commons

This part briefly explains the nature, and theories, governance approaches as well as significance especially for rural poor of the commons, which are understood in this article to mean natural resources such as grazing land and forests held and used for a variety of purpose by members of a given community and sometimes even by members of several adjacent communities.

1.1 The commons under the `old` and new thinking

One may categorize perspectives on the commons broadly into two, namely the `old` and new thinking. The former is articulated by Hardin and his followers using the famous expression-the tragedy of the commons-whereas the latter is developed by Ostrom and her followers. This sub-section provides a brief account of the way the two paradigms appreciate the commons.

Under the `old` thinking about the commons, Hardin`s piece entitled `The Tragedy of the Commons` comes to the surface. Hardin has argued in this article that the commons which include grazing land belong to everyone and thus ultimately to no one, which, to him, definitely invites desecration of these resources. Hardin assumes in this article that the commons are open for every Tom, Dick and Harry and that the commons without distinction are unmanaged.2 To Hardin, a better policy option to this recipe for disaster is private property, private enclosure of some, though not all, of the commons. Hardin says,3

…the rationale herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another…and another…But this conclusion is reached by each and every rational herdsman sharing a commons. Therein is the tragedy…Freedom in the commons brings ruins to all…We might sell them off as private property. The tragedy of the commons is…averted by private property.

Hardin gets support from Crowe who cites England’s enclosure movement intended to avert `` a tragedy of overgrazing and lack of care and fertilization which resulted in erosion and underproduction…``4 Conceptually, the old thinking about the commons as embodied in Hardin`s piece is not nuanced. Under the old thinking, communal lands are considered as conferring no individual access to and control over resources, necessarily requiring collective use, and the rules governing such resources were seen as prohibiting land transfers to outsiders. The commons were likened to resources under the state of open access, i.e., no property case.

That attitude has now changed in literature. It is now a stereo-type to consider common property regimes as involving only collective production, as conferring the entire set of rights only to the group, as involving no tradability and being regulated by no norms and thus akin to open access resources.5

The new thinking, which Ostrom has popularized, involves in nuanced conceptualization of the commons and it no more views the commons as resources left in norm-less condition.6 Bruce says the concept of common property is often characterized by diversity of tenure regimes.7 This means communal land tenure does not necessarily mean that members of the community would undertake production collectively. Production or use of the commons is not necessarily collective. Production is individual in some portion of the commons and it is collective in other portions. And common property does not mean that ``the entire bundle of rights is given only to group as a whole…``8 Communal property is property right held by a group and the nature of the property the group may enjoy can be ownership or rights less than ownership such as usufruct or lease.9 Bromley succinctly puts common property as representing ``...private property for the group.``10 Common property is ``property of a group held as a common pool resource that group members use simultaneously or sequentially.``11 Communal land and other associated natural resources are ultimately controlled by the concerned community or clan to the exclusion of non-members.12 Members do have individual and/or common access to those resources. The members transfer these access rights to their descendants.13 There are occasions where communal resources are transferred to outsiders either in the form of sale or lease or outsiders are given access to communal resources in the form of sharecropping arrangements.

Ostrom argues that the world is replete with non-tragic use of the commons and thus the issue is not whether the commons are feasible or how faster we shall privatize the commons but under what conditions and at what scale the commons can be feasible.14 The direction we should go is not towards exclusion but towards finding an appropriate level or mix of governance of the commons to prevent spill over by outsiders and to prevent exploitation of some members from within.15 Bruce contends that recent scholarship on common property as well as lessons learned from common resource management projects disprove the theory of the tragedy of the commons and confirm the prospect for prudent use of natural resources communally. He remarks that project experiences ``almost always encourage greater control of resource use by local communities.``16 Development practitioners have observed that ``local communities sometimes manage their resources effectively, even under substantial pressure.``17 The literature on the commons has concluded that in common property,

a group with limited membership, the right to exclusive use of the resource, the opportunity to regulate resource use by group`s members has the incentive [to manage its resources effectively], because the costs and benefits of disciplined, sustainable use are internalized by the group.18

It is not always the case that there is ``some necessary connection between common property as a legal regime and the nature of the resource, when in fact many resources can be managed as individual or as common property.``19 Yet, ``there are certain resources that by their very nature are less conveniently partitioned for management by households than by others.``20 ``The costs of individualizing are high and it may be impractical…`` in respect of pastures and forests.21 ``Herders who can no longer move to accommodate highly variable rainfall patterns need to establish source of water for each discreet grazing unit…the costs of establishment are too high for small stockowners`` and enclosure of grazing land in such situation also results in denial of access to many small stockholders.22 In forests, ``there are protection, management and opportunity costs associated with long term investment in trees, and these can more easily be borne by a community…``23 Bruce writes:

Common property is regarded as an efficient solution in forestry... [There] is the need to maintain access to critical resources for the many rather than for the few, and especially to preserve the access of the rural poor. In some cases, the survival of minority peoples depends on the safeguarding of those communities` rights over their lands and forests.

Van den Brink et al describe the advisability of maintaining some resources in common and the emergence of a new consensus about the manner in which the commons are expected to be treated:

…livestock production systems based on nomadism…[is]…rational response to economic conditions. In semi-arid and arid areas, rainfall variability, and hence the avail-ability of water and fodder, may be so high, that livestock production will be based on a system which allows the herd to move over great distances. The spatial mobility of pastoral systems…exploits the economic benefits associated with flexibility—a benefit which can be shown to increase with increased rainfall variability. Pastoralists do not want fences because they know that their potential grazing area, given highly-variable rainfall, would be very large, and probably, given the regularity of serious droughts, the fence could never be large enough…In order to prevent overgrazing and conflict, these pastoral access rights are not “open access,” but specific rights restricted to a well-defined number of property right holders. The areas where such property rights apply are not “unused” or “vacant.” What pastoralists want are property rights that match their activities: access rights and rules to prevent over-use of the resource. Pastoralists would like their historic economic rights to be respected by the state and farming communities. The new consensus therefore recommends that governments create the possibility of resolving such potential conflicts and support dialogue so that communities can find ways of deciding together how the bundle of property rights should be allocated and enforced.24

Hardin`s approach, which goes for privatization rather than governance of the commons, is not dead at least in the Ethiopian context. Ostrom`s seminal work together with a growing literature on the commons has seriously interrogated the tragedy of the commons thinking. But progress in literature is one think; practice is another. An entrenched thinking that echoes for the dismantling of the commons in favor of exclusive private property cannot be buried easily especially when it suits the interests of the elites. It is a convenient device to justify grabbing the commons.

In sum, the new thinking sees the commons as a complex resource arrangement whereby some portions are used collectively and simultaneously while some other portions are accessed by members of the concerned group even privately and still some other commons must remain communal because of dictates of climate and economics. And further that the commons do not exist in norm-less state, and that the concerned communities` rights over the commons must be honored in making decisions regarding such resources.

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