Abstract
Commons studies have emphasized the importance of customary rights and informal institutions, arguing that if there is a gap between formal ownership titles and customary rights, then the latter must be respected. However, as customary practices weaken, the influence of state legal systems and registered titles becomes stronger. When the commons is registered under multiple co-owners’ names, the commoners come to believe that they hold a normal common property and keep these rights even after they leave the village. This phenomenon, called legalization, leads to the tragedy of the anticommons because the number of rights holders outside the village increases. This paper explains the underuse of Japanese common property forests due to this legalization, especially in terms of two points derived from microdata analysis of the 2000 census. First, in the case of multiple co-owners, the number of ex-villagers who keep their rights is very high. Second, when ex-villagers keep their rights and the registered name includes multiple coowners, forestry activities are most infrequent. This paper names this situation “Bundle of Rights Reversed,” in which those outside the community have strong rights to prevent change in forest use, and propose the application of a different legal rule. This framework would be useful for a comparative study on the formalization of commons tenure rights.
Highlights
Ostrom (1990) demonstrated that the recognition of the rights of common for the community can solve the tragedy of the commons
Relying on Heller’s anticommons theory but adding legalization theory, this paper aims to explain the situation of the underuse of Japanese common forest and provide a new framework for analyzing the property rights structure when commons and anticommons situations coexist (Dixon 2007; Vasile 2018)
If the villagers cannot contact even one of them, it will be impossible to make any changes to the way the commons is managed or to establish any legal relationships with others on their common land. This dilemma is termed as the “Bundle of Rights Reversed” because there is a centrifugal allocation of rights and veto power: the farther from the village, the stronger the influence of the rights without sharing the burden of management
Summary
Ostrom (1990) demonstrated that the recognition of the rights of common for the community can solve the tragedy of the commons. What property rights must a community possess and how must these rights be registered remain open questions. Because her principles describe the rights of common only as the right to set the rules for the use of common pool resources and does not discuss their relationship with land ownership There are cases in which the complicated ownership status leads to the tragedy of the anticommons. In addition to private property, common property, and state property, Heller (1998) proposed anticommons property as a new category of ownership in which there are too many holders of property rights to a resource. Anticommons property leads to underuse because it is difficult to find a consensus among numerous rights holders. Relying on Heller’s anticommons theory but adding legalization theory, this paper aims to explain the situation of the underuse of Japanese common forest and provide a new framework for analyzing the property rights structure when commons and anticommons situations coexist (Dixon 2007; Vasile 2018)
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