Common Property Rights Research Articles

Существо нематериальных благ и их защита

In article according to standards of the Federal law of July 2, 2013 No. 142-FZ “On modification of subsection 3 of the section I of part one of the Civil Code of the Russian Federation” are studied a being of the intangible benefits and their protection. Properties of the intangible benefit as right subject form of the person and citizen, other than a common property right are established. Classification of the intangible benefits is given, specific ways of their protection are considered.

The Fearon Corollary: Private Property Rights as War

This Article models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of scarce resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to conflict/war, the following question is considered: if pre-conflict common ownership is socially-optimal, under what conditions will disputing parties fail to bargain around the conflict? In addition to the explanations identified by Professor Fearon, the present article offers an additional behavioral explanation evidenced in the institution of private property rights itself, and, in particular, in state “Castle Doctrine” laws that permit the use of lethal force in defense of real property. To promote the socially-optimal shared use of contested scarce resources, a role for the courts is suggested where de facto common property rights are established by rendering private property rights random or unclear — judicial behavior that stands in sharp contrast to the commonly understood normative implications of the Coase Theorem. This uncertainty weakens private property rights, reducing the expected spoils of costly conflict, and, in turn, creates an incentive for disputing parties to cooperate in the form of negotiated settlement agreements. In this way, less secure claims to private property promote social cooperation.

Governing disaster risk and 'survivability': the case of two villages in Kerala, India

Governing disaster risk reduction (DRR) seldom considers the communities' political and social rights. The access to resources as DRR strategy is not yet integrated into the current debate and practices of disaster risk reduction. This study takes two tsunami-affected villages in Kerala, India, to critically analyse the question of rights over natural resources as disaster risk reduction. The study villages are also in the mining zone of the state. Rehabilitation of tsunami victims has strengthened the mining industries in the area and it led to the exclusion of survivors from coastal common pool resources. Government is not having any legal barriers to handing over the coastal land for mining. This paper seeks to discuss the alienation of the community from common pool resources after rehabilitation and its impact on new ownership patterns. The study found that vulnerability increases after rehabilitation and lack of access to common property rights is posing threat to general perception of disaster rehabilitation.

The Legal Status of Aboriginal Spiritual Beliefs

What should be the legal status of Aboriginal spiritual belief, for example, rights and obligations under Aboriginal spiritual beliefs to access land to conduct traditional ceremony. Conventional common law property rights do not ordinarily extend to protection of spiritual beliefs. The article contends, however, that where common law and statutory law recognizes a system of native title, the content of native title is to be found not in the traditional principles of the common law but in the relevant native title traditions and customs. Spiritual elements, including rights and obligations to access sacred sites for traditional ceremony may be an integral component of native title. The issue is illustrated by analysis and rejection of the Commonwealth’s argument in a High Court case.

Curbing the power of developers? Law and power in Chinese and English gated urban enclaves

This article contributes to the legal geography literature through exploration of the contested concepts of power and law and their interconnected processes. Research findings from studies of urban gated enclaves in China and in England are used as a starting point to analyse the spatialisation of power in the creation of gated urban enclaves, with a particular focus on the role of law. Four categories of law are identified. The article suggests an analytical framework for understanding how particular modalities of power intersect with these different types of law. This framework is then applied to temporal stages in the creation of gated enclaves, in the context of the different legal geographies of China and England. In the final analysis, the manipulative power of neoliberalism outweighs law’s authority, for example when developers form alliances with municipal government to circumvent ‘policy’ and ‘regulatory’ law. Property rights as conceptualised through ‘high’ law are shown to be ineffective in resolving problems experienced by residents of specific enclaves, particularly those relating to common property rights. Developers were found to use ‘facilitative’ law to gain control of the juridical field, materialised through property rights allocation and resolution of disputes within urban enclaves.

The entitlements of unallied hunters after a sequential capture

As the famous fox case of Pierson v Post illustrates, rival hunters who have separately contributed to the capture of a wild animal may have different notions about which of them owns the prey. During the Stone Age, hunter-gatherers likely developed sophisticated norms to resolve these sorts of controversies. Each of the contributors to this symposium focuses on common law property rights in prey that North American judges articulated during the nineteenth century. Their articles analyse the rules of the game that applied in the Newfoundland sealery, North Pacific whaling grounds, and rural Long Island. In each setting, both hunters and judges tailored the applicable rules of capture to the characteristics of the hunted animal. When hunters’ customs were opaque, as they commonly were, judges sought to crystallize definitive legal rules. The articles in the symposium strikingly illustrate the gulf between ‘humanistic’ and ‘scientific’ styles of legal analysis.

THE ENTITLEMENTS OF UNALLIED HUNTERS AFTER A SEQUENTIAL CAPTURE

As the famous fox case of Pierson v Post illustrates, rival hunters who have separately contributed to the capture of a wild animal may have different notions about which of them owns the prey. During the Stone Age, hunter-gatherers likely developed sophisticated norms to resolve these sorts of controversies. Each of the contributors to this symposium focuses on common law property rights in prey that North American judges articulated during the nineteenth century. Their articles analyse the rules of the game that applied in the Newfoundland sealery, North Pacific whaling grounds, and rural Long Island. In each setting, both hunters and judges tailored the applicable rules of capture to the characteristics of the hunted animal. When hunters’ customs were opaque, as they commonly were, judges sought to crystallize definitive legal rules. The articles in the symposium strikingly illustrate the gulf between ‘humanistic’ and ‘scientific’ styles of legal analysis.

Social dimensions of market-based instruments: Introduction

This themed issue of Land Use Policy builds on the papers presented at an international symposium entitled Social Dimensions of Market-based Instruments, convened by the Charles Darwin University in Darwin, Australia, in November 2010. The symposium set out to review the extent to which market-based instruments were being employed as social policy tools in various contexts, what challenges achieving relevant social policy objectives posed, what trade-offs arose between environmental, social and economic objectives, and whether and how tensions could be resolved. The contributions to this themed issue provide conceptual-theoretical and empirical takes on the topic. They consider poverty, property rights and equality perspectives of participation and quantify social implications at the program, regional and national levels. They reveal converging messages, e.g. in relation to treatment of poverty, common property rights and nesting across scales. In combination, the papers make a compelling case that social implications of MBIs cannot be ignored and ought to be considered in design and evaluation even if programs do no pursue social objectives, as social dimensions can enhance or affect program effectiveness and efficiency. In doing so, the contributions expand the role that MBIs can play in ensuring sustainable resource use and offer considerations for policy design.

The influence of common property rights on forest management policy: a case study in Sardinia region, Italy

Abstract The property rights and the type of ownership (private owners, public domain and commons) are two fundamental concepts in relationship to the local development and to the social and environmental sustainability. Common forests were established in Europe since the Middle Ages, but over the centuries the importance of commons changed in parallel with economic and social changes. In recent decades, the scientific debate focused on the forest management efficiency and sustainability of this type of ownership in comparison to the public and private property. In Italy common forests have a long tradition with substantial differences in the result of historical evolution in various regions. In Sardinia region the private forests are 377.297 ha, the public forests are 201.324 ha, while around 120.000 ha are commons. The respect of the common rights changed in the different historical periods. Today, the common lands are managed directly by municipalities or indirectly through third parties, in both cases the involvement of members of community is very low. The main objective of the paper is to analyse forest management differences in public institutions with and without common property rights. To achieve the objective of the research the forest management preferences of community members and managers were evaluated and compared. The analysis was realized through the use of the principal-agent model and it has been tested in a case study in Sardinia region (Arci-Grighine district). The analysis of the results showed that the categories of actors considered (members of community, municipalities and managers) have a marked productive profile, but municipalities manage forests perceiving a moderate multifunctionality. Moreover, the representatives of the municipalities pay more attention to the interests of the collectivity in comparison to the external managers. They also attribute high importance to environmental and social forest functions.

Property and the Rule of Law

This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law — does the rule of law only include formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? Jeremy Waldron and Richard Epstein have recently defended each of these positions, respectively. By focusing on the nature of common law reasoning, I wish to question the form/substance dichotomy that frames this debate and show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common law reasoning and, as such, play a large role in shaping the substantive content of common law property rights. In other words, once property rights are understood as the result of a practice of reasoning that routinely invokes rule of law principles, the standard form/substance dichotomy is untenable. In short, there is no “substance” in the common law of property that is not already informed by “form.” Understanding this has implications beyond the relationship between property law and the rule of law for it indicates an important defect in contemporary property theory more generally. My claim is that property theory has focused too much on the concept of, and justifications for, ownership and ignored the role that rule of law principles have played in shaping substantive property doctrine. Theories of ownership risk going astray if they seek to account for property doctrine without first appreciating the way that form influences substance. Moreover, theories of legal reasoning and justification risk going astray if they do not appreciate the role that rule of law principles play in providing important standards of legal justification and instead mistake these elements for either principles of political morality or references to broad policy considerations.

Spatial transferring of ecosystem services and property rights allocation of ecological compensation

Ecological compensation is an important means to maintain the sustainability and stability of ecosystem services. The property rights analysis of ecosystem services is indispensable when we implement ecological compensation. In this paper, ecosystem services are evaluated via spatial transferring and property rights analysis. Take the Millennium Ecosystem Assessment (MA) as an example, we attempt to classify the spatial structure of 31 categories of ecosystem services into four dimensions, i.e., local, regional, national and global ones, and divide the property rights structure into three types, i.e., private property rights, common property rights and state-owned property rights. Through the case study of forestry, farming industry, drainage area, development of mineral resources, nature reserves, functional areas, agricultural land expropriation, and international cooperation on ecological compensation, the feasible ecological compensation mechanism is illustrated under the spatial structure and property rights structure of the concerned ecosystem services. For private property rights, the ecological compensation mode mainly depends on the market mechanism. If the initial common property rights are “hidden,” the implementation of ecological compensation mainly relies on the quota market transactions and the state investment under the state-owned property rights, and the fairness of property rights is thereby guaranteed through central administration.

‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub‐Saharan Africa

ABSTRACTThe context of this article is the surge in large‐scale land acquisitions of African lands by local and foreign investors for commercial food, livestock, oil palm and carbon trading purposes. Involuntary loss of rural lands at scale is not new to Africa's majority rural poor, nor is it driven by a single factor. Historically inequitable land relations within communities, compounded by a century of capitalist transformation, take their toll. This study argues, however, that the weak legal status of communal rights is the most pernicious enabler in their demise, allowing governments to take undue liberties with their citizens’ lands, and particularly those which are unfarmed and by tradition held in common. While international acquiescence to abusive domestic law helps entrench the diminishment of majority land rights, the domestic laws themselves are principally at fault and necessarily the target for change. This legal vulnerability is explored here through an examination of more than twenty African land laws.

Common property rights, adaptive capacity, and response to forest disturbance

This paper reports the results of a statistical analysis which measures the effects of adaptive capacity on forest conditions in response to a prior disturbance. Particular emphasis is placed on common property rights as a form of institutional adaptive capacity. Common property rights are delineated in terms of rights of access, withdrawal, management, exclusion, and alienation. Using statistical analysis of 326 forest user groups from 13 countries in the database of the International Forestry Resources and Institutions (IFRI) program, the effects on user group rankings of forest conditions are estimated with a probability model. Overall, the results indicate that user groups with more complete property rights are more likely to rank forest conditions favorably. However, the effects of property rights also depend on the level of other forms of adaptive capacity such as the organizational capacity of the group and the number of rival user groups.

Hardin Goes to Outer Space – ‘Mutual Coercion, Mutually Agreed Upon By The Majority of People Affected’

This article is the third and final installment of the ‘Hardinian Collection’. The first series – “A Tragedy of the Space Commons?” – formulated a theoretical framework with Garret Hardin’s works to create an analogue of the outer space environment being a common-pool resource and consequently susceptible to environmental degradation which may lead to its ultimate ruin. “Hardin Goes to Outer Space – ‘Space Enclosure’” is the second installment. It looked beyond the international space law for the possibility of relying upon other devices to provide an effective system of governance to control access to and the use of space. This article focused on Hardin’s works, and drawn its attention to one of the two property-rights arrangements he advocates favourably to save a commons from environmental ‘tragedies’ – the conversion of common-property rights to private property. It was concluded that the privatisation of the outer space environment would not prescribe a regime to promote the long-term preservation and sustainable management of the ‘Space Commons’. For the completion of the ‘Hardinian Collection’, this article looks at Hardin’s second solution to save the commons: ‘mutual coercion, mutually agreed upon by the majority of the people affected’, or otherwise known as ‘nationalisation’. For ‘nationalisation’, the commons is transition into public property where the State or some other external body is vested with the authority to allocate rights as to whom may enter and for what purposes the commons might be used, and use coercive measures such as taxes to enforce good behaviour and management practices of the resource system. The proceeding sections shall test the suitability of vesting absolute control of the outer space to a single State or a regulatory organ, and their respective effectiveness to minimise the rising threat of orbiting debris polluting the space environment. On the assumption that either a ‘Single State Space Authority’ or an independent and authoritative ‘International Space Authority’ is granted jurisdiction to regulate access to and use of the ‘Space Commons’, this article concludes on what additionally must be done to support the implementation and success of this new regime.

Spring Cleaning: Rural Water Impacts, Valuation, and Property Rights Institutions*

Using a randomized evaluation in Kenya, we measure health impacts of spring protection, an investment that improves source water quality. We also estimate households' valuation of spring protection and simulate the welfare impacts of alternatives to the current system of common property rights in water, which limits incentives for private investment. Spring infrastructure investments reduce fecal contamination by 66%, but household water quality improves less, due to recontamination. Child diarrhea falls by one quarter. Travel-cost based revealed preference estimates of households' valuations are much smaller than both stated preference valuations and health planners' valuations, and are consistent with models in which the demand for health is highly income elastic. We estimate that private property norms would generate little additional investment while imposing large static costs due to above-marginal-cost pricing, private property would function better at higher income levels or under water scarcity, and alternative institutions could yield Pareto improvements.

Private and Common Property Rights

The relative advantages of private property and common property for the efficiency, equity, and sustainability of natural resource use patterns have been debated in legal and economic literatures for several centuries. The debate has been clouded by a troika of confusions that relate to the difference between (1) common property and open-access regimes, (2) common-pool resources and common property regimes, and (3) a resource system and the flow of resource units. A property right is an enforceable authority to undertake particular actions in specific domains. The rights of access, withdrawal, management, exclusion and alienation can be separately assigned to different individuals as well as being viewed as a cumulative scale moving from the minimal right of access through possessing full ownership rights. All of these rights may be held by single individuals or by collectivities. Some attributes of common-pool resources are conducive to the use of communal proprietorship or ownership and others are conducive to individual rights to withdrawal, management, exclusion and alienation. Many of the lessons learned from the operation of communal property regimes related to natural resource systems are theoretically relevant to the understanding of a wide diversity of property regimes that are extensively used in modern societies. JEL classification: K1, Q2, H4, D7

Property Creation by Regulation: Rights to Clean Air and Rights to Pollute

This paper, prepared for a Lincoln Institute conference on Evolution of Property Rights Related to Land and Natural Resources, and the forthcoming book Property in Land and Other Resources (D.H. Cole and E.Ostrom, eds, forthcoming 2011, Lincoln Institute), argues that, contrary to both the suppositions of some legal scholars and the theoretical underpinnings of Regulatory Takings doctrine, government regulations do not only impose on existing private property rights but also vindicate, and sometimes even create, public, private, and/or common property rights. After examining conflicting common law and Roman law rules relating to property rights in the atmosphere, the paper focuses on how assertions of state sovereignty and regulations combine to create Hohfeldian rights and duties respecting the atmosphere, where none previously existed or were unclear. An explicit (but hardly novel) claim is advanced that acts of sovereignty themselves amount to assertions of public property. The claim is supported by evidence from both civil aviation regulation and air pollution control. The paper also addresses how regulations have created private property rights to pollute in emissions trading programs (regardless of congressional assertions to the contrary). In some cases, assertions of public property via acts of sovereignty are a prerequisite to the allocation of private property rights, and not just in the atmosphere but in other natural resources, such as marine fisheries. The paper concludes with a discussion of normative implications for property theory generally and Regulatory Takings doctrine in particular. A more dignified treatment of public regulations that are designed to protect public rights would raise a serious question about which set of property rights should prevail in the several Regulatory Takings cases where privately-owned lands meet publicly-owned waters. That question cannot, however, be answered reasonably until a theory (or multiple theories) of public property are better developed to complement existing theories of private and common property. So, the paper ends with a call for more research into the theory and empirics of res publica (beyond equally naive public interest and public choice models).

Planning Innovations in Land Management and Governance in Fragmented Rural Areas: Two Examples from Galicia (Spain)

Land fragmentation can be an important drawback for the development of rural areas. Due to the small size of the units, land management and planning are difficult from both the private and the public point of view. In some regions of Europe, land fragmentation can lead to the collapse of land-based activities such as agriculture and forestry. This process triggers land abandonment, which causes social, economic and environmental problems. Traditional interventions such as land consolidation have not worked because of the scale of land fragmentation, which leads to huge transaction costs. New planning instruments and governance structures for land management that balance the relations between property rights, management and labour force can be developed, in order to avoid the problems of land fragmentation. In this paper, we present two innovative examples of land management and governance structures for dealing with land fragmentation in rural areas of Galicia northwestern Spain. They were able to combine the use of individual and common property rights to make land use more sustainable, instead of trying to change land ownership. The new governance structures helped to increase efficiency and sustainability of the land use by, for example, increasing labour productivity, clarifying property rights and diminishing land abandonment.

Common Property and the Age of Aquarius

In this article, the institution of common property is considered from the perspective of the phenomenon of early 1970s Australian rural intentional communities. The article analyses the property structures adopted by these communities, and the extent to which some property structures successfully internalised common property rights and norms within the strictures of private fee simple title. It concentrates as a case study on the Northern Rivers region of New South Wales, the home of the 1973 Aquarius Festival and a ‘Rainbow Region’ for rural intentional communities. The article concludes by more broadly canvassing the implications of this Aquarian common property experiment for modern property, by exemplifying the transformation of an outdated private/public divide into diverse property variants with social and environmental resonance.

Integrating Biodiversity Conservation with Poverty Reduction: a Socioeconomic Perspective

Integrating Biodiversity Conservation with Poverty Reduction: a Socioeconomic Perspective