McGill Law Journal ~ Revue de droit de McGill
COMMON OWNERSHIP AND EQUALITY OF
AUTONOMY
Anna di Robilant*
trade-offs. Most
Au cours de ces dernires annes, la proprit com-
mune a joui dun avantage sans prcdent auprs des dci-
deurs politiques et des citoyens des tats-Unis, du Canada
et dEurope. Le nombre de fiducies de prservation de ter-
rains, de logements abordables, de coopratives, de jardins
communaux et de parcs grs par des quartiers est en
croissance dans toutes les grandes villes. Dun point de vue
normatif, ces rgimes de proprits communes impliquent
de nombreux bnfices, comme lesprit communautaire de
lutilisation efficace de ressources peu abondantes, ou la
plus grande libert dinteragir et de crer de faons nou-
velles. La conception du rgime de proprit commune, ce-
pendant, demande des compromis difficiles. Plus important
encore, pour atteindre avec succs les objectifs des rgimes
de proprit commune, il faut limiter la capacit des copro-
pritaires individuels utiliser la ressource commune li-
brement ainsi que celle de sortir de larrangement de pro-
prit commune.
Cet article a deux rles. Premirement, au niveau
normatif, il prsente largument que la proprit commune
a le potentiel dencourager une plus grande galit
dautonomie . Par galit dautonomie , je veux dire un
accs plus quitable aux moyens relationnels et matriels
qui permettent un individu dtre autonome. Deuxime-
ment, au niveau de la conception, cet article avance que les
compromis difficiles des rgimes de proprit commune de-
vraient tre grs en renforant lengagement lgalit
dautonomie dans le contexte de ressources spcifiques.
Dans certains cas, cette conception contextuelle pour les
ressources spcifiques aide minimiser ou viter de durs
compromis. Dans les cas difficiles o les compromis ne peu-
vent tre vits, cet article offre des arguments pour privi-
lgier une plus grande galit dautonomie plutt que des
liberts ngatives compltes.
In recent years, common ownership has enjoyed
unprecedented favour among policy-makers and citi-
zens in the United States, Canada, and Europe. Con-
servation land trusts, affordable-housing co-operatives,
community gardens, and neighbourhood-managed
parks are spreading throughout major cities. Norma-
tively, these common-ownership regimes are seen as
yielding a variety of benefits, such as a communitarian
ethos in the efficient use of scarce resources, or greater
freedom to interact and create in new ways. The de-
sign of common-ownership regimes, however, requires
difficult
importantly, successful
achievement of the goals of common-ownership re-
gimes requires the limitation of individual co-owners
ability to freely use the common resource, as well as to
exit the common-ownership arrangement.
This article makes two contributions. First, at
the normative level, it argues that common ownership
has the potential to help foster greater equality of au-
tonomy. By equality of autonomy, I mean more eq-
uitable access to the material and relational means
that allow individuals to be autonomous. Second, at
the level of design, this article argues that the difficult
trade-offs of common-ownership regimes should be
dealt with by grounding the commitment to equality of
autonomy in the context of specific resources. In some
cases, this resource-specific design helps to minimize
or avoid difficult trade-offs. In hard cases, where trade-
offs cannot be avoided, this article offers arguments for
privileging greater equality of autonomy over full neg-
ative freedom.
* Associate Professor of Law, Boston University School of Law. I wish to thank Talha Syed,
Greg Alexander, Eduardo Penalver, Ugo Mattei, Joe Singer, Bethany Berger, Stephen Mun-
zer, Maxi Langer, Bernadette Atuahene, John Lovett, David Linhart, Laura Underkuffler,
Jed Purdy, Eric Claeys, David Lametti, Nestor Davidson, Ben Barros, Michelle Anderson,
Madhavi Sunder, Daniela Caruso, Andrew Kull, Gerry Leonard, Kris Collins, David Seipp,
Arnulf Becker, and Roni Mann for helpful comments and suggestions. I also wish to thank
participants in the Faculty Workshop at Boston University, UCLA School of Law, the Prince-
ton Comparative Law Works in Progress workshop and the Property Works in Progress con-
ference at Fordham for helpful feedback. Scott Moore provided superb research assistance. I
also wish to thank the two anonymous McGill Law Journal referees for their helpful com-
ments and the editors of the McGill Law Journal for wonderful editing work. Errors are mine
alone.
Citation: (2012) 58:2 McGill LJ 263 ~ Rfrence : (2012) 58 : 2 RD McGill 263
Anna di Robilant 2012
264 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
The Commons Debate
A. Antitragedy Views and the Benefits of Common
Ownership
B. The Fundamental Design Problem of Common
Ownership: The Trade-Off Between Different
Kinds of Freedom
II. The Debate on Collective Ownership in Nineteenth-
Century Europe
A. Changing Attitudes Toward Collective Ownership
B. The Italian Bill on the Reorganization of Land
Collectives and the Commitment to Equality of
Autonomy
III. The New Commons and Equality of Autonomy
A. Equality of Autonomy
B. Equality of Autonomy and the Trade-Offs of
Common Ownership
C. Applications
2. Community Gardens
1. Affordable-Housing Co-operatives
Conclusions
265
271
271
276
282
282
288
293
293
297
301
301
310
320
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 265
Introduction
For a long time, common ownership had little appeal in Western lib-
eral democracies. In the collective imagination, common ownership was
associated with nightmares of Soviet peasants forced into kolkhozes and
deprived of their land, and with homeowners losing their homes to organ-
izations of tenants.1 Political and legal culture in the United States has
been particularly unsympathetic to common ownership. The story of
common ownership in America is the story of closing the open, rural land-
scape of early America.2 It is the story of courts reluctance to protect citi-
zens common rights in tidal water resources.3 It is the story of the mid-
nineteenth-century development of a system of property rights in the Cal-
ifornia gold mines, earlier treated as a commons.4 And it is the story of the
extraordinary flourish, followed by the failure, of the utopian religious
communities committed to communal ownership.5 The commons were also
unpopular among scholars, who were still influenced by pessimistic ac-
counts, such as Hardins allegory of the tragedy of the commons6 and
Demsetzs unidirectional theory of property evolution7 from the commons
to private property regimes.
In recent years, however, common ownership has enjoyed unprece-
dented favour. The limitations of zoning, taxation, and other public land-
use control measures as means for regulation and redistribution have in-
duced policy-makers and citizens to turn to a long-neglected private law
tool, common property, with new interest.8 Community land trusts have
1 See e.g. Samuel Kucherov, Property in the Soviet Union (1962) 11:3 Am J Comp L 376
at 376-78.
2 See e.g. Eric T Freyfogle, On Private Property: Finding Common Ground on the Owner-
ship of Land (Boston: Beacon Press, 2007) at 29-31.
3 See e.g. Lynda L Butler, The Commons Concept: An Historical Concept with Modern
Relevance (1982) 23:4 Wm & Mary L Rev 835.
4 See Andrea G McDowell, From Commons to Claims: Property Rights in the California
Gold Rush (2002) 14:1 Yale JL & Human 1.
5 See e.g. Carol Weisbrod, The Boundaries of Utopia (New York: Pantheon Books, 1980).
6 Garrett Hardin, The Tragedy of the Commons, Science 162:3859 (13 December 1968)
1243.
7 Harold Demsetz, Toward a Theory of Property Rights (1967) 57:2 Am Econ Rev 347.
8 For example, organizers of the Harvard Law Reviews 201112 symposium on The
New Private Law note that [s]ince the rise of Legal Realism and the modern adminis-
trative state, the standard academic supposition in this country has been that all law is
public law, and that any use of the category of private law is unhelpful or pernicious.
The New Private Law argues that while the Realist critique of private law has been
richly generative, it has also caused us to lose sight of entire domains of law and legal
study (Harvard Law Review, 201112 Symposium: The New Private Law (21 October
266 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
experimented with distributing the costs and benefits of land development
through common ownership rather than through taxation. Conservation
land trusts rely on common-ownership schemes to preserve open space or
protect ecological resources. Affordable-housing co-operatives are increas-
ingly seen as successful means for making good-quality affordable housing
available to medium- and low-income buyers. Community gardens and
neighbourhood-managed parks, where groups of private citizens reclaim
vacant urban open spaces as commons, are spreading in US cities.
Scholars have also dropped their tragic views. An antitragedy view
first emerged among political scientists, ecologists, and anthropologists,
who argued that Hardins thesis lacked historical, theoretical, or cultural
veracity.9 Antitragedy views have now become popular among property
scholars as well. Numerous antitragedy articles have appeared in law re-
views.10 The 2011 edition of the Common Core of European Private Law
conference was called Commons Core,11 and the famous Max Planck Insti-
tute has established a department devoted to the research on collective
goods.12 Among supranational decision makers, the [World] Bank is also
deeply engaged in, and on the cutting edge of, commons discourse.13
That common ownership is in vogue in some circles does not prove
that it is the only or the best form of ownership. Contrary to what some
might suggest, however, this article argues that common property is
much more than a passing fancy. It addresses the questions of why and
when common ownership is a good option.
In the new commons discourse, common-ownership regimes hold out
the promise of realizing a variety of desirable values: democratic and re-
sponsible management of natural resources; participatory production of
diverse cultural artifacts and information; and efficient use of scarce re-
sources when changes in prices or transaction costs make private proper-
2011), online: Harvard Law Review
9 Michael Goldman, Customs in Common: The Epistemic World of the Commons Schol-
ars (1997) 26:1 Theory and Society 1 at 4.
10 See e.g. Hanoch Dagan & Michael A Heller, The Liberal Commons (2001) 110:4 Yale
LJ 549.
11 See the conference program: Ugo Mattei & Mauro Bussani, eds, The Common Core of
European Private Law 17th General Meeting: The Commons Core (Turin: International
University College of Turin, 2011), online: The Common Core of European Private Law
12 Online: The Max Planck Institute for Research on Collective Goods
13 Goldman, supra note 9 at 7.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 267
ty inefficient.14 The idea that common ownership could deliver greater
economic equality, however, has been largely absent from this new com-
mons discourse. This is a puzzling absence: the word commons has al-
ways had a special resonance in political theory, embedded with themes
of equality and inclusiveness.15 Further, with Occupy Wall Street in the
headlines and statistics showing that twenty per cent of Americans con-
trol about eighty-five per cent of American wealth, the concern for equali-
ty is gaining centrality in the public discourse.16
This article argues that common ownership has the potential to help
foster greater equality of autonomy, by which I mean more equitable ac-
cess to the material and relational means that allow individuals to be au-
tonomous. I turn, for inspiration, to late nineteenth-century Europe,
where policy-makers and law professors revised earlier, pessimistic ideas
about the inevitable failure of common ownership and instead debated its
potential. Their debate stands as a rare moment when conservatives and
progressives alike talked about property law in a new wayas a means of
equalizing, rather than maximizing, the enjoyment of autonomy. They set
aside the focus on protecting the individual owners autonomy that had
characterized property debates since the Enlightenment and the rise of
liberalism. Instead, they privileged the idea that collective landownership
could make the autonomy that derives from owning land available on a
more equal basis.17
14 See the literature discussed in Part I, below.
15 Wendy J Gordon, Discipline and Nourish: On Constructing Commons (2010) 95:4
Cornell L Rev 733 at 754. From Karl Marxs Rheinische Zeitung articles on the debates
on the law on thefts of wood before the Rhineland Assembly (Karl Marx, Third Article:
Debates on the Law on Thefts of Wood, translated by Clemens Dutt in Karl Marx
Frederick Engels: Collected Works (New York: International Publishers, 1975) vol 1) to
E.P. Thompsons work on the moral economy of the English crowd in the eighteenth
century (Customs in Common (New York: New Press, 1993) ch IV), the commons have
been seen as providing the poor with access to necessities or a little surplus income.
16 See G William Domhoff, Power in America: Wealth, Income, and Power (October
2012), online: Who Rules America?
One Wealth Quintile at a Time (2011) 6:1 Perspectives on Psychological Science 9 at
11, figure 2.
17 A terminological premise is needed. I will use the term collective ownership when dis-
cussing the European nineteenth-century debate and common ownership when refer-
ring to present debates. European jurists talked about collective ownership and dis-
tinguished it from simple co-ownership. Co-ownership, or communio, was the concept
that European continental jurists had traditionally used to deal with proprietary situa-
tions involving more than one owner. The form of collective ownership that French and
Italian scholars sought to restore and expand in the late nineteenth century differed
from co-ownership in three respects. To start with, in co-ownership each co-owners
right was seen as analogous to that of an individual owner and was described through
268 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The notion of equality of autonomy that I propose differs from conven-
tional arguments about the autonomy afforded by property rights in two
respects. First, I suggest a different notion of autonomy. The autonomy
that most advocates of full property rights have in mind is negative free-
dom, that is, the absence of external restraints imposed by the state or
voluntarily placed by others.18 By contrast, the autonomy that common
ownership fosters is a thicker or multi-dimensional type of autonomy,
the idea of a share. In collective ownership, by contrast, an organic group of owners ex-
ercised a unitary right, unsusceptible to being quantified by shares. Second, while co-
ownership was a temporary condition, in that each co-owner could, at any moment, ask
for the partition, collective ownership was not temporary and could not be divided upon
request by a group member. Finally, while in the case of co-ownership, each co-owner
could freely transfer her share, in collective ownership, the pool of potential transferees
was variously limited. For a discussion of condominium and collective ownership, see
Francesco Filomusi-Guelfi, Enciclopedia Giuridica [Legal Encyclopedia], 5th ed (Na-
ples: N Jovene, 1907) at 245-53. As for the present debate in the United States, while to
be technically precise, ownership regimes can be arranged along a spectrum ranging
from open access to individually owned private property, most literature uses, for the
sake of simplicity, commons or common ownership. Among those who classify prop-
erty regimes on the basis of the number of owners, Margaret McKean distinguishes be-
tween (a) unowned or open-access property, where no one has rights and … no poten-
tial user can be excluded, for example the high seas or unclaimed lands; (b) public
propertyproperty held in trust for the public by the state, to which the general public
… has access, for example, national parks; (c) state propertythe exclusive … and
therefore private … property of government bodies, for example, government offices; (d)
jointly owned private property, where co-owners may sell their shares at will without
consulting the other co-owners, for example some agricultural co-ops, business part-
nerships, or joint stock corporations; (e) common property where all co-owners may
simultaneously agree to sell by an agreed-upon voting rule but individual co-owners can
sell, trade or lease their shares … only in accordance with very stringent rules laid down
by the group; (f) individually owned private property (Margaret A McKean, Success on
the Commons: A Comparative Examination of Institutions for Common Property Re-
source Management (1992) 4:3 Journal of Theoretical Politics 247 at 250-52). Stephen
Munzer provides a somewhat different classification, distinguishing between (a) open
access: anyone may come in and take out units of the resource, but no person has an
exclusive right to sell or manage the resource, for example, a fishery; (b) common prop-
erty: the co-owners individually have rights of entry and withdrawal and collectively
have rights to manage or sell the resource and to exclude nonmembers; (c) semicom-
mons: a mix of common and private rights in which each set of rights has a significant
impact on the other; (d) anticommons: an asset from which each person has a … [right]
to exclude and no one, a right to use without permission of others (Stephen R Mun-
zer, Commons, Anticommons, and Community in Biotechnological Assets (2009) 10:1
Theor Inq L 271 at 273.
18 See John Christman, The Myth of Property: Toward an Egalitarian Theory of Owner-
ship (New York: Oxford University Press, 1994) at 68-70 [Christman, Myth of Property].
Christman notes that arguments defending (liberal) ownership on the basis of liberty
rest on a negative notion of liberty as the relative absence of external physical re-
straints that prevent agents from acting on their actual desires (ibid at 68). On the
cognitive conditions for autonomy (i.e., for individual desires to count as autonomously
chosen), see ibid at 162-66.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 269
one that many have proposed in recent debates within liberalism.19 It in-
volves the availability of means that enable individuals to be autono-
mous.20 Autonomy requires, along with negative freedom, positive free-
dom, that is, the basic material resources (a home, food, education) that
enable us to have a meaningful set of options.21 Further, to be autono-
mous, we need the ability to communicate and debate ideas in order to
make, and take responsibility for, choices that we feel are authentically
our own.22 Second, I am concerned with patterns of distribution of au-
tonomy. If this thicker autonomy is important for human flourishing, then
it should be distributed more equally.
19 The idea of equality of autonomy that I propose is grounded in the concept of value plu-
ralism. For a discussion of value pluralism in property law, see Gregory S Alexander,
Pluralism and Property (2011) 80:3 Fordham L Rev 1017 (pluralists hold that there
may be multiple values that are equally valid and equally fundamental and that these
values sometimes conflict with each other at 1020). Alexander distinguishes between
different forms of pluralism. Foundational pluralism holds that pluralism exists all
the way down to the most basic level so that there is no single value by which we can
judge the goodness of all other values (ibid at 1021). Normative pluralism holds that
[t]here is a plurality of good-transmitters, or value-bearers, but only one foundational
good that they all bear. Thus, one may think that aggregate well-being is the founda-
tional intrinsic good but also believe that there are many bearers of well-being (ibid
×.). Using Alexanders typology of pluralisms, the notion of autonomy
that I propose is grounded in normative pluralism: there is one goodautonomyand
several good transmittersnegative freedom, positive freedom, and relational autono-
my.
20 On the multi-dimensionality of real or thick freedom, see memorandum from Talha
Syed to Anna di Robilant, Equality of What?: The Key Options [nd] [Syed, Equality of
What?]. See also John Christman & Joel Anderson, Introduction in John Christman
& Joel Anderson, eds, Autonomy and the Challenges to Liberalism: New Essays (Cam-
bridge, UK: Cambridge University Press, 2005) 1 [Christman & Anderson, Introduc-
tion; Christman & Anderson, Challenges to Liberalism].
21 See Christman, Myth of Property, supra note 18 at 162-74. Christman argues that one
must have the minimal ability to consider options, gather information, and reason
normally. … Therefore, one must have access to education, health care, and welfare
conditions (such as housing) (ibid at 163). He continues: In addition, it must be the
case that a persons living conditions are such that she is able to turn her attention to
the variety of choices and opportunities that are relevant to her self-development,
meaning that she is not constantly straining with other elements of ones survival,
such as minimal housing and welfare needs (ibid). See also Joel Anderson & Axel
Honneth, Autonomy, Vulnerability, Recognition, and Justice in Christman & Ander-
son, Challenges to Liberalism, supra note 20, 127. Anderson and Honneth suggest that,
for individuals to be autonomous, we need to minimize their vulnerabilities, hence the
emphasis on equality and access to participation in the relations of recognition through
which individuals acquire autonomy.
22 See e.g. John Christman, The Politics of Persons: Individual Autonomy and Socio-
historical Selves (Cambridge, UK: Cambridge University Press, 2009) ch 8 [Christman,
Politics of Persons].
270 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Common-ownership regimes such as affordable-housing co-operatives
and community gardens promote greater equality in the latter two di-
mensions of autonomy. First, they provide co-owners with a relational
network that facilitates authentic choices. Second, they are an im-
portant item in any package of policy proposals that ensure equality of ac-
cess to basic resources such as housing or green space, and their related
social and health benefits.
The commitment to equality of autonomy also offers guidance regard-
ing the central challenge of common-ownership design: the tension be-
tween equality and negative freedom. Can common-ownership regimes be
both egalitarian and liberal? In other words, can housing co-operatives or
community gardens be effective in advancing greater equality in the ma-
terial and relational dimensions of autonomy while also fully protecting
co-owners negative freedom, in particular, their ability to exit common-
ownership regimes? For common ownership not to be second-class owner-
ship, individual co-owners need to have negative freedom (i.e., some mar-
gin for autonomous-use decisions, as well as the ability to freely exit the
common-ownership arrangement). Historical and comparative studies,
however, show that the experiments with common ownership that were
the most successful in achieving high levels of equality, such as the Israeli
kibbutzes or the utopian religious communities in the United States, were
so because they limited members negative freedom.23
This trade-off between negative freedom and equality has been dealt
with in one of two ways. Some invoke consent: co-owners have freely con-
sented to limits on use and exit. By contrast, Hanoch Dagan and Michael
Heller have proposed the liberal commons, a default regime applicable
to a wide set of common-ownership regimes, from marital property to
business partnerships, that satisfactorily balance the difficult trade-offs
between co-owners ability to exit and the egalitarian or relational re-
wards of common ownership.24 I argue that neither answer is fully con-
vincing. The former raises difficult questions about the economic and so-
cial constraints on consent. The latter fails to discuss the hard cases
where trade-offs simply cannot be avoided.
I argue that these conflicts between negative freedom and equality
should be dealt with by privileging the commitment to equality of auton-
omy. The approach that I propose negotiates the difficult trade-offs be-
tween greater equality and less negative freedom for co-owners in the con-
23 See e.g. Ran Abramitzky, The Limits of Equality: An Economic Analysis of the Israeli
Kibbutz (2007) 67:2 The Journal of Economic History 495; Robert C Ellickson, Proper-
ty in Land (1993) 102:6 Yale LJ 1315.
24 Supra note 10.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 271
text of specific resources. It looks at the peculiar characteristics of hous-
ing, urban land, or water, and it weighs the plural values and interests
they implicate. In some cases, this resource-specific design helps to mini-
mize or avoid difficult trade-offs. In hard cases where trade-offs cannot be
avoided, I make arguments for privileging greater equality of positive and
relational autonomy over full negative freedom.
This article is structured in three parts. Part I presents the contempo-
rary debate on the commons and illustrates the central dilemmas in-
volved in the design of common-ownership regimes. Part II turns to the
European debate of the late nineteenth and mid-twentieth centuries that
led to the adoption of the 1894 bill on the reorganization of land collectives
in Italy. It argues that, in this latter debate, socialists and conservatives
agreed that common ownership could foster greater equality of autonomy.
Part III presents arguments for foregrounding a similar idea of equality of
autonomy in the current commons debate and discusses the normative
and design decisions presented by two common-ownership regimes that
have the potential to promote greater equality of autonomy: affordable-
housing co-operatives and community gardens.
I. The Commons Debate
A. Antitragedy Views and the Benefits of Common Ownership
Antitragedy views have gained wide consensus among legal scholars,
triggering the proliferation of a vast commons literature.25 The debate is
multi-faceted. It provides explanations for the frequent reversal of the
Demsetzian path from open access to private property rights. It asks
which values and goals a commons regime ought to promote and facili-
25 See e.g. Stuart Banner, The Political Function of the Commons: Changing Conceptions
of Property and Sovereignty in Missouri, 1750-1850 (1997) 41:1 Am J Legal Hist 61;
Abraham Bell & Gideon Parchomovsky, The Evolution of Private and Open Access
Property (2008) 10:1 Theor Inq L 77 [Bell & Parchomovsky, Evolution]; Anupam
Chander & Madhavi Sunder, The Romance of the Public Domain (2004) 92:5 Cal L
Rev 1331; Dagan & Heller, supra note 10; Ellickson, supra note 23; Daniel Fitzpatrick,
Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Con-
tested Access (2006) 115:5 Yale LJ 996; David D Haddock & Lynne Kiesling, The
Black Death and Property Rights (2002) 31:2 J Legal Stud S545; Saul Levmore, Two
Stories About the Evolution of Property Rights (2002) 31:2 J Legal Stud S421; Thomas
W Merrill, Introduction: The Demsetz Thesis and the Evolution of Property Rights
(2002) 31:2 J Legal Stud S331; Carol Rose, The Comedy of the Commons: Custom,
Commerce, and Inherently Public Property (1986) 53:3 U Chicago L Rev 711; Henry E
Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights
(2002) 31:2 J Legal Stud S453 [Smith, Exclusion Versus Governance]; Henry E Smith,
Semicommon Property Rights and Scattering in the Open Fields (2000) 29:1 J Legal
Stud 131 [Smith, Semicommon Property Rights].
272 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tate. Finally, it considers which legal rules or design principles would best
accomplish these goals. Three antitragedy views have emerged, centred
on community, freedom, and efficiency.
A prolific strand of scholarship, inspired by Elinor Ostroms work,
points to the communitarian rewards of common ownership.26 The com-
munitarian view comes in two variants: an ethno-identitarian variant
and a civic-republican one. According to the former, a durable regulatory
scheme would have to reflect and strengthen the social identity of a close-
knit group with shared beliefs, history, or needs. Examples of these close-
knit groups are the lobster gangs of Maine, a Swiss alpine community,
or the Israeli kibbutz. The ethno-identitarian claim is that the ideological
homogeneity and continuing interaction of group members generate gov-
ernance rules that are conducive to efficient resource management while
also rewarding other vital concerns, such as community or equality.27
According to the latter, civic-republican view, a well-designed common
property regime may create community where community did not previ-
26 Ostroms groundbreaking work has triggered a proliferation of methodologically similar
literature. The fundamental research question for Ostrom focuses on the governance of
natural resources used by many individuals in common, more precisely common pool
resources (CPR). Ostrom considered two alternative governance modelsstate control
and privatizationand proposed an alternative theory of self-organizing and self-
governing forms of collective action to successfully solve provision problems and appro-
priation problems. Ostrom examined a variety of case studies of self-governing institu-
tions to understand the design principles that characterize successful, long-enduring,
self-organized, and self-governed CPRs (Elinor Ostrom, Governing the Commons: The
Evolution of Institutions for Collective Action (Cambridge, UK: Cambridge University
Press, 1990) at 58 [Ostrom, Governing the Commons]). See ibid at 8-23, 58-101. See also
Elinor Ostrom, Constituting Social Capital and Collective Action in Robert O Keohane
& Elinor Ostrom, eds, Local Commons and Global Interdependence: Heterogeneity and
Cooperation in Two Domains (London, UK: Sage, 1995) 125 at 151-57.
27 Robert Ellickson defines a close-knit group as a social entity within which power is
broadly dispersed and members have continuing face-to-face interactions with one an-
other. By providing members with both the information and opportunities they need to
engage in informal social control, conditions in such groups are conducive to coopera-
tion (supra note 23 at 1320-21). Similarly, Singleton and Taylor argue that groups that
manage to solve their collective action problems by themselves are those that have
community. By community they mean a group with (1) some shared beliefs; (2) a
more-or-less stable set of members … who expect to continue interacting with one an-
other for some time to come and whose relations are direct (unmediated by third par-
ties) and multiplex; and (3) mutual vulnerability (i.e., each actor values something
which can be contributed or withheld by others in the group and can therefore be used
as a sanction against that actor). Community is undermined or weakened by great so-
cial and economic differences among its members such as differences in income, wealth,
class position, ethnicity, race, caste, language, or religion: see Sara Singleton & Michael
Taylor, Common Property, Collective Action and Community (1992) 4:3 Journal of
Theoretical Politics 309 at 311, 315.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 273
ously exist.28 Proponents of the civic-republican view argue that the inter-
active problem solving of successful commons is also at the core … of the
community development process.29 Common ownership delivers the de-
sired outcomes of a civic-republican ethos (i.e., participation, deliberation,
knowledge production, and responsibility). While some proponents of this
view focus on robust design principles,30 others excavate historical exam-
ples of community building that turned out well.31
In contrast to a focus on community, a second strand of commons
scholarship sees greater freedom as the reward of common ownership.
The idea that open access may yield greater freedom than traditional pri-
vatization has been central to the intellectual property debate on the pub-
28 The civic-republican view became prominent among legal scholars in the late 1980s,
largely due to two articles written by Frank Michelman and Cass Sunstein, respective-
ly. According to Sunstein, the basic republican commitments are to (a) deliberation in
government, (b) political equality, (c) universality, and (d) citizenship: see Cass R Sun-
stein, Beyond the Republican Revival (1988) 97:8 Yale LJ 1539 at 1541-42. Both Sun-
stein and Michelman advocated a modern reconsideration of civic-republican thought.
Michelman in particular presented a republican constitutional theory as a potential
means to justify a more robust protection of individual rights by the judiciary: see
Frank Michelman, Laws Republic (1988) 97:8 Yale LJ 1493. While the heyday of civic
republicanism was in the 1980s, it has remained influential in the commons literature.
29 James A Swaney, Common Property, Reciprocity, and Community (1990) 24:2 Jour-
nal of Economic Issues 451 at 456.
30 Elinor Ostrom proposes eight principles of good design: (1) the boundaries of the user
group and of the resource are clearly defined; (2) the use rules are appropriate given lo-
cal conditions; (3) most users can participate in modifying operational rules; (4) moni-
toring is done by the users themselves or by monitors who are accountable to them; (5)
sanctions are graduated and are carried out by other users or officials who are account-
able to them, or both; (6) users have easy access to low-cost, local arenas to resolve con-
flicts among users and officials; (7) users have the right to organize their own solutions,
unchallenged by external government authorities; and (8) the institutional mechanism
is organized in multiple layers of nested enterprises (Governing the Commons, supra
note 26 at 90, table 3.1). See also Elinor Ostrom, Community and the Endogenous So-
lution of Commons Problems (1992) 4:3 Journal of Theoretical Politics 343 at 344-45.
31 For instance, the chief lesson of the thread of nineteenth-century cases and doctrines of
inherently public property may be that open access to specific resources, such as
roads, waterways, or beaches, is desirable because it fosters socialization and civic edu-
cation, thereby serving democratic values: see Rose, supra note 25 at 778-80. Similarly,
a study of the eighteenth- and nineteenth-century common grazing lands of St. Louis
suggests that the commons benefited the residents of St. Louis by performing an im-
portant political function. Namely, [i]n a Spanish colonial political system that …
lacked institutions of self-government, the commons provided … a mechanism enabling
the residents to make their own decisions on matters most likely to have an economic
effect on them (Banner, supra note 25 at 64).
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lic domain. With the advent of the networked information economy,32
much of the commons debate has moved from a focus on land to a focus on
information.33 The growth of intellectual property law and the resulting
propertization of information mean the enclosure of the public domain.
This enclosure stifles political and cultural freedom. In response, the pub-
lic domain movement seeks to protect the commons of information against
the encroachment of private property.
For its advocates, protection of the public domain promotes freedom in
a variety of ways.34 It secures the availability of information from diverse
and antagonistic sources, thereby protecting freedom of speech, which in
turn enables individual self-authorship.35 It also allows individuals to in-
teract and create without restrictions, thereby sustaining innovation and
32 See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Mar-
kets and Freedom (New Haven: Yale University Press, 2006) ch 2-4 [Benkler, Wealth of
Networks].
33 See Chander & Sunder, supra note 25 at 1333. For some, [w]e are in the middle of a
second enclosure movement, … the enclosure of the intangible commons of the mind
(James Boyle, The Second Enclosure Movement and the Construction of the Public
Domain (2003) 66:1-2 Law & Contemp Probs 33 at 37). See also Yochai Benkler, Free
as the Air to Common Use: First Amendment Constraints on the Enclosure of the Pub-
lic Domain (1999) 74:2 NYUL Rev 354 [Benkler, Free as the Air]. For Benkler:
The public domain is the range of uses of information that any person is privi-
leged to make absent individualized facts that make a particular use by a particular
person unprivileged.
Conversely,
The enclosed domain is the range of uses of information as to which someone
has an exclusive right, and that no other person may make absent individualized
facts that indicate permission from the holder of the right, or otherwise privilege the
specific use under the stated facts (ibid at 362).
34 See Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradi-
tion for New Debates (2005) 72:4 U Chicago L Rev 1237 at 1278-81 (for a discussion of
the different ideas of freedom that underlie the debate). More generally, see David
Lange, Recognizing the Public Domain (1981) 44:4 Law & Contemp Probs 147 at 171
(for an early and visionary formulation of the idea that a robust public domain is condu-
cive to greater freedom).
35 Benkler, Free as the Air, supra note 33 at 366, 394. What Benkler has in mind is
what, in this article, I call a thick notion of liberal autonomy. In his view, properly de-
signed commons are capable of yielding desiderata that are central to this thicker no-
tion of individual autonomy: enhanced individual capacity to do more for and by oneself,
a more genuinely participatory political system, social justice in the form of increased
access to the basic instrumentalities of economic opportunity, as well as a more critical
and self-reflective culture: see Benkler, Wealth of Networks, supra note 32 at 133-34.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 275
productivity. The end result is an active, participatory cultural and civic
life.36
A third strand of commons scholarship shifts the focus from communi-
ty or freedom to efficiency. Law and economics scholars argue that, con-
trary to the Hardinian and Demsetzian narratives, common ownership
may be efficient in some instances. They focus on variations in transac-
tion costs to make sense of reversals from private property rights to open
access or common property alternatives. In some cases, changes in rela-
tive prices due to technological advances or other outside causes may ex-
plain the reversal. For example, [i]nput and output price changes might
suddenly make farming in a given location … unprofitable, inducing
farmers to cease policing boundaries.37 That lack of policing may reinstate
a regime of open access for hikers and hunters.38
Other law and economics scholars point to historically significant ex-
amples of efficient persistence of semicommon property.39 The open field
system, which displaced earlier, individual tenure in medieval and early
modern Europe, had significant efficiency benefits. Peasants owned scat-
tered strips of land40 for grain growing but also used the land collectively
36 See Lawrence Lessig, The Architecture of Innovation (2002) 51:6 Duke LJ 1783 at
1789-90.
37 Levmore, supra note 25 at S423-25. Levmore also provides an alternative explanation
for the reversal: ibid at S425. Most reversals require some capacity on the part of the
pre-existing property owners or potential beneficiaries to organize in interest groups.
For example:
[A]fter some wilderness has evolved to a state of privately owned plots, citizens with
recreational and environmental aims join to advance the cause of a green belt that
will form continuous open space in and around a city. They may succeed in gaining
legislation or administrative rules that make it difficult for private property owners
to do much with certain lands (ibid at S246).
Such green belt is unlikely to arise spontaneously (ibid). [G]overnmental intervention
is probably required, and this … is unlikely without some interest group activity (ibid
at S427). This is less of a bright story; it raises suspicions and can easily be described
in negative terms. … Organized minorities … may have brought about the reemergence
of a commons even though transaction costs and technological change continues to favor
evolution toward closed access (ibid at S428). It is possible that the change is ineffi-
cient and that it simply reflects the advantage of one interest group over another (ibid
at S431). [A]bsent a good deal of local evidence, Levmore argues, we will generally be
unable to distinguish between these two causes, so we will not know whether to regard
rearrangements with favor or disfavor (ibid at S433).
38 See ibid at S423-25.
39 See Smith, Semicommon Property Rights, supra note 25, at 144-46. See also Smith,
Exclusion Versus Governance, supra note 25 at 478-83.
40 Smith also notes that scattering is not an efficiency-decreasing cultural [artifact] but
rather is a key to achieving efficiency. Scattering is defined as a method of boundary
276 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
for grazing. This enabled them to take advantage of economies of scale in
grazing and private incentives in grain growing. … The semi-commons al-
lowed operation on two scales simultaneously.41
Still others maintain that the number of owners is, along with the con-
figuration of the asset and the scope of dominion, one of the three dimen-
sions of property rights that private actors and policy-makers should ad-
just to maximize property values.42 Examining these three aspects togeth-
er shows how the optimal number of owners is not necessarily one. For
example, underconsumption and overconsumption costs are a trade-off in
large-asset management. Single owners may be unable to consume large
assets on their own; however, reconfiguration into smaller units and pri-
vatization may be far more costly than the potential for overconsumption
as a commons. Sometimes the latter is the optimal solution.
A communitarian ethos, freedom to connect and create, and efficiency
are newcomers to the commons debate. Historically, the concern with
greater economic equality has been central to experiments with common
ownership. In Europe, between the twelfth and the nineteenth centuries,
use rights on common village lands or land collectives provided the poor-
est layer of the rural population with resources such as timber or forage,
and at times, with a small income.43 Interestingly, equality has remained
largely absent from the contemporary commons debate.
B. The Fundamental Design Problem of Common Ownership: The Trade-
Off Between Different Kinds of Freedom
In their 2001 article, Hanoch Dagan and Michael Heller made a fresh
start in the commons debate by highlighting and addressing the funda-
mental problem of common-ownership regimes. Can the commons be lib-
eral? Can a commons regime successfully promote the end envisioned, be
it community or efficiency, while also protecting individual co-owners
negative freedom (i.e., their ability to change their minds, pursue new
ends, and eventually, leave)? Until now, legal scholars and policy-makers
placement that functions as a sanction on the picking and choosing of parcels associated
with strategic behavior (Semicommon Property Rights, supra note 25 at 133).
41 Ibid at 132.
42 See Bell & Parchomovsky, Evolution, supra note 25 at 78-79. See also Abraham Bell
& Gideon Parchomovsky, Reconfiguring Property in Three Dimensions (2008) 75:3 U
Chicago L Rev 1015 at 1037.
43 On the role of the commons as social safety net, see generally Martina De Moor, Leigh
Shaw-Taylor & Paul Warde, Comparing the Historical Commons of North West Eu-
rope: An Introduction in Martina De Moor, Leigh Shaw-Taylor & Paul Warde, eds, The
Management of Common Land in North West Europe, c. 1500-1850 (Turnhout, Belgium:
Brepolis, 2002) 15 at 19-22; Thompson, supra note 15.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 277
have relied on design principles that make happy solutions difficult to im-
agine. By and large, they have favoured the protection of the interests of
co-owners as a group at the expense of liberal exit.44 And historically, to
liberal eyes, the communes that have achieved their goals appear utterly
illiberal;45 their success has depended upon limiting their individual
members exit options. For example, to achieve a high degree of equality
while also preventing adverse selection, the kibbutz movement has made
exit costly by requiring departing members to forfeit all, or almost all, of
their claims to the groups joint assets.46
Dagan and Heller argue that happy solutions are possible and that
there is no need for difficult trade-offs between co-owners negative free-
dom and other substantive values. They have translated their commit-
ment to liberal autonomy into a regime of default rules.47 Minor fine tun-
ing makes these rules applicable to a substantial subset of common-
ownership settings, such as marital property, partnerships, condomini-
ums, and close corporations. This regime, the liberal commons, facilitates
efficient communitarian co-operation while also protecting a whole family
of rights based on negative freedom, such as exit, dissociation, the right to
mobility, and the right to a fair share of the common resource.
For example, applied to marital property, the liberal commons regime
reinforces commitment to the marital community, where spouses share
with each other without reference to individual desert. At the same time,
44 See Dagan & Heller, supra note 10 at 551-52.
45 See Ellickson, supra note 23 at 1344.
46 See Abramitzky, supra note 23 at 495-96. See also Ellickson, supra note 23 ([a] com-
mune that succeeds in promoting equality and thick social ties simultaneously imping-
es upon the classical-liberal values of
liberty, privacy, and self-
determination at 1352).
individual
47 Rules in the sphere of individual dominion (Dagan & Heller, supra note 10 at 582-90)
counteract the potentially devastating effects that individual autonomy may have on
the efficiencyeven the viabilityof common ownership (ibid at 590). The aim is to
deter overuse by setting restrictive limits on exploitation, tailored to the specific re-
source, and to prevent underinvestment through investment protection rules. Rules in
the sphere of democratic self-governance (ibid at 590-96) seek to secure community and
autonomy by supporting the commoners co-operation and amplifying each co-owners
voice (i.e., ability to influence management from within). Besides procedural norms re-
lating to disclosure, fair hearing, and consultation, Dagan and Heller suggest broad ma-
jority-rule jurisdiction for decisions that increase the pie and sharp limits on majority
rule for decisions characterized as redistributive. Finally, and most importantly, rules
regulating exit (ibid at 596-601) aim at protecting individual autonomy while prevent-
ing opportunistic behaviour and enhancing co-operation. This is achieved through three
mechanisms: short cooling-off periods, reasonable exit taxes, and rights of first refusal.
278 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the regime protects the individual spouses negative freedom.48 As an il-
lustration, consider the difficult question of the proper division of a
spouses future earning potential gained during marriage. Those who care
about protection of the marital community may favour the principle that
academic degrees are marital assets subject to equal division. A key objec-
tion to that principle arises from negative freedom: the spouse who re-
ceived the degree during the marriage would be locked into a career after
the marriage. For example, a medical student might be obliged to practice
as a physician in order to pay her former spouse half of the earning poten-
tial that they generated together.49 A liberal commons regime solves the
dilemma with the rule that the increased earning capacity is only subject
to division after it is exercised and earnings are realized. Division safe-
guards community by recognizing that the development of careers during
marriage is centrally collective, but dividing only what is realized in order
to allow the spouse to make autonomous choices in the future.50
Dagan and Hellers liberal commons is an ambitious experiment in in-
stitutional design, but happy solutions to difficult trade-offs are not al-
ways possible. Take, for example, affordable-housing co-operatives, a form
of common ownership that has been edging closer to the policy main-
stream in recent years.51 They occupy the fertile middle ground between
arid dichotomies that have historically dominated American housing poli-
cy, where housing has had to be either publicly or privately owned.52 Typ-
ically, ownership is split between a non-profit entity and the residents
who own shares in the co-op. The residents shares give occupancy rights
but also come with obligations and limitations concerning aspects of the
co-owners autonomy, specifically the right to transfer and the right to
use.53 The right to transfer gives way to resale restrictions: [o]ften, in ex-
change for very favourable public financing, [residents] … must agree to
restrictions on the amount of equity [they] … can retain when the unit is
sold.54 These limits are meant to keep the unit affordable and hence
48 See Carolyn J Frantz & Hanoch Dagan, Properties of Marriage (2004) 104:1 Colum L
Rev 75 at 78.
49 See ibid at 110.
50 See ibid at 111-12.
51 John Emmeus Davis, Shared Equity Homeownership: The Changing Landscape of Re-
sale-Restricted, Owner-Occupied Housing (Montclair, NJ: National Housing Institute,
2006) at 1, online: National Housing Institute
52 Ibid.
53 See ibid.
54 Michael Diamond, The Meaning and Nature of Property: Homeownership and Shared
Equity in the Context of Poverty (2009) 29:1 St Louis U Pub L Rev 85 at 89 (in the con-
text of limited equity co-operatives). See also Duncan Kennedy, The Limited Equity
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 279
available to other low-income buyers. There may also be constraints on
who may buy units: for instance, the co-op may have a right of first re-
fusal in order to allow it to purchase the unit for resale to buyers who are
of low-income status.55 Further, there may be limits on the right to pass
the property on at death.56
Use entitlements are limited as well. First, owners are required to oc-
cupy the property,57 and subletting is regulated or restricted.58 Second,
while residents have the right to manage the property, they may be sub-
ject to review by the non-profit entity, in order to prevent gold plating, de-
terioration, or abusive or discriminatory management.59
These limits on co-owners negative freedom (i.e., on the right to freely
use, transfer, and exit) vary in nature and in justification. The inability to
pass ones share on at death is severe. Other limits are less invasive. Con-
sent requirements, for instance, may amount to a mere reasonableness
analysis not uncommon in common-interest communities, such as condo-
miniums. Some limits, though motivated by concerns that may be criti-
cized as paternalistic, are necessary to ensure the effectiveness and viabil-
ity of the project. They reflect a trade-off between full autonomy for cur-
rent co-owners and greater equality in access to housing for present and
future middle- and low-income buyers. These trade-offs are nevertheless
difficult because co-owners negative-freedom interests are extremely
weighty: compelling arguments can be made to support design principles
that fully reflect these interests.60
In the case of marital property, the happier solutions of the liberal
commons seem convincing but more difficult to achieve. Marriage delivers
unique goods (e.g., intimacy, caring, and commitment) that are im-
portant to the individual spouses self-fulfillment but are also collective in
nature.61 Sacrifices of a spouses individual autonomy, such as the division
of marital property on the basis of an equal-division rule rather than an
Coop as a Vehicle for Affordable Housing in a Race and Class Divided Society (2002)
46:1 How LJ 85 at 85-99; Duncan Kennedy & Leopold Specht, Limited Equity Housing
Cooperatives as a Mode of Privatization in Gregory S Alexander & Grayna Skpska,
eds, A Fourth Way? Privatization, Property, and the Emergence of New Market Econo-
mies (New York: Routledge, 1994) 267 at 271.
55 See Davis, supra note 51 at 14.
56 See ibid at 60.
57 See ibid at 14.
58 See Kennedy & Specht, supra note 54 at 271.
59 See Kennedy, supra note 54 at 100.
60 See generally Dagan & Heller, supra note 10.
61 Frantz & Dagan, supra note 48 at 81-88.
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individual-contribution principle, are entirely consistent with, and reflec-
tive of, this vision of marriage.
By contrast, the constraints on members negative freedom that are
typical of affordable-housing co-operatives may appear more puzzling and
harder to justify. These communities differ from the liberal egalitarian
community of marriage in several respects. First, they are large and het-
erogeneous. The intimate partial fusion of the marital couple is made pos-
sible by a commonality of emotions, interests, and projects. But members
of an affordable-housing co-operative have widely diverse life plans. They
belong to different layers of the worse off, entailing differences in aspira-
tions and in prospects for socio-economic success. Some have the desire
and ability for social mobility, while others are less upwardly mobile for
cultural or socio-economic reasons.62 Second, while marriage is usually
conceptualized as voluntary, entry into an affordable-housing co-operative
involves an aspect of coercion due to material insecurity and a limited
availability of options. Would-be home owners with low incomes typically
have a choice between home ownership under an affordable-housing re-
gime or renting.63 In Chicago, for example, limited equity co-operatives
have attracted and retained a population with an income that is too low
to enter the private housing market, but too high for [them to qualify for]
most subsidized housing.64 Third, while spouses commit to a long-term
marital project, members of affordable-housing communities envision dif-
ferent time horizons. Changes in a variety of life circumstances may make
easier and less costly exit options more important.65 Finally, while the
unique goods that spouses expect from marriage are inherently collective,
members of affordable-housing co-operatives rely on the benefits of co-
operation and community while also seeking highly individualistic goods
such as wealth accumulation and privacy. Housing is an economic good,66
but it is also a guarantee of privacy, safety, and freedom.67
62 See Kennedy, supra note 54 at 103, 110.
63 See Diamond, supra note 54 at 105.
64 Davis, supra note 51 at 94.
65 See Dagan & Heller, supra note 10 at 567-70 (discussing the costs of being locked in).
For the limited equity co-operatives, the risk is that the seller who, after a change in
circumstances, needs or wants to move out, will not be able to obtain enough net pro-
ceeds to permit him or her to buy a home in the unsubsidized market (Diamond, supra
note 54 at 90).
66 See Tim Iglesias, Our Pluralist Housing Ethics and the Struggle for Affordability
(2007) 42:2 Wake Forest L Rev 511 at 519-30; Lorna Fox, Conceptualising Home: Theo-
ries, Laws and Policies (Oxford: Hart, 2007) at 7-11, 33-37.
67 See Iglesias, supra note 66 at 530-38.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 281
Another way to deal with the tension between the goals of common
ownership and negative freedom is to argue that the constraints on nega-
tive freedom that are typical of affordable-housing co-operatives are justi-
fied by the members consent. Full disclosure is an integral part of enter-
ing these commons. Prospective buyers or members learn the rights, re-
sponsibilities, and limitations that accompany the property that they are
buying.68 Buyers, one could say, are happy slaves:69 they are free agents
bound only by their own choices. However, the consent argument presents
a number of difficulties.
For instance, consent theory is … entangled in substantive con-
cerns … about when choice is [actually] voluntary.70 A choice without rea-
sonable alternatives is not voluntary.71 As is mentioned above, members
of affordable-housing co-operatives have limited alternatives. Consent
theory also presupposes that the free agent has chosen her social role.
Members of affordable-housing co-operatives may be steeped in a specific
culture of poverty72 or culture of property73 because of a combination of
unchosen characteristics, including ethnicity, class, and income. These de-
terminants of their social role influence the choices that members of af-
fordable-housing co-operatives make.
The example of affordable-housing co-operatives shows that happy so-
lutions to difficult trade-offs are not always possible. The best that we can
do is to provide a normatively appealing justification for such trade-offs.
The next section of this article revisits the idea of equality of autonomy
from the nineteenth-century European debate on common ownership.
This notion restores the concern with economic equality to the commons
debate and provides an appealing justification for hard trade-offs that
disadvantage the negative freedom of individuals.
68 Davis, supra note 51 at 57.
69 Don Herzog, Happy Slaves: A Critique of Consent Theory (Chicago: University of Chica-
go Press, 1989) at ix.
70 Ibid at 246.
71 See ibid at 225.
72 Kennedy, supra note 54 at 103, 110.
73 Marc Choko & Richard Harris, The Local Culture of Property: A Comparative History
of Housing Tenure in Montreal and Toronto (1990) 80:1 Annals of the Association of
American Geographers 73 at 73 (arguing that Montreal has long had a peculiar culture
of property). [W]e may expect the local combination of general forces [e.g., income,
class, and ethnic composition] to give rise to autonomous and distinctively local pro-
cesses. This, we argue, was the case in Montreal, where a variety of factors combined to
create what we describe as a local culture of property (ibid at 75).
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II. The Debate on Collective Ownership in Nineteenth-Century Europe
A. Changing Attitudes Toward Collective Ownership
The reassessment of Demsetzs and Hardins tragic accounts of com-
mon ownership and the proliferation of antitragedy views is dj vu to
historians of European law. In Europe, a similar shift in attitude from
pessimism and hostility toward communal proprietary regimes to re-
newed interest in them occurred significantly earlier. For a couple of dec-
ades late in the nineteenth century, collective property was a topic of re-
search and heated debate among scholars, as well as a viable option for
policy-makers.74
For centuries in most Western European countries, lands had been
held, used, and managed in common by groups of owners. Collectively
owned lands and collective use rights were an essential lubricant of the
rural economy.75 They provided the lower strata of the rural population
with sustenance and, at times, surplus income.76 A vital element in the
social and economic fabric, these forms of collective landownership dif-
74 Recently, in France and in Italy, a vast historiographical literature has rediscovered the
nineteenth-century debates on common ownership. Earlier historiography emphasized
the destructive frenzy that, since the French Revolution, has animated the legisla-
tures repeated attempts to wipe out existing forms of common landownership. By con-
trast, recent revisionist scholarship foregrounds the existence, in the late nineteenth
century, of a vibrant collectivist movement (i.e., a prolific strand of scholarly literature
and policy discussions that reassessed the merits of common-ownership regimes). Revi-
sionists argue that the debate over common ownership is important because it success-
fully disputed, and presented alternatives to, the ideological and cultural primacy of
private property: see generally Paolo Grossi, An Alternative to Private Property: Collec-
tive Property in the Juridical Consciousness of the Nineteenth Century, translated by
Lydia G Cochrane (Chicago: University of Chicago Press, 1981); Nadine Vivier, Propri-
t collective et identit communale : Les biens communaux en France, 1750-1914 (Paris:
Publications de la Sorbonne, 1998). See also Marie-Danielle Demlas & Nadine Vivier,
eds, Les proprits collectives face aux attaques librales (1750-1914) : Europe occiden-
tale et Amrique latine (Rennes, France: Presses Universitaires de Rennes, 2003) (for a
study of collective property in different European countries).
75 PM Jones, The Peasantry in the French Revolution (Cambridge, UK: Cambridge Uni-
versity Press, 1988) at 19, 124-54. See also Thompson, supra note 15 at 73-150.
76 For instance, in France, according to a cadastral survey of 1846, communally owned
lands or lands burdened with collective-use rights amounted to nine per cent of the
French territory; fifty-nine per cent of such lands were for grazing and approximately
thirty-five per cent were cultivated: see Vivier, supra note 74 at 33. Similarly, in Italy, a
widely cited survey of 1947 estimates that collective lands totalled ten per cent of the
national territory: for a detailed analysis, see Nadia Carestiato, Beni comuni e propriet
collettiva come attori territoriali per lo sviluppo locale [Communal Goods and Collective
Property as Regional Actors for Local Development] (Doctoral Thesis, Universit Degli
Studi di Padova, 2008) [unpublished].
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 283
fered widely but fell into three main types.77 The first type consisted of use
rights held in common by the inhabitants of a village or town over lands
owned either by the town as public property or by a private landowner.
These use rights were limited entitlements to specific uses, such as graz-
ing, lumbering, and hunting.78
In contrast to these limited use rights, the second type of collective
property consisted of lands owned in common by an open group, often the
inhabitants of a village or town. The entitlement was ampler than a spe-
cific use right, each owner having the right to use and manage the land,
to appropriate its fruits and profit, and to exclude non-owners. Each male
individual who resided in the village for a certain period of time became
an owner.79
The third type of communal property consisted of lands owned by a
closed group, usually a small number of families and their descendants.
These agrarian collectives were centuries old and numerous. They varied
in name and organizational structure from region to region.80 Most of
them still exist.81
While these forms of collective ownership had existed for centuries, it
was only in the eighteenth and nineteenth centuries that they became a
matter of concern for the legislature. The development of a tragic attitude
77 This classification is standard in the Italian literature on collective property: see Fab-
rizio Marinelli, Gli usi civici [The Civil Use Rights] (Milan: Dott A Giuffr, 2003); Diges-
to delle discipline privatistiche: Sezione civile [Digest of Private Law Disciplines: Civil
Section], 4th ed (Turin: Utet, 1999), Usi civici [Civil Use Rights] by Alberto Germano
at 542 ff.
78 The origin of collective lands and use rights has, for centuries, been the object of intense
debate. Proponents of the immemorial common origins theory (historians of Roman
law and of ancient customary lawin France, the coutumes) argue that these lands are
the original and natural property of the community of inhabitants of the village or
town. By contrast, proponents of the feudalist theory (scholars of feudal law) argue
that collective lands originated as rights of use over feudal land, which were granted in
medieval times by a feudal lord to the local population, either as a benevolent conces-
sion or as a formal recognition of an actual use by the population dating back to remote,
prefeudal times. With the end of feudalism, these lands became the public property of
the village or town, and the inhabitants retained their use rights: see Vivier, supra note
74 at 42-43; Roger Graffin, Les biens communaux en France: tude historique et critique
(Paris: Guillaumin, 1899) at 41 (for France). See generally Romualdo Trifone, Feudi e
demani [Fiefdoms and Domains] (Milan: Societa Editrice Libraria, 1909) (for Italy).
79 This second form is known as universita agrarie or comunanze: see Alberto Cencelli, La
Propriet Collettiva in Italia [Collective Property in Italy], 2d ed (Milan: Libraio Della
Real Casa, 1920) at 25, 32.
80 See ibid at 17-83 (for an analysis of agrarian collectives in various Italian regions).
81 This is the case for the partecipanze of the Emilia region: see Legge 4 August 1894, n
397, in GU 5 september 1894, n 209 (It).
284 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
toward collective ownership, in many respects similar to Hardins idea of
a tragedy of the commons, raised the question of how to regulate collective
ownership. In both France and Italy, the question was whether to sup-
press or to reorganize the existing collective landownership regimes. This
question fuelled a passionate response from the parties involved (i.e., the
landowners and the peasantry), attracting a great deal of attention among
everyone from experts to the general public.82
The tragic attitude that prevailed for most of the nineteenth century
came as no surprise. In Europe, the century following the French Revolu-
tion of 1789 was the age of [individual] property.83 Whatever the grand
words adorning the revolution, wrote Hippolyte Taine, it was essentially
a transformation of property84the transformation of a feudal system,
based on privileges and prerogatives, into a modern social and legal sys-
tem based on the individuals absolute property rights. Before the French
Revolution, lands were subject to multiple claims. Property rights were
split between a subject and users. The subject, usually a feudal lord, had
direct or eminent ownership (i.e., title), while users had utile ownership
(i.e., use rights).85 The major achievement of the revolution was to reduce
or to cancel feudal claims, instead awarding absolute property rights to
the individuals who held utile ownership.86 Hence, in the post-
Revolutionary sensibility, the very idea of multiple owners came to be as-
sociated with feudalism and to be seen as backward.
82 See Jones, supra note 75 at 124-67 (discussing the struggle between landless peasants
and landowners over collective lands and use rights in France at the time of the revolu-
tion). The crucial and heated phase of the debate, which involved policy-makers and law
professors, took place in the 1880s and 1890s: see Grossi, supra note 74 at 196-231 (dis-
cussing the debate in the Italian parliament); Vivier, supra note 74 at 281-91 (discuss-
ing the expert debate among economists, lawyers, agronomists, and policy-makers in
France).
83 See Donald R Kelley & Bonnie G Smith, What Was Property? Legal Dimensions of the
Social Question in France (17891848) (1984) 128:3 Proceedings of the American Phil-
osophical Society 200 at 201. The authors argue that the period between 1789 and 1848
was the age of property: [N]ever was the alliance [between law and property] more
conspicuous than in [this age]. … The lawyers were the first to define bourgeois proper-
ty in the wake of the Revolution and to translate it into the positive law of the civil
code of 1804 (ibid).
84 Kelley & Smith, supra note 83 at 203, citing H Taine, Les origines de la France contem-
poraine (Paris: Librairie Hachette et Cie, 1878) at 386 [translated by Kelley & Smith].
See also John Henry Merryman, Ownership and Estate (Variations on a Theme by
Lawson) (1974) 48:4 Tul L Rev 916 at 923.
85 See Kelley & Smith, supra note 83 at 203-204. See Cornelia Munteanu, Historical Re-
marks on the Legal Notion of Property [2005] (supplement) Acta Universiatis Lucian
Blaga 54 at 62 (on the doctrine of split ownership or double domain).
86 See Kelley & Smith, supra note 83 at 203.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 285
By contrast, individual ownership was seen as conducive to progress
and happiness. As the French jurist Germain Garnier put it, [T]he more
earth is covered with societies of property owners, the greater the chance
for happiness for the whole species.87 A tragic view of collective owner-
ship dominated among lawyers and economists. One proponent of what
we could call an early law and economics approach88 asked, What love or
labour can one invest in these [collective] lands knowing that no personal
benefit can result and that the only possible return would come from
overusing them at the expense of others?89
The general ideological commitment to individual property and the
tragic tale of collective ownership were mirrored in legislation. Collective
property was virtually absent from the civil codes of the age of property.
In the Code civil des Franais (1804), collective ownership was relegated
to absolute marginality: article 542 barely mentioned it.90 The Italian Co-
dice civile of 1865 made no mention of collective ownership at all.91 In ad-
dition, the legislature in both France and Italy attempted to wipe out the
existing forms of collective land tenure in what historians describe as a
destructive frenzy.92 In France, the most important act of destructive
frenzy was the law of June 10, 1793, which encouraged the enclosure of
the commons.93 In 1888, after a tortuous legislative itinerary where ad-
87 Ibid at 204, citing M Germain Garnier, De la proprit dans ses rapports avec le droit
politique (Paris: G Clavelin, 1792) at 84 [translated by Kelley & Smith].
88 Pio Barsanti, describing his methodological commitments, refers to us, humble devo-
tees of Law and Economics (noi, modesti cultori del Diritto e dell Economia): see La
Socialit nel Sistema Della Propriet Privata [Sociality in Systems of Property] (Lucca,
Italy: Tipografia Giusti, 1880) at 43 [translated by author].
89 Ibid ([c]he amore, che cura volete voi che porti il privato a queste terre, quando egli sa
che a lui non viene da ci nessun vantaggio, e questo gli viene tutto dall usufruire pi
largamente che pu della propriet collettiva? at 37).
90 Art 542 CcF (Les biens communaux sont ceux la proprit ou au produit desquels les
habitants d’une ou plusieurs communes ont un droit acquis [Common property is that
to whose ownership or revenue the inhabitants or one or several communes have a
vested right]).
91 This omission reflects the liberal ideology of the Risorgimento, the movement of political
and ethical resurgence that led to Italys unification in 1861. Individual autonomy
(i.e., freedom from any prerogative attached to status or tradition and protection from
state interference) was seen as the central pillar of the political and economic order of
the new country. On the Risorgimento, see generally Lucy Riall, The Italian Risorgi-
mento: State, Society and National Unification (London, UK: Routledge, 1994).
92 Germano, supra note 77 (smania distruggitrice at 535). See also Grossi, supra note 74
(describing the destructive frenzy as a monolithic attitude that without the slightest
sign of sympathy had uprooted and destroyed these constructions [i.e., collective do-
mains] in the name of the superior model of individual property at 201).
93 The law allowed for the commons to be divided with the favourable vote of at least one-
third of the inhabitants. While absentee landlords and former feudal lords were exclud-
286 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
vocates of collective ownership fought vigorously, a law abolishing collec-
tive use rights in many provinces of central Italy was passed.94
However, by the late 1880s, the attitude toward collective ownership
changed. The agrarian crisis that struck most of Europe in the 1880s and
1890s raised questions regarding the unequal distribution of land and
made the need for agrarian reform urgent.95 Also, in both France and Ita-
ed from the ballot, every adult, male or female, had the right to vote. Once approved,
partition was organized on a per capita basis, irrespective of age or sex, on the condition
that the village had settled outstanding debts. Beneficiaries enjoyed full property rights
over their parcels, but they could not sell them or transfer them in payment of debts for
ten years: see generally Noelle L Plack, Agrarian Individualism, Collective Practices
and the French Revolution: The Law of 10 June 1793 and the Partition of Common
Land in the Department of the Gard (2005) 35:1 European History Quarterly 39 at 41-
42.
94 Grossi, supra note 74 at 201. Grossi notes that the efforts of the supporters of collective
ownership were not vain: For the first time a crack appeared (ibid) in the destructive
frenzy that had animated the legislator. As noted by Grossi, article 9 of the law provid-
ed that in the presence of certain circumstances the Arbitration Commission could al-
low the entire parcel in question to be left to the users, in the case of the abolition of an
encumbrance, in exchange for a yearly payment to the proprietor (ibid).
95 In France, the agrarian depression of the Second Republic (184852) and the phylloxera
epidemic of the 1870s and 1880s triggered a cycle marked by overproduction, falling
prices, strikes, and mass demonstrations. Socialism began to spread. Soon after the
revolution, socialists had recruited peasants, many of who had not been radicals in the
Revolutionary period, into local organizations that sponsored co-operatives. For in-
stance, in Provence, small-scale owners embraced the partys program of total collectivi-
zation of the land. Collectivist doctrines mirrored and reinforced the peasants own pre-
existing practice of economic co-operation, especially in the wine industry: see generally
Noelle Plack, Common Land, Wine and the French Revolution: Rural Society and Econ-
omy in Southern France, c. 17891820 (Farnham, UK: Ashgate, 2009) at 85. On the rise
of socialism among the peasantry, see generally Tony Judt, Socialism in Provence,
1871-1914: A Study in the Origins of the Modern French Left (Cambridge, UK: Cam-
bridge University Press, 1979). Italy was also experiencing a dramatic agrarian crisis
that badly affected the Mezzogiorno (the southern part of country), where the land was
in the hands of few: the latifundialarge estates, usually under absentee ownership
were the dominant form of land tenure. Land was operated, with minimal investments
in improvement and technology, by precarious sharecroppers and share tenants under
short-term contracts with the owner. Inimical to agricultural production and explosive
for social relations, this situation resulted in endemic violence and periodic insurrec-
tions. Anarchism flourished among the peasants. Bakunins short stay in Naples in the
1860s contributed to the rapid spread of his notion of spontaneous and continual revo-
lution among southern peasants. The peasant uprisings of the 1870s and 1880s were
repressed by the Italian army and guard units of local landowners. However, the legit-
imacy of the newly formed national state was questioned: remote and powerless, the
state started to be identified by many with the usurpations of the bourgeoisie. An effec-
tive policy response was needed: see Sidney G Tarrow, Peasant Communism in South-
ern Italy (New Haven: Yale University Press, 1967); Frank M Snowden, Violence and
the Great Estates in the South of Italy: Apulia, 19001922 (Cambridge, UK: Cambridge
University Press, 1986).
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 287
ly, the conjuncture of economic crisis, social change, and collectivist prop-
aganda brought into existence a rural socialist or anarchist political cul-
ture.96 This development generated alarm among moderates and con-
servatives.
Faced with these challenges, a broad coalition of moderate and pro-
gressive policy-makers began to reassess collective ownership. Restoring
the commons had long been a priority in the agenda of the socialist left.
When, at the beginning of the 1890s, Jules Guesdes Parti Ouvrier
launched a new strategy of alliance with the rural masses, the goal of im-
proving and expanding the commons was among the partys priorities.97
Similarly, in Italy, expropriating lands left idle and assigning them to co-
operatives was an important item in the minimum program approved at
the 1895 congress of the Socialist Party.98
The socialists commitment to collective ownership was long standing.
The moderates interest in common ownership, however, was a product of
the new European intellectual climate. To the moderates, collective own-
ership did not smack of socialism, because it had been rehabilitated by the
work of European historians and legal scholars.99 Henry Maines Ancient
Law argued that the institution of private property was not known in the
ancient law and that land was owned by extended families and groups ra-
ther than by individuals.100 Maines work, extremely influential, sparked
debate in intellectual circles in Italy and France. mile de Laveleyes De
la proprit et de ses formes primitives (1874) further developed and
96 See generally Judt, supra note 95 (discussing France); TR Ravindranathan Bakunin
and the Italians (Kingston: McGill-Queens University Press, 1988) (discussing Italy).
97 See Vivier, supra note 74 at 285-86.
98 Il programma minimo del 1895 : Riforme politiche economiche amministrative [The
Minimum Program of 1895: Administrative Reform of Economic Policy] in Antologia so-
cialista [Socialist Anthology, 1857-1982], ed by Luca Guglielminetti (Socialisti.net) 16-
17, online : Issuu
99 Historians debated the historical origins and forms of property: see Grossi, supra note
74 at 8-19. Participants in the debate were jurists and historians of law who were anti-
formalists; that is, they were eager to challenge the dominant legal academic culture
that worked and operated … under and in the shelter of the postulate of individual
property, which it saw as the Pillars of Hercules of its consideration of legal problems
and as the limit beyond which such consideration would have been illegitimate (ibid at
5). They also had a taste for the positive, which had been expressed philosophically al-
ternately in historicist and naturalistic terms, found concrete expression for the jurist
and the sociologist in an incessant curiosity, a curiosity which, far from being dilettante,
tended toward a purified scientific observation of the totality of surrounding phenome-
na (ibid at 12). Animated by this taste for the positive, participants in the debate en-
gaged in erudite, ground-breaking investigations and data collection: see ibid at 12, 15.
100 See ibid at 27-52, citing Henry Sumner Maine, Ancient Law: Its Connection with Early
History of Society, and Its Relation to Modern Ideas (London, UK: John Murray, 1861).
288 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
spread the idea that collective ownership had been the established mode
of ownership for most of Western history.101
The new cultural openness toward collective ownership was not lim-
ited to scholars. French painter mile van Marcke, of the famous cole de
Barbizon, presented a canvas titled Common Grazing Field in Normandy
at the Paris Salon of 1875.102 It portrayed a stout, healthy cow on a lush,
green common field, thereby visually portraying the newly rediscovered
idea that the commons could be prosperous and productive.
B. The Italian Bill on the Reorganization of Land Collectives and the Com-
mitment to Equality of Autonomy
In Italy, collective property, rehabilitated in the eyes of the intellectu-
al and political elite, became an important item in the legislative agenda.
For Italian lawyers, the 1890s were a moment of great political and intel-
lectual energy. Property law seemed like a viable tool for experimental so-
cial change.103 Lawyers and policy-makers of different political orienta-
tions vigorously backed legislative proposals for the reorganization of the
existing land collectives. In March 1892, a large group of moderate-
centrist MPs led by Tommaso Tittoni presented a bill on the reorganiza-
tion of the collective domains in the former Papal States, and the bill was
eventually approved in 1894 with the support of the Socialist Party.104 The
Tittoni bill was a hands-off, enabling piece of legislation rather than an
ambitious exercise in institutional design. Its effect was simply to grant
legal personality to the collectives and to accord them the power to draw
up their regulatory statutes within a year.105 What was unique about the
Tittoni bill, however, was the normative discourse that led to its approval.
In the parliamentary debate, conservatives and socialists both agreed that
101 See ibid at 53-70, citing mile de Laveleye, De la proprit et de ses formes primitives
(Paris: Librarie Germer Ballire, 1874).
102 See Vivier, supra note 74 at 298.
103 Grossi emphasizes the creativity of the collectivist jurists and their pragmatic attitude
toward social change:
There was a singular, a notable quality in our debate [on collective ownership].
It did not remain an academic affair among university professors, confined to the
dazzling prose of an inaugural lecture or of an innovative scientific essay. Rather, it
tended in one way or another to be translated into an operative reality. As we will
see in part two, this was one of the rare instances in which a mainly doctrinal mat-
ter has the freedom of the city in the chambers of Parliament, in which it acts as a
stimulant to legislators and leaves its mark on several official reports and even on
several acts of legislation (supra note 74 at 7).
104 See ibid at 218-31.
105 See ibid at 218.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 289
collective landownership could make the autonomy that derives from
landownership available on a more widespread basis.
The general sense among supporters of the bill was that the late
eighteenth- and early nineteenth-century enclosures and the transfer of
small parcels in full ownership to peasants had failed. The parcels were
often too small to support a family. The new owners were released into an
agricultural economy plagued by lack of capital, limited access to credit,
and inadequate productive technologies. As a result, they lost their land
in short time to a rising middle class that was eager to invest in land.
Supporters of the bill believed that collective ownership, with its mecha-
nisms for co-operation and coordination, would be more effective in pro-
moting peasants self-sufficiency and self-empowerment.
The notion of equality of autonomy was new to the normative dis-
course of European property lawyers. On the left, the idea of equality of
autonomy was both novel and controversial. The very word autonomy
smacked of bourgeois individualism,106 but Deputy Matteo Imbriani of the
Radical Party powerfully articulated the new idea in the parliamentary
debates relating to the Tittoni bill. He advanced autonomy and social jus-
tice, the two great ideals that move radicals. Imbriani appealled to the
revolutionary aspirations of the socialists and challenged those who dis-
missed autonomy as a bourgeois ideal. He started his discussion of auton-
omy by reminding fellow deputies that autonomy is associated with a fun-
damental sense of human dignity and is the motor of social change.107
Under feudalism, he asked, wasnt it this autonomy that moved the
minds, that told the maid, dragged to the lords bed, rise, take out the
weapon you are hiding in your braids and act?108 In contemporary par-
lance, Imbrianis notion of autonomy is effective agency, that is, the ac-
tual material means to pursue ones life plans. Our theory, he declared,
holds that all who are worthy of this name [human] because of their
work, their genius and their virtue, should own a parcel of land that en-
106 See Propriet Collettiva e Lotta di Classe: Discorso del Deputato Enrico Ferri e Polemica
col Deputato M. R. Imbriani [Collective Property and Class Struggle: Deputy Enrico
Ferris Speech and Debate with Deputy M. R. Imbriani] (Rome: Tipografia Della Cam-
era Dei Deputati, 1894) at 40. Ferri accused Imbriani of having betrayed the radical left
by embracing individualism and by defending the bourgeoisie:
The Honourable Imbriani, speaking from the bench of the extreme left against a
deputy of the same political sector, advocated ideas that sparked vivid enthusiasm
in the other [conservative] side of the Chamber, thereby showing and confirming my
statement that there are two currents: the individualist, of which the Honourable
Imbriani is a representative, and the socialist (ibid [translated by author]).
107 See ibid at 37 (contains a reproduction of Imbrianis speech, where he describes auton-
omy as human dignity, human sentiments, human rights [translated by author]).
108 Ibid [translated by author].
290 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
sures their independence and ability to affirm themselves in the struggle
of life … for the benefit of all.109
Imbriani convinced the socialists of the importance of equality of au-
tonomy by defining autonomy as the availability of resources that enable
individuals to carry out their projects. When the members of the Socialist
Party signed the Tittoni bill, they signalled that they had abandoned their
initial discomfort with the individualistic flavour of calls for greater equal-
ity of autonomy. Then, the socialists pushed the idea of equality of auton-
omy further. For Socialist Party MP Enrico Ferri, equality of autonomy
required more than giving legal personality and self-regulatory power to
existing collectives. It required making effective agency available to all,
regardless of gender or age.
Ferri argued that collectives would have to expand membership and
management to make the resources that enable individuals to be autono-
mous available on a more widespread basis. In most collectives, access
was closed: it was limited to the descendants of the original members or
conditioned upon certain property requirements, such as ownership of a
specified number of head of cattle. Membership was also limited to male
residents in most cases. Female-headed peasant households represented a
large and particularly disadvantaged segment of the rural poor, but they
could not be owners under the Tittoni bill. Accordingly, the Socialist Party
proposed two egalitarian amendments to the Tittoni bill. The first
amendment opened up membership to all residents, male and female, be-
tween the ages of eighteen and sixty. The second allowed women to vote
in elections of officers to the governing bodies.110 Neither amendment
made it into the final legislative text.
While the left had to work through its skepticism about autonomy,
conservatives had to work through their unease about calls for equality.
Count Alberto Cencelli Perti noted in his 1892 book, Collective Property in
Italy, that conservatives had long been committed to political equality but
considered social and economic inequality natural and necessary.111 The
agrarian crisis and the peasant uprisings made conservatives realize that
since we proclaimed the principle of political equality, we should have
expected that, sooner or later, the people would demand equality of mate-
rial conditions.112 Cencelli and other moderate conservatives came to see
greater economic equality as crucial to the stability of the existing social
order. Inequality, Cencelli noted, quoting Aristotle, is the source of all
109 Ibid at 46 [translated by author].
110 See ibid at 28-30.
111 Cencelli, supra note 79 at 89.
112 Ibid [translated by author].
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 291
revolutions.113 In his book, Cencelli proposed to reorganize existing collec-
tives along egalitarian lines.114 Rules regulating entry, that is, access to
the collective lands, were the backbone of Cencellis proposal. Cencelli dif-
ferentiated between grazing lands and agricultural lands. While access to
the former would be open to all, agricultural lands would be divided in
lots and assigned to individual residents or households, on the basis of
need, for a term of twenty years or so.115 For Cencelli, the foremost ad-
vantage of his proposal was that it would provide the possibility of auton-
omy to the rural proletariat. It would give the formerly landless assignee
access to a parcel of land of which she could consider herself owner, about
which she could make informed management and production decisions,
and on which she couldwork more profitably than as a salaried worker.116
Conservatives and socialists advocated greater equality of autonomy
for opposing reasons. The former deemed it necessary to stifle peasant
unrest and to preserve the existing social and economic order.117 The lat-
ter saw it as the closest they could get to an ideal society where a system
of free land would be re-established and [a] voluntary system of co-
operation [would] … establish itself spontaneously.118 At the same time,
there were some fundamental points on which the parties could agree.
These points made the debate surrounding the Tittoni bill unique in sev-
eral respects.
First, it had the effect of reorienting, for a brief moment, the conversa-
tion on property law toward the new goal of expanding access to the au-
tonomy afforded by property rights. This new goal temporarily displaced
the old goal of maximizing the autonomy of the better off, who already
owned land. Since the Enlightenment, philosophers and legal theorists
have argued that property fosters individual autonomy. The general ar-
gument is that a system where individuals are granted the full package of
property entitlements, comprising the right to exclude, to use, and to
transfer, and where they are free to bargain in the market without inter-
113 See ibid at 88.
114 See ibid at 94-101.
115 See ibid at 97-99.
116 See ibid at 100.
117 See ibid at 100 (the moral effects [of his proposed scheme of collective landownership]
are significant. The proletarian, who occasionally may become violent and even worse,
is turned into a conservative citizen; [collective property is] a safety valve against the
spread of subversive ideas at 100 [translated by author]).
118 Achille Loria, The Economic Foundations of Society, translated by Lindley M Keasbey
(London, UK: Swan Sonnenschein, 1910) at 7.
292 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ference, makes individuals autonomous.119 It frees them from the re-
straints that prevent them from acting on their actual desires. This au-
tonomy involves many abilities: freedom of action, privacy, and self-
expression. As Adam Smith saw, in Jedidiah Purdys reading of Smith,
property rights and markets afford individuals the ability to pursue their
projects and to bargain over the terms of their co-operation.120 Further,
property provides, both literally and figuratively, the necessary walls
that allow individuals to retreat into their sphere of privacy.121 Finally, in
the Hegelian tradition, ownership allows individuals to constitute them-
selves as people by extending their will over the objects of the external
world.122 Ferri, Cencelli, and the other participants in the 1894 debate
took this belief in the autonomy benefits of property further. They argued
that common ownership could allow a larger number of individuals to
benefit from this autonomy.123
Second, participants in the debate shared the pragmatic belief that
property law could be changed and improved to advance new goals. Earli-
er calls for equality had often rejected the very institution of property as
unjust. Marx and Proudhon obviously come to mind. But Ferri, Cencelli,
and Imbriani believed in property. They believed in the possibility of re-
shaping a system of property rules that, for centuries, had been centred
on private property. They defied the conventional view of private property
119 For contemporary articulations of this argument see Richard A Epstein, Property and
Necessity (1990) 13:2 Harv JL & Pub Poly 2. Epstein argues that [i]f possession, use,
and disposition turn out to be the ideal bundle of property rights, … [so that] voluntary
transactions take place between people who are in a position to sell and people who are
in a position to buy, … [t]his system would necessarily have a self-generating capacity
with each successive … transfer and would produce more by way of gains than it
would produce by way of losses, … [and] we would move to higher and higher levels of
social satisfaction … [and] private gratification (ibid at 4). See also generally Richard
Pipes, Property and Freedom (New York: Vintage Books, 1999); Milton Friedman with
the assistance of Rose D Friedman, Capitalism and Freedom (Chicago: University of
Chicago Press, 2002) at 7-21.
120 See Adam Smith, The Theory of Moral Sentiments (Indianapolis: Liberty Classics,
1976); Adam Smith, Lectures on Jurisprudence, ed by RL Meek, DD Raphael & PG
Stein (Oxford: Clarendon Press, 1978). On Smiths theory of property, the market, and
freedom, see Purdy, supra note 34 at 1251-58.
121 On property as privacy see Eduardo M Pealver, Property as Entrance (2005) 91:8 Va
L Rev 1889.
122 See Hegel, Philosophy of Right, translated by TM Knox (Oxford: Claredon Press, 1942)
at 40-41. Among US property scholars, the Hegelian perspective is most importantly
associated with the work of Margaret Radin: see Margaret Jane Radin, Property and
Personhood (1982) 34 Stan L Rev 957.
123 For a contemporary argument about property, equality, and freedom, see D Benjamin
Barros, Property and Freedom (2009) 4:1 New York University Journal of Law & Lib-
erty 36.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 293
as natural and unshakable. What they had in mind was a hybrid system
in which private property and common property would complement each
other.
III. The New Commons and Equality of Autonomy
This section turns to contemporary American property law and shows
how the idea of equality of autonomy recuperated from the nineteenth-
century European debate on collective ownership is key for expanding and
redirecting the commons debate.
A. Equality of Autonomy
In nineteenth-century Europe, the parliamentary debate on the Titto-
ni bill that reorganized agrarian collectives set the stage for a new under-
standing of how property fosters individual autonomy. Today, we need a
similar normative reorientation. Our conversation about the potential of
common ownership should be expanded to include a similar notion of
equality of autonomy. This notion of equality of autonomy should build
upon insights from the European late nineteenth-century debate on com-
mon ownership, as well as recent debates in political philosophy. It should
support equitable access to the means of obtaining autonomy, defined as
the relative absence of restraints and the presence of resources enabling
individuals to carry out their critically appraised projects and preferences.
The notion of equality of autonomy that I propose focuses on the
means for autonomy rather than on the condition of autonomy. Propo-
nents of egalitarian liberalism are faced with the question Equality of
what?124 Some have argued for equality of condition. The argument is
124 Egalitarians have long discussed the equalisandum (i.e., what it is that should be
equalized): see Richard J Arneson, Equality of What? Revisited (for APSA), (5 August
2010), online: Social Science Research Network
John E Roemer, Theories of Distributive Justice (Cambridge, Mass: Harvard University
Press, 1996) (on the debate in general). Participants in the Equality of what? debate
have expressed a variety of views. John Rawls characterizes the need for equality in
terms of primary social goods. These consist of everything that every rational man is
presumed to want, including rights, liberties and opportunities, income and wealth, and
the social bases of self-respect: see John Rawls, A Theory of Justice (Cambridge, Mass:
Belknap Press of Harvard University Press, 1971). Amartya Sen shifts the focus from
goods to what goods do for human beings. He proposes equality of basic capabilities.
Justice requires that all members of society have basic capabilities to do and be what
they have reason to value at a decent threshold level: see Amartya Sen, Inequality
Reexamined (New York, Cambridge, Mass: Russell Sage Foundation, Harvard Univer-
sity Press, 1992). Ronald Dworkin argues for equality of resources: Sovereign Virtue:
The Theory and Practice of Equality (Cambridge, Mass: Harvard University Press,
2000). Dworkins is a starting-gate theory identifying distributive justice with an equal
294 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
that one of the fundamental requirements of justice is that social and po-
litical institutions be arranged so as to allow peoples conditions to be as
equal as possible. Individuals should be made equal in subjective happi-
ness, understood either in terms of hedonic states or preference satisfac-
tion or the good life.125 However, as many have noted, equality of condition
fails as an expression of egalitarian concerns for two reasons.126 First, it
leaves little room for individual responsibility. For example, it requires
that we compensate people for having expensive tastes. It fails to
acknowledge that individuals should take responsibility for their overall
life ambitions and discrete preferences, as well as the social costs of these
choices. Furthermore, it minimizes the reward for individual effort. Sec-
ond, critics have noted that equality of condition [f]ails to recognize ex-
pensive needs: [that is, that] some people may simply not be able to be
made equal in any space/metric of outcome, for example, people who
are severely disabled or who have expensive medical requirements.127
The concept of autonomy that I embrace is multi-dimensional. It in-
cludes negative
freedom, and relational self-
determination. In their debates, Ferri, Imbriani, and Cencelli envisioned
a positive or substantive autonomy. They realized that equal access to the
possibility of autonomy requires equal access to land. They also realized
that positive action is needed to redress the inequalities that result from
private property in a market economy. The positive action that they had
in mind was legislation that would reinvigorate a long neglected private-
law toolcollective ownership. They had witnessed the failure, in the long
term, of land enclosures as a means for achieving a more equal distribu-
tion of land. Hence, they came to see the potential of collective ownership.
Today, common ownership remains an important tool for expanding ac-
cess to resources that enable individual autonomy and human flourishing.
It can do so better than individual ownership.
freedom, positive
initial allocation of material resources adjusted by an insurance scheme to compensate
individuals for brute luck handicaps and low marketable talent, and after that with
whatever results from peoples choices in a fair framework for interaction including op-
portunities to insure against future brute luck misfortunes (Arneson, supra note 124 at
1). G. A. Cohen argues that egalitarians should care about equality of access to ad-
vantage. The nature of advantage includes both resources and welfare: On the Currency
of Egalitarian Justice and Other Essays in Political Philosophy, ed by Michael Otsuka
(Princeton: Princeton University Press, 2011).
125 In particular, see Syed, Equality of What?, supra note 20; Arneson, supra note 124 at
1-2.
126 See Syed, Equality of What?, supra note 20.
127 Ibid. See also Talha Syed, Equality, Priority & Justice in Differential Needs: The Prin-
ciple of Proportionate Benefit/Sacrifice [forthcoming in 2013].
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 295
Take housing as an example. Distressed and underfunded, the public
housing system often fails to deliver decent homes, a safe environment,
and neighbourhood quality.128 Also, for many, public or subsidized housing
is not an option: their income is too high to qualify for most forms of sub-
sidized housing but too low to allow them to enter the private market for
housing.129 By limiting equity and promoting self-government, forms of
common ownership such as limited equity co-operatives are effective in
securing long-term, good-quality, affordable housing. They are not a sub-
stitute for traditional public housing but rather a crucial complement to
it. Another form of common ownership, co-housing arrangements, can
have important advantages over individual home ownership. These ar-
rangements allow co-owners to share the cost of the mortgage or rent, as
well as the cost of utilities, maintenance, and insurance.130 Further,
through co-housing, co-owners can share the cost of amenities that [they]
couldn’t afford on [their] … own, such as a hot tub … or large yard. Both
housing co-operatives and co-housing also make it easier to access other
resources. For instance, they allow co-owners to share the cost of basic
services such as child care or in-home care.131
Take, as a further example of common ownership, land or water.
Standard regulatory mechanisms of land use, such as zoning, have lim-
ited effectiveness in preserving land-use diversity, open space, and ecolog-
ically sensitive lands in sufficiently large quantities. Mechanisms of pri-
vate land use and open-space planning based on common ownership, such
as land conservation trusts or water trusts, may be an important com-
plement to standard land-use regulation.132
Common ownership can also expand access to leisure goods that are
often too expensive to be owned individually. For example, fractional
128 I do not imply that public housing can never be a success story; incredible energy has
been invested in redeveloping public housing, and experiments such as the Horner pro-
ject in Chicago have been successful: see e.g. William P Wilen, The Horner Model: Suc-
cessfully Redeveloping Public Housing, online: (2006) 1:1 Northwestern Journal of Law
& Social Policy 62; Terry AC Gray, De-concentrating Poverty and Promoting Mixed-
Income Communities in Public Housing: The Quality Housing and Work Responsibility
Act of 1998 (1999) 11:1 Stan L & Poly Rev 173.
129 See Davis, supra note 51 at 94.
130 See Janelle Orsi & Emily Doskow, The Sharing Solution: How to Save Money, Simplify
Your Life & Build Community (Berkeley: Nolo, 2009) 137-88; Mark Fenster, Commu-
nity by Covenant, Process and Design: Cohousing and the Contemporary Common In-
terest Community (1999-2000) 15:1 J Land Use & Envtl L 3.
131 Orsi & Doskow, supra note 130 at 137.
132 On water trusts, see Mary Ann King, Getting Our Feet Wet: An Introduction to Water
Trusts (2004) 28:2 Harv Envtl L Rev 495.
296 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ownership arrangements can bring the luxury of a vacation home or a
sailing boat within the reach of many.133
Common ownership not only has the potential to equalize the means
for positive autonomy but can also foster an autonomy that is thicker be-
cause it is relational. Relational autonomy is an idea that was largely for-
eign to the world of European late nineteenth-century policy-makers but
that has gained prominence in contemporary debates. In recent years,
some political philosophers arguing within liberalism have rejected the
traditional hyperindividualism of liberal autonomy.134 They argue that
traditional, liberal autonomy assumes that authentic choice happens in
an inner citadel of detached, higher-order reflection and ignores the
importance of other persons as sources of dialogue and meaning.135 These
philosophers have responded by broadening the notion of autonomy to in-
clude its social or relational preconditions. They suggest that authentic
choice can only occur in social conditions that foster certain types of hu-
man relationships.136 Authentic autonomy requires critical reflection on
ones own choices, which is more likely to happen in a social and discur-
sive context.137 Some individuals require the context of answering for their
actions. Others require self-respect and self-trust, which emerge within
relations of mutual recognition.138
Common-ownership schemes can provide this web of relations. Part of
their attractiveness, for those who choose them, is co-owner immersion in
a self-governance structure that facilitates human relations conducive to
authentic choice. For example, there is vast support in the literature for
the proposition that members of affordable-housing co-operatives value
involvement in the community and in management of the co-operative for
the sense of self-control it brings those members.139 Notwithstanding this,
133 See Orsi & Doskow, supra note 130 at 167.
134 See e.g. Christman, Politics of Persons, supra note 22 at 164-86; Paul Benson, Free
Agency and Self-Worth (1994) 91:12 Journal of Philosophy 650; Jennifer Nedelsky,
Reconceiving Autonomy: Sources, Thoughts and Possibilities (1989) 1:1 Yale JL &
Feminism 7; Marina Oshana, Personal Autonomy in Society (Aldershot, UK: Ashgate,
2006); Anderson & Honneth, supra note 21 at 130-37.
135 Christman & Anderson, Introduction, supra note 20 at 12.
136 See e.g. Nedelsky, supra note 134.
137 See Benson, supra note 134; Nedlesky, supra note 134.
138 See Anderson & Honneth, supra note 21 at 132-35.
139 See e.g. Kennedy, supra note 54 at 92; Susan Saegert & Lymari Benitez, Limited Equi-
ty Housing Cooperative: A Review of the Literature (np: City University of New York
Graduate Center for the Taconic Foundation, 2003) at 8-10, online: Housing for All
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 297
common ownership may not be for everyone, and the particular relations
of interdependence it involves may not be necessary for authentic choice.
B. Equality of Autonomy and the Trade-Offs of Common Ownership
Designing a common-ownership regime that has the potential to foster
greater equality of autonomy involves difficult trade-offs. The notion of
equality of autonomy that I propose is grounded in value pluralism. It
suggests that common-ownership regimes should promote greater equali-
ty in multiple, equally fundamental dimensions of autonomy, namely
negative freedom, equality of access to basic material resources, relational
self-determination, and responsibility. These dimensions of autonomy are
incommensurable and sometimes conflict with each other. In order to in-
crease equality in one dimension of autonomy, it may be necessary to curb
another dimension of autonomy. Typically, increasing equality in the posi-
tive or relational dimensions of autonomy requires limiting the negative
freedom of current co-owners. How do we choose between conflicting di-
mensions of autonomy?
In Part I, I discussed two ways that scholars have dealt with these
tensions. One is to argue that co-owners have consented to these trade-
offs. The other is Dagan and Hellers liberal commons balancing. Both of
these responses, I suggested, are unsatisfying. The former raises difficult
questions about the economic and social constraints on consent. The latter
fails to discuss the hard cases where trade-offs simply cannot be avoided.
In this section, I suggest another way to deal with the trade-offs of com-
mon ownership. I argue that when we ground the commitment to equality
of autonomy in the context of specific resources, the trade-offs of common
ownership appear less intractable. The peculiar characteristics of differ-
ent resources, and the interests that they involve, guide and constrain
normative reasoning. Often, it will be possible to balance different dimen-
sions of autonomy. When balancing is not possible, arguments about the
nature and the significance of the specific resource for thick autonomy
justify equalizing positive freedom or relational autonomy, rather than
maximizing negative freedom.140
140 A resource-specific approach is not new to property law. American courts have long en-
gaged in resource-specific reasoning, for example, when deciding cases involving water,
oil, and gas: see e.g. Eric T Freyfogle, Context and Accommodation in Modern Property
Law (1989) 41 Stan L Rev 1529 [Freyfogle, Context and Accomodation]; Craig An-
thony (Tony) Arnold, The Reconstitution of Property: Property as a Web of Interests
(2002) 26:2 Harv Envtl L Rev 281. And property scholars have also repeatedly theorized
a resource-specific approach. From the 1920s to the1950s, a group of French and Italian
law professors proposed a full-fledged resource-specific theory of property, which they
described, visually, as a tree. The trunk of the property tree is the owners right to ex-
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Designing a common-ownership regime that promotes and accommo-
dates different dimensions of autonomy is a resource-specific design pro-
cess that involves several steps.
First, it requires Aristotelian practical reasoning. Gregory Alexander
has described this practical reasoning as fitting and refitting until a
sense of complementarity between the different dimensions of autonomy
clusively control the use of a resource, mindful of propertys social function. For the the-
orists of the tree model, social function evokes a plurality of goals: egalitarian distri-
bution of resources and communitarian management of resources, as well as productive
efficiency. The branches of the property tree are the multiple resource-specific property
regimes present in modern legal systems: family property, agricultural property, af-
fordable-housing property, industrial property, etc. Each of these branches requires a
different balance between the plural values evoked by the social function of property.
And for each of these branches, this balance of values translates into specific rules lim-
iting and structuring owners control rights: see Anna di Robilant, Property: A Bundle
of Sticks or a Tree? 66 Vand L Rev [forthcoming in April 2013]. The resource-specific
design that I propose also builds on an emerging contextualism in American property
law. Eric Freyfogles work on natural resources shows that property law has long been
understood as a matter of context, relativity, and accommodation: Freyfogle, Context
and Accommodation, supra note 140; Eric T Freyfogle, Water Justice [1986] 2 U Ill L
Rev 481. Thirty years ago, Margaret Radin was the first to recast certain aspects of ex-
isting property doctrine in light of the relationship between types of property and per-
sonhood: supra note 122. And recent developments in property theory suggest that a
pluralistic and contextualist approach, similar to the one proposed by the Europeans in
the 1920s1950s, is gaining new prominence. In his recent book, Hanoch Dagan concep-
tualizes property as a set of property institutions that bear a family resemblance but
that take on different forms in different social settings: Property: Values and Institu-
tions (Oxford: Oxford University Press, 2011). See also Hanoch Dagan, Reimagining
Takings Law in Gregory S Alexander & Eduardo M Pealver, eds, Property and Com-
munity (Oxford: Oxford University Press, 2010) 39:
Rather than a uniform bulwark of exclusion or a formless bundle of rights, I
believe that property should be construed as it actually is in law and in life: a
set of institutions, each constituted by a particular configuration of rights.
More precisely: the meaning of property, the content of an owners entitle-
ments, varies according to the categories of social settings in which it is situ-
ated, and according to the categories of resources subject to property rights.
…
…
… Because society regards different resources (such as land, chattels, copy-
right, and patents) as variously constitutive of their possessors identity, the
law treats them differently and subjects them to different property configura-
tions.
Correspondingly, the appropriate level of constitutional protection ensured
to property should also depend on this dimension (ibid at 48-49 ×.).
The specific variant of this approach to property analysis that I advance in this article
builds on Talha Syed, An Analytics of the Commons: Resources-Values-Entitlements
[forthcoming in 2013].
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 299
is achieved.141 This fitting and refitting is contestable, but not arbitrary,
because it is tailored to the specific resource: it requires discussing the
characteristics of the specific resource. For example, resources differ in
whether they are natural or human made, in how scarce they are, in their
degree of rivalrousness and excludability, and in whether they are renew-
able or non-renewable, fragile or durable, and discrete or interconnected
in essential ways to natural or human ecosystems.
Further, resources differ in the values and interests they implicate.
Housing, commercial real estate, urban green space, and water all differ
in how relevant they are to the different dimensions of autonomy. We will
need to produce different accounts of the purpose and meaning of the re-
source. To choose between competing accounts, we may look at which one
makes better sense of the resources historical meaning or its current so-
cial meaning, as reflected in the existing legal materials and in the rules
regulating it. But ultimately, we are carried onto contested moral ter-
rain, where we cant remain neutral toward competing conceptions of the
good life.142
Arguments about the relevance of a resource for real autonomy help to
justify arguments about the just distribution of the resource. Legal engi-
neers can draw on a strand of contemporary social and normative theory
that offers a goods- or institution-specific answer to questions of distribu-
tive justice. Michael Walzer argues that every social good or set of goods
constitutes a distributive sphere within which only certain distributive
arrangements are appropriate. It is the shared meaning of goods, which is
historical and culture-specific, that determines the appropriate distribu-
tion of goods.143 In Michael Sandels honorific and teleological theory of
justice, the just distribution of a certain resource depends on its purpose
and on the values and virtues it honours.144 The choice between strictly
egalitarian principles of allocation, principles based on status, time-
141 Alexander, supra note 19 at 1049. For Alexander, this complementarity reasoning
means viewing values not in binary, or zero sum terms, … [by] choos[ing] one and dis-
card[ing] the other. Rather, values are pieces of [a] … puzzle [that must fit with each
other]. … There is no rejection of values, no trumping (ibid). Values are seen in relation
with each other.
142 Michael J Sandel, Justice: Whats the Right Thing to Do? (New York: Farrar, Strauss
and Giroux, 2009) at 260.
143 See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New
York: Basic Books, 1983).
144 Supra note 142 at 188 (discussing the teleological goals inherent in Aristotles example
that, in distributing flutes, one must seek out the best flute players).
300 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
related principles, desert or interpersonal comparisons of welfare depends
on the characteristics of the goods to be allocated.145
Finally, designing a commons requires the analytical ability to identi-
fy which entitlements are core elements of fostering the values we have
associated with the specific resource and which entitlements can be modi-
fied, added, or dropped to expand access to the resource. We need to crea-
tively configure co-owners bundles of entitlements over the common re-
source so as to equalizeand when possible, maximizethe dimension or
dimensions of autonomy relevant to the particular resource.146
In some cases, this resource-specific approach will help avoid or mini-
mize difficult trade-offs. Where forgoing some degree of autonomy is una-
voidable in the commitment to greater equality of autonomy, a resource-
specific analysis will uncover normatively appealing justifications for legal
rules that impinge on individual co-owners autonomy. It will show that
these sacrifices are not illiberal. Rather, they are consistent with a
thicker, multi-dimensional notion of autonomy.
In the next section, I present two applications of this approach. I focus
on the design of common-ownership regimes for two resources that are
important preconditions for equality of autonomy, namely affordable
housing and urban green space. I show how a resource-specific reconfigu-
ration of property entitlements helps to make and justify some of the most
difficult design decisions that regulators and courts face in outlining the
legal regime of affordable-housing co-operatives and community gardens.
145 Anna di Robilant, The Virtues of Common Ownership (2011) 91:4 BUL Rev 1359 at
1372. See also Jon Elster, Local Justice: How Institutions Allocate Scarce Goods and
Necessary Burdens (New York: Russell Sage Foundation, 1992).
146 See Lee Anne Fennell, The Unbounded Home: Property Values Beyond Property Lines
(New Haven: Yale University Press, 2009) (offering an example of this creative recon-
figuration of entitlements). Fennell reconfigures the traditional home ownership bundle
of rights so as to reflect the many values that homeowners seek from housing as a good
in the early twenty-first century United States. Residential property not only serves as
a resource in its own right but also as a placeholder for a quite different set of resources
such as schools, ambiance, association, etc. Reconfiguring the home ownership bundle
involves developing new forms of alienable entitlements such as tradable entitlements
to engage in acts with aesthetic impacts and even tradable entitlements relating to as-
sociation with preferred neighbours. It also involves reconfiguring home ownership in a
way that decouples the investment volatility associated with off-site factors from the
homeowners bundle: see ibid at 96-119, 173-96.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 301
C. Applications
1. Affordable-Housing Co-operatives
As discussed in Part I, affordable-housing co-operatives share the enti-
tlements typical of home ownership between the owner of residential
property and some outside party representing the interests of a larger
community, a public entity, or a private non-profit organization. Middle-
or low-income buyers who meet certain eligibility criteria gain title to res-
idential property. They acquire all the sticks of a homeowner: the right
to use the property (i.e., to occupy it and to make decisions about its
maintenance and improvement), the right to be immune from having
their property taken, and the right to transfer (i.e., to pass the property to
their heirs or to sell it). However, the outside party retains some control of
both the right to use and the right to transfer. The property is to be occu-
pied by the owner on a continued basis and subletting is restricted.
Maintenance and improvements are subject to control by the co-
operatives governing body. The resale price is predetermined or the re-
sale process is controlled, or both. Finally, although the homeowner has
the right to pass her property to her heirs, the affordable-housing regime
imposes certain conditions on inheritance, meaning that not every heir
will have the right to occupy the property.
Affordable-housing co-operatives have become an increasingly attrac-
tive response to the shortage of good-quality affordable housing. New
York has historically been at the forefront of the promotion of affordable-
housing co-operatives. The 1955 Mitchell-Lama Act and then the Urban
Homestead Assistance Board, an NGO that began in the 1970s during a
wave of abandonment and foreclosure of buildings, facilitated the conver-
sion of rental housing into affordable-housing co-operatives.147 In recent
years, many US cities have followed the lead. The city of Berkeley reacted
to the loss of the rental-housing portion of the citys inclusionary zoning
program by supporting the creation of new limited equity housing.148 In
2009, the Palmer/Sixth Street Properties, LP v. Los Angeles (City of) deci-
147 NY Priv Hous Fin Law 10 (Consol 2012) [Mitchell-Lama Act]; See Gordon D MacDon-
ald & Rosalind Tough, New York City: Changing Social Values and the New Housing
(1963) 39:2 Land Economics 157.
148 See the documentation available from the Berkeley City Council: memorandum from
Councilmember Linda Maio to Honorable Mayor and Members of the City Council, Fa-
cilitating Cooperative Home Ownership Units (10 June 2008), online: City of Berkeley
California region generally, see Allan D Heskin & Dewey Bandy, Limited-Equity
Housing Cooperatives in California: Proposals for Legislative Reform (1989) 1:1 CPS
Brief 1, online: Housing for All
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sion149 invalidated a city ordinance requiring that twenty per cent of the
rental units built must be affordable. Similarly, the now-dissolved Chica-
go Mutual Housing Department included the development of shared equi-
ty home ownership in its 20042008 affordable-housing plan.150
Shared equity home ownership promotes equality of autonomy by
making housing available to middle- and lower-income individuals and
families, a fundamental material precondition for autonomy, as well as for
the relational benefits of an active community of neighbours. According to
their advocates, shared equity co-operatives perform better than other
types of subsidized housing in terms of affordability. The co-operative can
use the entire property to secure up to ninety-eight per cent blanket fi-
nancing because it holds the deed to the property. This arrangement al-
lows for down payments as low as two per cent.151 Most importantly,
shared equity co-ops preserve affordability over the long term. The equity
formula that specifies the price at which shares can be resold works to-
gether with the establishment of income maximums for prospective buy-
ers in order to keep the units within the financial reach of predetermined
income groups. By contrast, programs that use subsidies to sell homes to
low-income buyers at below-market prices do not preserve the affordabil-
ity of the housing for future buyers, because the unit may subsequently be
sold at its market price.152 Shared equity co-operatives also perform better
than other affordable-housing tools in terms of housing quality. Limits on
use rights, such as the co-operative boards direct control of maintenance
decisions, translate into good-quality housing. By contrast, public housing
has largely failed to deliver decent-quality housing units. The financial
structure of public housing programs, as well as inadequate funding, has
led to deferred maintenance and consequent building deterioration.153
Second, shared equity co-ops are effective means for equalizing access
to the relational dimension of autonomy. They facilitate the development
of vibrant and integrated neighbourhoods. While traditional public hous-
ing has often created conditions of social distress by concentrating the
149 175 Cal App (4th) 1396 (available on WL Can) (App Ct 2009).
150 See Chicago Mutual Housing Network & University of Illinois at Chicago, Nathalie P
Voorhees Center for Neighborhood and Community Improvement, Affordable Housing
Cooperatives: Their Conditions and Prospects in Chicago (April 2004), online: Housing
for All
151 See ibid at 12.
152 See Davis, supra note 51 at 90-95.
153 See Michael H Schill, Distressed Public Housing: Where Do We Go from Here? (1993)
60:2 U Chicago L Rev 497 at 502-503; J Peter Byrne & Michael Diamond, Affordable
Housing, Land Tenure, and Urban Policy: The Matrix Revealed (2007) 34:2 Fordham
Urb LJ 527.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 303
most disadvantaged segments of the population in segregated ghettos,
shared equity co-ops have been successful at implementing mixed-income
housing.154 The participation of mixed-income residents in co-operative
governance results in higher levels of social integration and stimulates
community involvement and organization. Third, low monthly occupancy
and operating costs, combined with home ownership training prior to pur-
chase and foreclosure prevention assistance, ensure security of tenure,
which in turn promotes neighbourhood stability.155 Finally, shared equity
co-operatives offer ample opportunity for individual development and ed-
ucation. By participating in management or in democratic co-operative
governance, members acquire new skills and greater capacity for personal
mobility.156
Limits on the right to use and the right to transfer are crucial in order
to secure these benefits. At the same time, these limits significantly erode
co-owners negative freedom. Limits on the right to use force owners to re-
linquish independence, shrinking their control over their living space.
Limits on the right to transfer make exit more costly and curtail owners
ability to build wealth. In other words, the design of shared equity co-ops
involves a trade-off between full negative freedom for current co-owners
and greater equality of positive and relational autonomy for the present
and future generations of lower-income buyers. I believe that grounding
the commitment to equality of autonomy in the context of housing as a
specific resource helps us to discern which of these trade-offs may be min-
imized and which are unavoidable but can be justified with normatively
appealing arguments.
In the specific context of housing, restrictions on use are particularly
troublesome and should be minimized because ample use entitlements are
crucial to advance the special interests implicated by housing as a re-
source. Arguments that emphasize the special nature of housing are
prominent in law and policy debates.157 The subjective importance of the
home (i.e., the idea that a home is crucial to an individuals identity and
self-expression, serving fundamental interests such as individual liberty,
privacy, and security), has long pervaded North American culture. It is re-
flected in a wide range of legal doctrines that treat the home as special,
154 See ibid at 567-75; Susan Saegert et al, Limited Equity Co-ops as Bulwarks Against
Gentrification [unpublished, archived at the City University of New York Graduate
Center], online: The Graduate Center: City University of New York
155 See Davis, supra note 51 at 95-101.
156 See ibid at 111-14; Kennedy, supra note 54 at 92.
157 See Iglesias, supra note 66 at 513-14.
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from criminal law, to landlord and tenant law, to family law.158 Further,
the idea that housing is a fundamental human right is another central
theme of housing law and policy discourse. Each individual has a legal
right to housing that is decent, affordable, and secure. The notion of a
right to housing is reflected in doctrines such as the implied warranty of
habitability and in the Fair Housing Act.159 In other words, a home is a
fundamental need. It is a requirement for a decent life. It satisfies the
physiological need for shelter and physical safety and stability. Further, it
satisfies the psychological need for emotional stability, privacy, and iden-
tity or self-expression. These sets of needs are crucial preconditions for
individuals to be truly autonomous. Ample use rights serve these funda-
mental interests and hence are a core component of the bundle of rights
pertaining to housing as a resource.
A continued occupancy requirement limits an owners ability to make
her own life plans. A home is a necessity because it provides an individual
with the physical and psychological stability necessary to make autono-
mous choices regarding ones career, family, interests, and commitments.
A unit owner may need to be absent for a prolonged period to assist a fam-
ily member, to volunteer in a political or charitable project, or to nurture
her spirituality by retiring for a year in a monastic community. To be free
to pursue these options, the owner needs to know that her unit will re-
main available for her and will generate a minimum income to help fi-
nance these projects.
While occupancy requirements stifle owners material ability to form
and pursue their life plans, the goal of preserving affordability can be met
by regulating leasing and subletting. In the scheme that I suggest, the
leasing or subletting of units is subject to eligibility approval through the
same procedure that governs approval of new unit owners. Further, to
preserve affordability, there is a cap imposed on the amount of rent that
owners may charge. Finally, this rent is shared between the unit owner
and the sponsor or the co-operative. The former is granted a fair return on
her investment in the unit, including the value added by any improve-
ments. The latter retains the surplus, if any, that is determined by factors
beyond the owners control (e.g., changes in the regions economy or in
zoning law).160 This design enables mobility for the owner, availability of
the unit for other low-income applicants during the owners absence, and
allocation of the surplus portion of the rent to the sponsor or the co-
158 See ibid at 533-34.
159 42 USC 3601 ff.; Iglesias, supra note 66 at 544. See also Frank I Michelman, The Ad-
vent of a Right to Housing: A Current Appraisal (1970) 5:2 Harv CR-CLL Rev 207
[Michelman, Right to Housing].
160 See Kennedy & Specht, supra note 54 at 271.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 305
operative. The sponsor or co-operative can then invest the surplus in the
project by subsidizing new units or improving the facilities.161
Another set of limits on the owners right to use relates to mainte-
nance and improvements. Unit owners are required to maintain their
homes in good repair and are subject to control over the improvements
they choose to make to increase the use value or the resale value of their
units. Maintenance requirements are deemed necessary to preserve the
habitability of the unit and to avoid major repair costs for the next low-
income buyer who will someday purchase the unit.162 Standards of good
repair may be minimalist, requiring maintenance according to local build-
ing codes or insurance specifications. Standards of good repair may also
be more demanding according to neighbourhood compatibility. In the
scheme that I propose, owners are required to maintain their property in
compliance with the local regulations. This maintenance requirement is
preferable to the others because it simply reflects the duties imposed by
legislation on all homeowners. It does not delegate the power to set
maintenance standards to private insurance companies, and it does not
impose more demanding requirements that might be justified in a condo-
minium or a subdivision, but which would burden low-income owners.
Limiting the improvements that owners may choose to make to avoid
gold plating163 is typical of limited equity home ownership. Limits usually
concern both the type of improvements allowed and the value that these
improvements add to the owners equity. In the strictest scheme, the
sponsors prior approval is required to ensure quality control, but once
approved, none of these improvements add to the owners equity or to the
resale price. In the most liberal schemes, prior approval is not required,
and the sponsor of the co-op board determines which improvements will
be credited toward the owners equity. Critics of shared equity schemes
argue that these limits force owners to relinquish their independence,
leaving them with too little choice and too little control over their per-
sonal living space.164 The ability to determine improvements free from
external control is an important outlet for self-expression that allows the
161 What is sacrificed under this scheme is the ability of the owner to secure the transform-
ative benefits that come with continued residency and involvement in the residents
community. But emotional stability, a sense of home, and civic engagement, while
transformative, cannot be paternalistically imposed on low-income owners. Contrary to
the material stability that comes from being able to rely on the continued availability of
ones unit, these benefits are highly subjective, not necessarily linked to a real estate
unit, and also may be derived from other sources.
162 See Davis, supra note 51 at 60-61.
163 See Kennedy, supra note 54 (defining gold plating as improvements that make the unit
unaffordable at 100).
164 Davis, supra note 51 at 90.
306 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
owner to maximize the use value of her home. It is also a means for
wealth creation as the owners investment is typically reflected in the ap-
preciated market value of the home. On the other hand, costly improve-
ments or major overhauls might increase the price of the unit beyond
what would be affordable for future buyers of modest means.165
The trade-off in this case can be minimized. The sponsor or the co-op
can publish a list of pre-approved improvements, the value of which is
credited toward the owners equity. The credit is calculated based on the
change in the property value as a result of the improvement. This mecha-
nism preserves the owners autonomy in that it allows relatively ample
opportunities for self-expression and some degree of wealth creation. Also,
it is not more stringent than the limits faced by a great number of owners
of market-rate residential property, for example in condominium com-
plexes or subdivisions where architectural committees exert a variety of
quality and aesthetic controls. The owner retains the ability to design and
control living space by choosing among a variety of pre-approved func-
tional and aesthetic improvements. What is foregone is the opportunity to
receive credit for improvements that are luxuries, such as a Jacuzzi or
Italian mosaic tiles. The ability to make luxurious improvements, howev-
er, is not crucial for self-expression when other reasonable options for per-
sonalizing the home are available. The owner also retains some ability to
generate wealth by investing in the improvement of her home. The value
credited toward the owners equity depends not on the investment but ra-
ther on the actual increase in the units market value. This arrangement
subjects owners of shared equity housing to the same risks that any
homeowner faces. Even in market-rate housing, homeowners are not
guaranteed a return on their investments. It is the market that deter-
mines which improvements increase the propertys appraised value and
by how much.
Regulating subletting and pre-approving specific improvements are
ways to minimize the trade-offs and to fit the different dimensions of
owners autonomy together. By contrast, limits on the right to transfer are
more difficult to minimize. A resale formula establishes an upper limit on
the price for which … [the unit] may be resold whether it is sold back to
a sponsoring organization [or the co-op] or sold directly by one homeowner
to another.166 Resale formulas vary significantly, but they are [usually]
designed to allow homeowners to recoup their original downpayment, to
recover any payments that have gone toward the amortization of their
mortgage, and to realize a reasonable return on the homeowners invest-
165 See Iglesias, supra note 66 at 526-27.
166 Davis, supra note 51 at 64.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 307
ment.167 These limits are the very design features that make it possible to
preserve affordability over many years. They are unavoidable. Nonethe-
less, they significantly affect owners. They deprive owners of the full
wealth-generating benefits of home ownership. Home ownership is a
source of wealth in that it builds savings for households that otherwise
might not be able to put money aside for the future. Home ownership also
creates opportunities for capital gains when real estate markets are ris-
ing.
Scholars and policy-makers who believe in the potential of shared eq-
uity home ownership downplay the negative effects of these limits on
owners negative and positive freedom with a variety of arguments. First,
they argue that most owners do build wealth during their time in shared
equity housing despite resale restrictions.168 Second, experts point to the
fact that low-income owners of market-rate housing often build very little
wealth through home ownership. Since the market-rate housing that low-
income people can afford tends to be old, in need of repair, and located in
depressed areas, there is little or no market appreciation. Moreover, low-
income homeowners can only extract wealth from their homes if they are
able to hang on to them for many years … [and] to trade up to bigger and
better housing over time. Too often, they do neither.169 Third, advocates
of shared equity home ownership argue that the limited equity gained at
the time of resale is compensated by a variety of other benefits to owners.
Owners still benefit from the transformative effects of home owner-
ship:170 home ownership helps low-income people to improve their class
standing, social status, the kind of community they live in, and the quali-
167 Ibid at 65.
168 A recent study of the Burlington Community Land Trust showed that homeowners re-
alized a very respectable seventeen to twenty per cent return over a span of fourteen
years when reselling their homes under one resale formula (John Emmeus Davis &
Amy Demetrowitz, Permanently Affordable Homeownership: Does the Community Land
Trust Deliver on Its Promises? A Performance Evaluation of the CLT Model Using Re-
sale Data from the Burlington Community Land Trust (Burlington, Vt: Burlington
Community Land Trust, 2003) at 18, table 5, online: Community-Wealth.org
also found that, while owners of market rate homes earned a thirty-two per cent return
under normal conditions, owners of limited equity housing earned twenty-nine per cent
(ibid at 19, table 6). Both of these analyses note that these returns far exceed what
owners would have realized had they put their money into a low-risk investment like a
mutual fund (ibid at 20).
169 Davis, supra note 51 at 8.
170 See Thomas M Shapiro, The Hidden Cost of Being African American: How Wealth Per-
petuates Inequality (Oxford: Oxford University Press, 2004) at 1-18, 183-99 (discussing
transformative assets).
308 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ty of their childrens schools.171 Further, owners enjoy greater stability of
tenure than low-income owners of market-rate housing, as well as greater
opportunities for social life and civic engagement. These aspects might be
just as important as wealth creation in improving the lives of low-income
[people].172
While these arguments are powerful, a more transparent defence of
the limited right to transfer is to admit that the restriction is a significant
one but also to argue that this choice is justified by the commitment to
equalizing autonomy rather than maximizing it for some. Again, it is the
special characteristics and interests implicated by the housing as a re-
source that justifies this outcome.
Housing is an economic good that is produced and exchanged on the
market.173 The investment value of a home is derived from both the in-
crease in property value through appreciation and the long-term savings
compared to renting due to the effects of inflation. Appreciation in the
market value of housing may be supplemented by the owners personal
contribution of money and labour toward improvement of the property.
What arguments about housing as an economic good obscure, however, is
the fact that much of the appreciation is caused by societal factors out-
side of the homeowners control, … [where] public investment in the city
as a whole, private investment in the surrounding neighbourhood, chang-
es in the regional economy, and changes in the way residential real estate
is regulated, financed, and taxed are among the main factors.174
Who deserves the surplus portion of the propertys market value that
reflects external societal factors? Lockean theory has been plagued from
the start by the difficulty of justifying a private right to that portion of the
market price that reflects [societal factors and] scarcity rents.175 How do
we get from the Lockean principle that we own what we mix with our la-
bour to the enrichment of the full market value of our property, including
rents? The moral appeal of the Lockean theory lies in its promise of pro-
portion between remuneration and exertion.176 But the price that a
house fetches on the market results from market scarcity and other socie-
tal factors outside owner exertion. Arguably, the owner owns only the
171 Davis, supra note 51 at 105.
172 Ibid.
173 See Iglesias, supra note 66 at 514.
174 Davis, supra note 51 at 65.
175 Barbara Fried, Wilt Chamberlain Revisited: Nozicks Justice in Transfer and the
Problem of Market-Based Distribution (1995) 24:3 Phil & Pub Aff 226 at 230.
176 Ibid at 228, citing John Stuart Mill, The Principles of Political Economy (Kitchener:
Batoche Books, 2001) at 237.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 309
value that equals her investment in the property, plus a fair return. Soci-
ety has a claim on the rest. If a significant portion of the value belongs to
society, then limiting the limited equity co-operative members ability to
pocket the full equity at the moment of resale appears less difficult to jus-
tify.
A limited right to transfer is also justified because housing is a fun-
damental need. The US Supreme Court has long been imbued with … the
idea of housing as a need of outstanding importance, capable of generat-
ing unconventional legal claims.177 As early as 1921, the court held that
[h]ousing is a necessary of life.178 If housing is a resource of fundamental
significance to humans, then it should be provided to all. Securing hous-
ing for individuals requires more than simply the negative assurance that
housing will be available without arbitrary interference and according to
the market rules normally governing access to goods. Rather, securing
housing also requires the positive provision of means for the acquisition of
housing, be it the provision of specific housing in kind or the provision of
rent supplements.
The right to housing claim is distributive in essence. Socio-economic
rights claims are distributive claims packaged in politically palatable
rhetoric.179 The term right suggests a correlative duty on the part of an-
other party, usually the state, to recognize and provide for what the right
entails.180 Making a plain distributive argument has advantages over
couching the argument in the language of rights. First, it dispels the
vagueness of rights claims and forces us to confront a number of more
177 Michelman, Right to Housing, supra note 159 at 210.
178 Block v Hirsh, 256 US 135 at 156, 41 S Ct 458 (1921).
179 See memorandum from Talha Syed to Anna di Robilant, Rights Arguments: An Ana-
lytics [nd]. Syed notes that
[t]he following is the typical form taken by assertions of positive, socio-
economic rights (at least when they are presented lucidly): X is a fundamen-
tal need of all humans, and therefore all persons have a right to X. Thus,
there are two parts: (1) the identification of some candidate X as being of
fundamental significance for all humans; and (2) an assertion that what
should follow normatively from (1) is the provision of such goods to all per-
sons as a matter of right. Regarding (1), the candidates can be anything
from minimum level of food, to basic health care, to decent shel-
ter/housing, to a jobwhat unites them is that they are claimed to be
basic physical or institutional goods, with basic meaning required for all
humans to have a decent life. The second unifying feature of such claims is
that securing the good(s) for individuals is understood to require more than
simply the (negative) assurance of the absence of coercive interference in
pursuit of such goods; rather, also needed is the (positive) provision of re-
sources or other means for the acquisition of such goods (ibid at 3).
180 Iglesias, supra note 66 at 541.
310 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
concrete questions. Right to housing claims often take the form of simple
assertions. By contrast, housing as a need engages a series of informa-
tive questions: How intense is this need? How much housing is needed?
How relative or idiosyncratic should the standard to determine whether
the housing is adequate be? And further, how absolute should the assur-
ance that this need will be satisfied be?181 Second, it avoids the easy rebut-
tal that the political-moral claim of a right to housing is only weakly re-
flected in legal-institutional materials (i.e., that courts and legislatures
have stopped short of recognizing a full-blown individual right to hous-
ing).182
2. Community Gardens
Community gardens are another form of common ownership with the
potential to promote greater equality of autonomy by making green space,
and the social, environmental, and health benefits that it provides, avail-
able to residents of distressed communities on a more equal basis. Sur-
prisingly, community gardens have received little attention from property
scholars. Community gardens arise when [citizens] … grow food, flowers,
or greenery on [vacant urban land] … that they do not own.183 Communi-
ty gardens may be considered a form of common ownership because own-
ership entitlements are split. A municipality, land reserve agency, or land
trust holds title as a public entity or private owner. Gardeners hold use
rights, often forming a community-garden organization that takes the
form of an unincorporated association or a non-profit corporation.184 The
broad outline of the ownership arrangement of community gardens is of-
ten set forth in state legislation or local ordinances. Typically, the munici-
pality or other public or private titleholder leases the land to the garden-
ers association for a nominal fee or license. The lease is often short-term,
and it may contain a clause that allows the public or private owner to re-
gain possession of the land at any time.185 Often, the public entity also as-
181 See Michelman, Right to Housing, supra note 159 at 207-208.
182 Iglesias, supra note 66 at 549. See Michelman, Right to Housing, supra note 159 at
209.
183 Jane E Schukoske, Community Development Through Gardening: State and Local Pol-
icies Transforming Urban Open Space (2000) 3:2 NYUJ Legis & Pub Poly 351 at 354-
55. See generally Adrianne C Crow, Developing Community Gardens: Removing Bar-
riers to Improve Our Society (2009-10) 2:2 Kentucky Journal of Equine, Agriculture &
Natural Resource Law 219; Dorothy A Borrelli, Filling the Void: Applying a Place-
Based Ethic to Community Gardens (2008) 9:2 VJEL 271 at 273-75.
184 See Schukoske, supra note 183 at 365-71.
185 See ibid (noting that the duration of garden lot leases is specified in various authoriz-
ing laws, and ranges from as long as five years … in Seattle, to two years in Boston, to
as short as one growing season under New York law. Some of these leases are termi-
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 311
sumes the duty of providing material support and assistance to the gar-
deners.186
Gardeners use rights are subject to a variety of requirements and du-
ties. Typically, there are entry rules. The gardeners may be required to
demonstrate a purpose including agriculture, gardening, or economic de-
velopment. They may also be required to prove that the association has
operated for at least a year and has a history of community gardening, or
that the association is sponsored by a recognized community-gardening
organization. Another frequent entry requirement is need.187 Local ordi-
nances governing community gardens may assign priority to needy indi-
viduals and families when allocating the lots. Gardeners income rights
(i.e., the right to derive income from the gardening activity) are also lim-
ited. Under most local ordinances, produce grown in the community gar-
dens may not be sold.188 Further, gardeners have duties. Most important-
ly, most community-gardens statutes require the gardeners association to
obtain property insurance and general liability insurance, and to accept
liability for injury or damage resulting from the use of the land for com-
munity gardening.189
Community gardens have been an important and visible feature of
American cities since the 1980s.190 The New York City Green Thumb pro-
ject is probably the most well-known example of community gardens or at
least the one that has attracted the greatest media attention.191 Many of
nable on short notice. For example, [t]he Adopt-A-Lot program in Baltimore, Mary-
land … provides renewable one-year leases, but the city reserves the right to terminate
the agreement upon thirty days notice to use the lot for another public purpose, and up-
on five days notice in the event of complaints concerning the use of or conditions of the
lot at 365 [footnotes omitted]). See also Crow, supra note 183 at 229; Borrelli, supra
note 183 at 282-83.
186 See Schukoske, supra note 183 at 376 (noting that under the New York statutory
scheme, municipal corporations may contribute initial site preparation, water systems,
perimeter fencing, and other necessary equipment).
187 See ibid (noting that, for example, the Tennessee Community Gardening Act of 1977
(Tenn Code Ann 43-24-101 (2012)) gives priority to needy individuals and families in
allocating the lots at 377).
188 See ibid (recognizing that [u]nder Tennessee law, produce grown in community gar-
dens may not be sold).
189 Ibid at 376. See Crow, supra note 183 at 228.
190 According to one source, Currently, approximately 18,000 community gardens have
been established across the United States and Canada (Borrelli, supra note 183 at
274).
191 See e.g. Robert Fox Elder, Protecting New York Citys Community Gardens (2005)
13:3 NYU Envtl LJ 769 at 771-76; Lynn A Staeheli, Don Mitchell & Kristina Gibson,
Conflicting Rights to the City in New Yorks Community Gardens (2002) 58:2-3 Geo-
Journal 197; Sheila R Foster, The City as an Ecological Space: Social Capital and Ur-
312 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the gardens in New York City were created at the time of the fiscal crisis
of the 1970s, when thousands of housing units scattered around the city
were abandoned by their owners and eventually acquired by the city.
There was no money to clear the lots because the city was on the verge of
bankruptcy. Buildings deteriorated and collapsed, and the depressed
market meant that few lots were sold. The gardens were formed by local
residents reacting to the degeneration of their neighbourhoods, often with
no city authorization. The city began to recognize the gardens legally, and
in 1978, it established the Green Thumb project, which offered leases and
assistance to the gardeners. The gardens became the object of much pub-
lic controversy in the late 1990s, when the city sought to auction off the
gardens land for residential and commercial developments.192
Community gardens foster greater equality of autonomy by securing
access to important material preconditions for autonomy such as green
space, clean air, and healthy food for residents of poor and minority
neighbourhoods.193 Green space and clean air are scarce and distributed
unequally. Civil rights organizations and environmental law experts have
raised the question of environmental racism (i.e., concern over the une-
qual distribution of environmental burdens and benefits).194 In their effort
to prevent the auctioning of the Green Thumb gardens, the New York
City gardeners emphasized the unequal distribution of green space. In
New York City Environmental Justice Alliance v. Giuliani, the plaintiff
claimed that a violation of the Civil Rights Act of 1964s regulatory
scheme had occurred because the sale of the gardens had a disproportion-
ately adverse impact on the citys African American, Asian American, and
Hispanic populations.195
Community gardens also boost residents relational dimension of au-
tonomy. They promote the development of vibrant and active communi-
ties. Community gardens are crucial triggers of what scholars call a
neighbourhoods social capital. The term social capital describes fea-
ban Land Use (2006) 82:2 Notre Dame L Rev 527 at 534-38; Christopher M Smith &
Hilda E Kurtz, Community Gardens and Politics of Scale in New York City (2003)
93:2 Geographical Review 193.
192 See Elder, supra note 191 at 777; Schukoske, supra note 183 at 385-88.
193 See ibid at 352. See also Elder, supra note 191 at 792-94.
194 See Regina Austin & Michael Schill, Black, Brown, Poor & Poisoned: Minority Grass-
roots Environmentalism and the Quest for Eco-justice (1991) 1 Kan JL & Pub Poly 69;
Rachel D Godsil, Remedying Environmental Racism (1991) 90:2 Mich L Rev 394; Jon
C Dubin, From Junkyards to Gentrification: Explicating a Right to Protective Zoning
in Low-Income Communities of Color (1993) 77:4 Minn L Rev 739.
195 42 USC 2000 (2006). See New York City Environmental Justice Alliance v Giuliani,
214 F (3d) 65 (available on WL Can) (2nd Cir 2000) [Giuliani].
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 313
tures of social organization such as networks, norms, and social trust that
facilitate coordination and cooperation for mutual benefit.196 Some schol-
ars contend that there are no substitutes for community gardens in
terms of community creation and revitalization.197 In the struggle against
New York City garden auctions, the citys greening community argued
that the gardens are more than patches of green in the city. They are
spaces where the residents of marginalized areas can gather and mobilize.
As a green activist put it, the gardens are a space of democracy, with a
little d.198
Why is equality of autonomy best promoted through common owner-
ship of urban gardens, rather than through other means, such as regula-
tion and zoning? First, land-use experts note that traditional zoning is of-
ten unsuccessful in protecting a communitys social capital. Traditional
zoning fails to take into account the consequences that development pro-
jects have on the social fabric of the surrounding community because
land-use regulation and decisions often happen in a highly individualized
and ad hoc fashion rather than through a public deliberative process.199 As
Shelia Foster argues, The liberal use of zoning amendments and vari-
ances situate private [developers] interests … as … the main [influence] …
on land use decisions. This dynamic frustrate[s] efforts by communities
to influence the design of new projects in a way that makes them compat-
ible with the social and economic systems in the community.200 Green
zoning provisions that mandate the creation of urban green spaces are
also often inadequate. They tend to leave the responsibility for greening to
individuals rather than fostering social capital.201 Further, implementa-
tion of green zoning often requires, but lacks, significant funding and
strict enforcement.202 Most importantly, environmental justice scholars
and activists note that zoning fails to protect low-income and minority
communities. Zoning often functions as a vehicle for environmental rac-
ism rather than as a remedy to it. Without organizational resources and
196 Robert D Putnam, Bowling Alone: Americas Declining Social Capital (1995) 6:1 Jour-
nal of Democracy 65 at 67, cited in Schukoske, supra note 183 at 354. See also Foster,
supra note 191 at 531.
197 Smith & Kurtz, supra note 191 at 200.
198 Staeheli, Mitchell & Gibson, supra note 191 at 201.
199 See Foster, supra note 191 at 547-48. See also Alejandro Esteban Camacho, Mustering
the Missing Voices: A Collaborative Model for Fostering Equality, Community Involve-
ment and Adaptive Planning in Land Use Decisions; Installment One (2005) 24:1 Stan
Envtl LJ 3 at 11-12.
200 Foster, supra note 191 at 547-48.
201 See Elder, supra note 191 at 794-95.
202 See ibid.
314 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
political visibility, poor minority communities fail to secure zoning protec-
tion.203
While community gardening may be seen as a spontaneous and self-
organized community action that succeeds where traditional land-use
regulation has failed, the success of community gardens depends on the
design of their ownership structure. The shape and distribution of co-
owners entitlements has to enable stability both for the gardeners and
flexibility for the titleholder. Community gardens need permanence in or-
der to deliver their promised benefits: a gardens success cannot be meas-
ured in one season. Cultivation and the creation of social capital happen
over time. On the other hand, the municipality or public entity needs to
have a substantial degree of flexibility to reassess priorities for the use of
scarce vacant urban land. Eventually, the public authority may need to
convert the land occupied by gardens to other uses that benefit the com-
munity at large or disadvantaged segments of the community. For exam-
ple, the garden may be the most suitable land, or the only land, available
for affordable-housing developments.
Once again, the central design question seems to concern exit, and al-
lowing exit involves a difficult trade-off. In affordable-housing co-ops, exit
involves a trade-off between full autonomy for current co-owners, who to
be fully autonomous, need to be able to use and transfer their units freely,
and greater equality of autonomy for low-income buyers, whose need for
good-quality affordable housing is best satisfied by limiting the use rights
and transfer rights of current co-owners. In the case of community gar-
dens, exit may often involve a trade-off between greater equality of auton-
omy for residents of a distressed neighbourhood who seek greater access
to green space and its benefits, and greater equality of autonomy for low-
income people who are homeless or have inadequate housing.
The success of community gardens as a means of fostering more equal
access to clean air, healthy food, and an active social life requires the limi-
tation of the municipalitys ability to exit the common-ownership scheme.
Specifically, such success requires longer leases, with renewal or exten-
sion clauses and without clauses allowing the city to regain possession of
the gardens upon short notice. By making exit more difficult for the city,
however, these design features limit the citys ability to respond to chang-
ing public needs (e.g., the development of new affordable-housing units).
The struggle between New York Citys municipal government and its
community gardeners illustrates this tragic trade-off. In Giuliani, the city
claimed that its plan to develop new housing and facilities for medical and
203 See Dubin, supra note 194 at 764-68.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 315
related services on garden land constituted a legitimate justification for
its actions. The city noted that it would devote some of the redeveloped
land to affordable housing. In the course of the litigation, however, it
emerged that the city had no concrete plan for the provision of affordable
housing.204 While the city may have overstated its commitment to develop-
ing affordable housing, [p]olicies favoring environmental protection [and
the preservation of open green space] are often assumed to conflict with
… [affordable-housing projects].205 This conflict arises because [b]oth af-
fordable housing and … green space … require the same scarce resource,
urban land.206 Moreover, affordable housing and community green space
are important preconditions for autonomy, and access to both is often
framed in the language of rights.207 Right to housing arguments have
long been a part of housing debates and policies, and the idea of a right to
green space is gaining prominence in land-use debates. For example, New
York City gardeners have relied heavily on rights arguments that [place]
an absolute value on green space.208 Because they both require the use of
scarce vacant land, equalizing access to housing in an urban setting
seems to come at the expense of equalizing access to green space.209
In Giuliani, both the district court and the court of appeals insisted on
the incompatibility between the goal of providing new housing and the
goal of protecting the gardens. Both courts privileged the former over the
latter. The district court denied a preliminary injunction seeking to pre-
vent the city from selling the gardens. The court recognized that the gar-
dening community would suffer irreparable harm and declared itself
sympathetic to the plaintiffs needs and concerns. It went on to state,
however, that the City is acting in the public interest in creating afforda-
ble housing, market-rate housing units, elderly medical- and related-care
facilities and other community or municipal facilities, including commer-
cial space in neighborhoods which are predominantly minority and low-
204 See Foster, supra note 191 at 536, n 29.
205 Adrienne Lyles-Chockley, Building Livable Places: The Importance of Landscape in
Urban Land Use, Planning, and Development (2008-2009) 16:1-2 Buff Envtl LJ 95 at
103. See also Brian W Ohm & Robert J Sitkowski, Integrating New Urbanism and Af-
fordable Housing Tools (2004) 36:4 Urb Law 857.
206 Elder, supra note 191 at 800.
207 See e.g. ibid.
208 Ibid.
209 Environmental concerns for green space tend to focus on intergenerational distribution
… [i.e., preserving a healthy environment for future generations], while low-income
housing policy concentrates on existing inequities (Lyles-Chockley, supra note 205 at
103).
316 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
income.210 The court of appeals affirmed the judgment of the district
court. It held that the citys plan to build new housing constituted a sub-
stantial legitimate justification for the citys action and that the plaintiff
had failed to show a less discriminatory option was available to achieve
the citys legitimate governmental goals.211
The trade-off between equal access to green space and equal access to
housing need not be inevitable. If the New York courts had a more plural-
istic understanding of the values implicated by the resource of urban land,
then they could have minimized the trade-off. The New York courts could
have expanded their discussion of the use of vacant urban land beyond
economic or development values to include ecological, social, and ethical
concerns. That expanded discussion would have drawn on existing legal
materials, as well as new scholarly work and emerging social movements.
Instead, both courts decisions reflected a narrow vision of land-use plan-
ning that is governed by an economic ethic. The gardens were character-
ized as vacant land: a scarce resource that had to be developed for the
most valuable use, namely high-end and affordable residential use, and
commercial use. The New York courts thus failed to recognize that the
meaning and value of urban land has been broadened in recent decades.
Courts, scholars, and policy-makers have developed a plurality of urban
land ethics. These new land ethics focus on the complexity of the interac-
tion between physical, biological, and social processes in urban environ-
ments. They emphasize the need to develop urban land by preserving and
integrating different uses. The creation of urban green space is a central
theme of the new land ethics.212
An environmental ethic of urban land use emerged as early as the
1970s. The National Environmental Policy Act of 1969 and its state coun-
terparts required that agencies assess the impact of a proposed land use
on the human environment.213 As a more recent example, the environ-
210 New York City Environmental Justice Alliance v Giuliani, 50 F Supp (2d) 250 at 252
(available on WL Can) (SDNY 1999).
211 Giuliani, supra note 195 at 72.
212 See e.g. Patricia E Salkin, From Euclid to Growing Smart: The Transformation of the
American Local Land Use Ethic Into Local Land Use and Environmental Controls
(2002) 20:1 Pace Envtl L Rev 109; Foster, supra note 191.
213 42 USC 4332 (1970) [NEPA]. Courts have rejected a narrow conception of human en-
vironment as coterminous with natural resources and instead interpreted NEPA as af-
fording a broad protection of citizens quality of life. For example, Hanly v. Mitchell con-
cerned an action to enforce compliance with NEPA regarding the erection of a jail and
other facilities. The court noted that protection of the quality of life of residents included
aspects such as [n]oise, traffic, overburdened mass transportation systems, crime, con-
gestion and even availability of drugs (460 F (2d) 640 at 647 (2nd Cir 1972) (available
on WL Can), cited in Foster, supra note 191 at 549).
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 317
mental ethic of urban land use underlies the wave of smart growth or
new urbanism state and local land use laws that seek to balance urban
development with environmental protection and sustainability.214
While the environmental ethic has largely focused on physical aspects
of land use, other ethics are emerging that place emphasis on less-
palpable aesthetic, ethical, and social aspects of urban land use. For ex-
ample, an ethic that underscores the social significance of city space is
emerging.215 The ability of people who share a space in big cities to share
in small-scale, everyday aspects of public life fosters well-being and self-
respect. A community with sufficient amounts of social capital can also
purchase many other social (and economic) resources that create and
sustain healthy neighbourhoods.216
Urban land-use decisions can either strengthen or undermine a com-
munitys social capital. Legal scholars who embrace a social ethic of urban
land suggest that courts broad interpretations of NEPA and smart
growth zoning ordinances have not gone far enough. These interpreta-
tions have failed to fully grapple with the burdens that land-use decisions
impose on the social ties and networks within a community. These schol-
ars argue that legal doctrine, regulation, and policy regarding urban land
use should recognize the integration between land use and social relations
in urban environments.217
These emerging plural ethics suggest a shift in the way urban land is
valued. They underscore that equal access to the environmental, aesthet-
ic, and social benefits of urban green space is important for human flour-
ishing. It is an important precondition for equality of autonomy. Had the
New York courts acknowledged this new approach to the resource of ur-
ban land, they could have designed a different ownership scheme for
community gardens that minimizes the tragic trade-off between goods
that are all important preconditions for equality of autonomy.
214 See Michael Lewyn, New Urbanist Zoning for Dummies (2006) 58:2 Ala L Rev 257 at
267-70.
215 See e.g. Foster, supra note 191 at 540-41.
216 Ibid at 543. One documented example of such purchasing is a situation where fatalities
among comparable populations of low-income senior citizens during a heat wave were
lower in a community with a vibrant street life and plentiful commercial activity than
in a community marked by crime, vacant lots, and abandoned buildings. This discrep-
ancy was due to the fact that, in the former, seniors were more likely to be visited by
neighbours or to feel safe going outside (ibid at 543-44).
217 See generally Foster, supra note 191.
318 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Following a lawsuit by State Attorney General Spitzer in 2002, the
city and the gardeners reached a compromise agreement.218 The agree-
ment provides a glimpse of how ownership entitlements could be shaped
to allow community gardens to be successful. It could provide a model for
local governments seeking to implement common ownership for communi-
ty gardens. As we have seen, the crucial question is with respect to exit
(i.e., the terms of the lease between the public entity holding title to the
land and the gardeners or gardening associations). The agreement out-
lined a regime where the city has relatively ample exit rights, but the
gardeners retain a degree of security.
Importantly, the agreement granted Green Thumb leases to gardens
not yet registered.219 While cities prefer revocable licenses with gardeners
rather than leases, leases give gardeners greater security of tenure. In
Giuliani, it was easy for the court to find that a license revocable at will
did not provide the gardeners with a legally cognizable interest for stand-
ing to challenge decisions affecting the use of the gardens.
The agreement did not modify the term of the leases, but an ideal
ownership scheme would feature terms long enough to elicit commitment
by gardeners and to realize the social and health benefits of the gardens.
A three- to five-year renewable lease of public lands affords a substantial
period of time for the planning and implementation of the gardens. At the
same time, a three- to five-year term would not hinder the governmental
lessors ability to plan for another use of the land, if needed. For example,
some have noted that three years is well within the time span required to
get new residential construction approved in New York City.220 Addition-
ally, a community garden ordinance may provide for the possibility of
permanent dedication to the parks department after [three to five] …
years continuous use as a community garden.221
218 Memorandum of Agreement, Attorney General of the State of New York and Corpora-
tion Counsel of the City of New York, 17 September 2002, online: NYC.gov
description of the agreement, supra note 191 at 785-88.
219 Ibid at 786; Memorandum of Agreement, supra note 219 at 2. There is a terminological
ambiguity here: Elder refers to leases, but the agreement talks about licenses. In US
property law, a license is revocable at will, while a lease is not. The licenses in the
agreement are not revocable at will (see Rules & Regulations of the New York City De-
partment of Parks & Recreation, 603, online: City of New York Parks & Recreation
equivalent of a lease.
220 Elder, supra note 191 at 798-99.
221 Schukoske, supra note 183 at 391.
COMMON OWNERSHIP AND EQUALITY OF AUTONOMY 319
The need to achieve a good balance between stability for the gardens
and flexibility for the city or other public entity also weighs against re-
newal or extension clauses that would lengthen the lease beyond the rec-
ommended three to five years. Covenants giving gardeners the power to
be tenants for one or more terms beyond the end of the original term
would increase the gardeners security of tenure. Such covenants, howev-
er, would be too restrictive a limit on the citys exit rights. They would
limit the citys ability to respond to new needs.
For the same reason, clauses allowing the city to terminate the
agreement and repossess the land may be an important flexibility-
enhancing feature. Garden advocates have largely viewed such clauses
unfavourably because of their potential to severely undermine the stabil-
ity of the gardens; however, such a position might not always be justified.
Termination clauses should be coupled with duties imposed on the city. In
case of termination, the city would be required to find alternate space for
the gardens to the extent possible.
Section 8 of the agreement provides a promising model of an effective
termination clause. First, it compels the city to provide alternate space for
several gardens in the Bronx slated for development. Additionally, it re-
quires the city to provide cleanup services and assistance with the pro-
curement of alternate sites for the gardens by providing a list of other
available vacant lots, if any, within one-half mile of the existing garden. Fi-
nally, the city is also obligated to restore any damage caused to garden
lots planned for preservation that are disturbed by adjacent construction
projects. Easier, flexibility-enhancing exit for the city should also be bal-
anced with a duty to assist new gardeners in land preparation and by
providing access to water. Studies have shown that access to resources is
important to the success of the gardens. For example, installing a water
line can be both expensive and time consuming.222
A local community-garden ordinance allowing easy exit for the local
government or public agency, coupled with duties to find alternative space
as well as duties of assistance would minimize the tragic trade-off be-
tween green space and affordable housing. However, it would not com-
pletely avoid these trade-offs. Urban land is a scarce resource, and the
need for good-quality affordable housing is pressing. In many instances,
some green space will be lost. Alternative space of a similar size and with
similar characteristics may not be available. Allowing easy exit coupled
with duties, however, would at least trigger a conversation among the ac-
tors involved, namely the municipal government, gardeners, residents,
and affordable-housing organizations. Such a conversation could address
222 See ibid at 367, n 90.
320 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
fundamental questions such as how intense the competing needs are, how
access to green space can be assured, and by what standard the adequacy
of green space should be determined.
Conclusions
In this article, I have argued that we should expand the focus of the
commons debate to include equality of autonomy. In political theory, as
well as in the public imagination, the commons have long been associated
with notions of equality and inclusiveness. We should restore these ideas
to contemporary commons discourse. In times of high inequality and eco-
nomic instability, common-ownership regimes such as land trusts, limited
equity housing co-operatives, neighbourhood-managed parks, and com-
munity-sustained agriculture have the potential to make resources that
are crucial to individuals autonomy available on a more equitable basis.
Further, I have argued that a resource-specific analysis of property enti-
tlements helps make and justify the difficult choices we often face in de-
signing common-ownership schemes that seek to promote equality of au-
tonomy.
The two claims that I made in this article concern normative orienta-
tion and institutional design. I have not weighed in on the larger question
of whether, as some progressive scholars believe, a very large extension
of the commons framework is the way to resurrect an alternative narra-
tive of social inclusion and direct satisfaction of social rights.223 Nor have
I discussed the fear some have expressed that the generalized enthusiasm
for the commons may hide new forms of social control and exploitation.224
I believe that the question of whether common ownership is desirable and
effective depends on the resource: on the characteristics and also on the
values and interests that the resource implicates. Generalized enthusiasm
for common-ownership regimes must be tempered by a sensitivity to the par-
ticulars of the resource, in order to make informed decisions about the values
and interests that society wishes to promote with respect to a given resource
and the kind of property rights that will best give effect to these societal
goals.
223 Ugo Mattei, The State, the Market and Some Preliminary Questions About the Com-
mons (Part five of the Du public au commun project, delivered at LUniversit de Par-
is 6, Paris, 6 April 2011), online: Du public au commun
224 See Goldman, supra note 9 at 3.
