This article examines the theoretical hurdles that the English legal system faced in trying to come up with a coherent conception of public land in the Victorian period. Rapid urbanization and industrialization meant that the pressure to preserve open space was intense, but a conception of public land—land that belongs to everyone—was strikingly absent from English law. “The commons,” this article stresses, is importantly different from “the public.” The absence of the public from the English theory of property helps us see the ways in which the regime of liberal private property continued to carry traces of older customary forms of tenure, and to be governed by ideas (use, access, etc.) that complicate—and, often, contradict—liberal assumptions about the nature of property.And an excerpt:
|William Hartley, Justice Scrutton|
[W]e have inherited from the nineteenth century a certain story about property as an institution whose rise inevitably entails the cancellation of some prior collective. And of the available names for that prior collective (family, status, clan, custom, etc.), none attaches us to it quite like “the commons.” Compared with “commons,” terms like “family,” “status,” “clan,” and “custom” seem both too privative—“the commons” has an openness and flexibility that the unnervingly tribal “clan” or aristocratic “family” clearly lack—and somehow not personal enough—the “commons” grounds an affective warmth that the cold institutionalism of “status” and the archaic proceduralism of “custom” can’t match. The appeal of the commons is that it allows us to lament the privacy of property without, at the same time, having to sacrifice an individualism—the capacity for meaningful, personal attachment—that we have come to cherish. The commons is, in this sense, liberalism’s name for what it doesn’t like about liberalism. Hence, the perfect fluency of Thomas Edward Scrutton (a highly successful commercial lawyer) complaining in 1881 that “the speculative builder and the wealthy landowner alike prey upon roadside wastes, and neighbouring Commons”: “the poor, who are deprived of any interest in the land, and the public, more and more restricted to the hard high road, are affected by the Policy of Enclosure and Individualism”. Reading closely, one can see that Scrutton elides what are actually three nonidentical constituencies—the “commons,” “the poor,” and “the public.” But to the degree that the elision works it’s because commonness could already, in 1881, serve as a kind of penumbral keyword for the opposite of “Enclosure and Individualism.” To see that the “commons” continues to function in this generic way, one need look no further than Michael Hardt and Antonio Negri’s recent call for a “democracy of the multitude” in which “we all share and participate in the common... —the air, the water, the fruits of the soil” and focus on “the practices of interaction, care, and cohabitation in a common world”.