Savagery, civilization, and property III: The commons theorists

In the last post in this series, we looked at the way early modern "stadial theory" connected between stages of civilization and property regimes. Now let us examine some of the classics of modern commons theory, noting the fondness of theorists for stories reminiscent of various aspects of stadial theory. I wish to highlight here not simply that commons theorists of many stripes tend to connect pressure on resources to property regimes, as unanimity on this point could plausibly be explained by observations of a pervasive phenomenon. It is rather the connection of these two parameters — pressure and property — with the early modern idea of civilizational stages characterized by hunting, pastoralism, agriculture, and sometimes commerce, that I find striking. Whether seeing these stages in terms of the march of Progress or a fall from Edenic bliss, nearly all commons theorists seem to be attracted to the basic narrative of stadial theory.

Garret Hardinʼs “Tragedy of the Commons” illustrated its argument against common property with a parable of a common pasture.  While neither Hardin nor William Forster Lloyd, from whom he borrowed the story, argued that society does or should progress along stages of development, their descriptions of the common pasture echoed some elements of stadial theory: shepherds have no “property” in their pastures, a characterization consistent with stadial thinking (and clearly disproved by historical work on actual common pastures).  Such pastures are subject to overgrazing, as in the story of Abraham and Lot adduced by Dalrymple.  Moreover, Hardinʼs article echoed stadial theory at several points, such as when he writes that “the logic of the commons has been understood for a long time, perhaps since the discovery of agriculture or the invention of private property in real estate,”  or in his argument that increasing pressure on resources drives enclosure of the commons:

Perhaps the simplest summary of this analysis of man’s population problems is this: the commons, if justifiable at all, is justifiable only under conditions of low-population density. As the human population has increased, the commons has had to be abandoned in one aspect after another.

First we abandoned the commons in food gathering, enclosing farm land and restricting pastures and hunting and fishing areas.

Approximately contemporaneously with Hardin’s article, Harold Demsetz published his “Toward a Theory of Property Rights.”  Here the similarities to stadial theory were yet more prominent. Demsetz, relying on the work of anthropologists who had studied native tribes of the Canadian northeast, described societies that had moved from hunting to husbandry of fur-bearing animals (husbandry being either a sort of pastoralism or agriculture). Demsetz argued that this change in subsistence methods was accompanied by a change in property arrangements — lack of private property gave way, as a response to new, commercial demands for pelts, to defined property rights in land:

Herman Moll, inset from Beaver Map (1715)

We may safely surmise that the advent of the fur trade had two immediate consequences. First, the value of furs to the Indians was increased considerably. Second, and as a result, the scale of hunting activity rose sharply. Both consequences must have increased considerably the importance of the externalities associated with free hunting. The property right system began to change, and it changed specifically in the direction required to take account of the economic effects made important by the fur trade.

While not tracking Enlightenment stadial theory precisely, Demsetz’s account overlapped with it in several respects (not at all coincidentally, as we will see): echoes of the progression hunting-pastoralism-agriculture-commerce, an accompanying shift to increasingly defined property rights, and an explanatory mechanism based on increasing pressure on the resource.  Regarding this last point, Demsetz’s consideration of externalities was markedly similar to Adam Smith’s argument that “when flocks and herds come to be reared property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer.”

Demsetz’s work was extremely influential on property theorists in the legal academy, many of whom continue to make use of the stadial paradigm. James Krier, for instance, recently advanced a modified Demsetzian account of the evolution of property rights from hunter-gatherer societies with communal ownership to agricultural ones with individual ownership.  Demsetz’s model also had major impacts on the economic literature on the commons (e.g. Anderson & Hill's "The Evolution of Property Rights" and the literature it spawned),  as well as on the “common pool resources” literature associated with Elinor Ostrom.

Perhaps less obvious, but in some respects uncannily similar to Adam Smith’s theory, is Carol Rose’s influential classification of management strategies for common resources.

Savagery, civilization, and property II: Civilization and its discontents

(Part II of the series, Part I is here.)

The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents),  of what would come to be known as “stadial theory” or “four-stages theory.” This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New World societies that reminded Europeans of societies described in classical Greco-Roman and biblical sources, and raised the issue of what separated “savage” or “barbaric” peoples from “civilized” ones. Stadial thinking offered a theory of progress:

In its most specific form, the theory was that society ‛naturally’ or ‛normally’ progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce. To each of these modes of subsistence, it came to be argued, there corresponded different sets of ideas and institutions relating to law, property, and government… (Ronald L. Meek, Social Science and the Ignoble Savage 6 (1976))

From the beginning, property law had a central place in this type of theory — it was, it seems, the motivating factor behind the theory  — and the discussion of property displayed striking similarities to aspects of modern commons theory (to be discussed in Part III below). John Dalrympleʼs three-stage theory, the first published version of stadial theory (1757), connected the progress of society with increasing specification of property rights. Moreover, it attributed the transition between stages to what we might today call increasing pressure on resources:

The first state of society is that of hunters and fishers; among such a people the idea of property will be confined to a few, and but a very few moveables; and subjects which are immoveable, will be esteemed to be common. In accounts given of many American tribes we read, that one or two of the tribe will wander five or six hundred miles from his usual place of abode, plucking the fruit, destroying the game, and catching the fish throughout the fields and rivers adjoining to all the tribes which he passes, without any idea of such a property in the members of them, as makes him guilty of infringing the rights of others.

The next state of society begins, when the inconveniencies and dangers of such a life, lead men to the discovery of pasturage. During this period, as soon as a flock have brouzed [sic] upon one spot of ground, their proprietors will remove them to another; and the place they have quitted will fall to the next who pleases to take possession of it: for this reason such shepherds will have no notion of property in immoveables, nor of right of possession longer than the act of possession lasts. The words of Abraham to Lot are: “Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then will I go to the right; or if thou depart to the right hand, then will I go to the left.” And we are told that the reason of this separation, was, the quantity of flocks, and herds, and tents, which each of them had, and which the land was unable to support; and therefore lord [sic] Stairs ingeniously observes, that the parts of the earth which the patriarchs enjoyed, are termed in the scripture, no more than the possessions.

A third state of society is produced, when men become so numerous, that the flesh and milk of their cattle is insufficient for their subsistence, and when their more extended intercourse with each other, has made them strike out new arts of life, and particularly the art of agriculture. This art leading men to bestow thought and labour upon land, increases their connection with a single portion of it; this connection long continued, produces an affection; and this affection long continued, together with the other, produces the notion of property. (John Dalrymple, An Essay Towards a General History of Property in Great Britain 86–88 (1757))

Lord Kames

The jurist Henry Home, Lord Kames, also connected the stages of society to property law in his Historical Law Tracts (144–46 (Edinburgh, A. Kincaid & J. Bell, 1758), footnotes omitted and spelling modernized):

In the two first stages of the social life, while men were hunters or shepherds, there scarce could be any notion of land-property. Men being strangers to agriculture, and also to the art of building, if it was not of huts, which could be raised or demolished in a moment, had no fixed habitations, but wandered about in hordes or clans, in order to find pasture for their cattle. In this vagrant life men had scarce any connection with land more than with air or water. A field of grass might be considered as belonging to a horde or clan, while they were in possession; and so might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer subsisted any connection betwixt them and the field that was deserted. It lay open to new-comers, who had the same right as if it had not been formerly occupied. Hence I conclude, that while men led the life of shepherds, there was no relation formed betwixt them and land, in any manner so distinct as to obtain the name of Property.

Agriculture, which makes the third stage of the social life, produced the relation of land-property. A man who has bestowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it.

Elsewhere Kames connected the advance between stages with the pressure of growing populations on resources: 

Indigenous peoples, political economists and the tragedy of the commons

Next in our series on "The Tragedy of the Commons at 50" (the last post is here) is Michel Morin's "Indigenous Peoples, Political Economists and the Tragedy of the Commons". The abstract:

In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal  and anthropological literature. His main lifelong focus was on limiting population growth. He could have avoided the conceptual confusion he created by turning to well-known political economists such as John Locke and Adam Smith or, for that matter, jurists, such as Blackstone. Instead, he simply envisioned indigenous lands as an unbounded wilderness placed at the disposal of frontiersmen. Though he eventually acknowledged the existence of managed commons, he had little interest in community rules pertaining to resource exploitation. For him, these were simply moral norms which inevitably became ineffective after a community reached a certain level of population. He also took economists to task for failing to include in their analysis the true environmental and social costs of public decisions. Still, the famous example of the indigenous people of Northeastern Quebec illustrates a shortcoming of his analysis: community members did not act in total isolation from each other. On the contrary, communal norms could prevent an overexploitation of resources or allow for the adoption of corrective measures.

Beaver Hunting in Canada,
from Charles Theodore Middleton’s A New and Complete System of Geography…, after Chiedel, 1777-1778
(Library and Archives Canada)

The banality of the Tragedy?

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law on "The Tragedy at 50", which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse.

First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin". The abstract:

The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why  The Tragedy of the Commons nevertheless quickly attained its canonical status.

On the other hand, Nathaniel Wolloch has a different view, as evidenced in his "Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources":

John Stuart Mill

This article distinguishes between the precise legal and economic approach to the commons used by Hardin and many other modern commentators, and the broader post-Hardinian concept utilized in environmentally-oriented discussions and aiming to limit the use of the commons for the sake of preservation. Particularly in the latter case, it is claimed, any notion of the tragedy of the commons is distinctly a modern twentieth-century one, and was foreign to the early modern and even nineteenth-century outlooks. This was true of the early modern mercantilists, and also of classical political economists such as Adam Smith and even, surprisingly, Malthus, as well as of Jevons and his neoclassical discussion aimed at maximizing the long-term use of Britain’s coal reserves. One intellectual who did recognize the problematic possibility of leaving some tracts of land in their pristine condition to answer humanity’s need for a spiritual connection with nature was J. S. Mill, but even he regarded this as in essence almost a utopian ideal. The notion of the tragedy of the commons in its broader sense is therefore a distinctly modern one.

Banner and Wolloch come from different disciplinary backgrounds, which may affect their understanding of what exactly the "tragedy of the commons" is supposed to mean. (I, for one, am with Banner on this.)

The environment and the Great Transformation

                  (from famouseconomists.net)

The latest Journal of Environmental Law has an interesting review article by Ben Pontin on two books: Michelle Maloney and Peter Burdon, Wild Law—In Practice (Routledge, 2014); and Bettina Lange, Fiona Haines and Dania Thomas (eds), Regulatory Transformations: Rethinking Economy–Society Interactions (Hart Publishing, 2015). Pontin writes:

This review article compares ‘Wild Law’ and Polanyian critiques of modern day environmental regulation, drawing on two recent edited collections. Each critique unfolds within a rather different intellectual tradition, but there are nonetheless important areas of common ground that justify reading the two together. One area of common ground is a concern with the regulation of social and economic impacts on the natural environment in the context of what it means to be ‘human’. Polanyi did not in his lifetime receive the credit he deserved for being among the very first to write explicitly about regulation in relation to ‘human beings and their natural environment’. This was decades before the word ‘environment’ entered into the lexicon of policy and law in the USA (National Environmental Policy Act 1969) and the UK (Environmental Protection Act 1990). To this extent the catchy neologisms of Wild Law (‘Earth Jurisprudence’, ‘Earth Community’, ‘Earth Governance’, ‘Earth Justice’ and of course ‘Wild Law’ itself), are building on a Polanyian heritage.

A second key area of common ground concerns the limitations of markets as a means of structuring economic and social relations. While neither standpoint rejects markets as means of conducting economic transactions up to a point, each is predisposed towards modes of regulation that are embedded (using Polanyi’s language) in ethical values, rather than the profit motive. Polanyi arrived at this market-critical position from a historical perspective, but as one contributor to the collection by Lange and others points out, Polanyi was preaching to the converted in criticism of 19th-century ideology in the 1930s and 1940s. The difference with Wild Law and modern exponents of Polanyian ideas is that they are facing a renaissance of classical political economy (so-called ‘neo-liberalism’), which is evidenced by an approach to environment regulation based on creating new markets in environmental ‘goods’. This is illustrated in areas such as nature conservation and climate change (eg tradeable biodiversity and carbon credits, respectively), and more broadly by the treatment of economic growth as a bottom line within environmental policy. Much hinges, therefore, on the guile with which these two critiques are articulated (including the scope for learning from one another where possible).

Introducing Polanyi to a legal audience that is largely unfamiliar with his work is a primary aim of the collection of Lange and others, and it is done well. By way of the briefest of distillations, Polanyi’s leading work is The Great Transformation (first published in 1944). In it he tells the story of colossal policy failure, when—in 19th-century Britain—the legislature and courts were persuaded to put into practice Adam Smith’s theory of meeting a nation’s needs through the invisible hand of the free market. That entailed the repeal of protectionist legislation (notably corn laws), and the introduction of economically liberal reforms to statute and common law relating to labour and care for the poor and vulnerable. Polanyi’s achievement was to have grounded a theory of regulation in the experience of this laissez faire experiment:

"Before the process [or planned marketisation] had advanced very far, the labouring people had been crowded together in new places of desolation, the so-called industrial towns of England; the country folk had been de-humanized into slum dwellers; the family was on the road to perdition; and large parts of the country were rapidly disappearing under the slag and scrap heaps vomited forth from the ‘satanic mills.’ Writers of all views and parties, conservatives and liberals, capitalists and socialists invariably referred to social conditions under the Industrial Revolution as a veritable abyss of human degradation."

Polanyi argued that this refuted Smith’s account of human beings as natural traders, with an instinct to bargain their way through life in search of personal material improvement. The universality of condemnation (‘writers of all views and parties’) suggested to Polanyi a naturally spontaneous resistance to free trade. Christopher Decker coins a distinction between Smith’s and Polanyi’s understanding of the human being in terms, respectively, of ‘economic man’ and ‘whole of man’. This makes for an interesting framework for exploring the differences between the Polanyian and the Wild Law critiques of markets (Wild Law looks to more than the ‘whole man’).

Polanyi uses the concept of a ‘double-movement’ to capture the transformation of society during the industrial revolution, and this is among the frames of reference of Lange and others’ collection. Economic relations, Polanyi argued, are naturally embedded in social ones, such that their ‘dis-embedding’ (as a consequence of the experiment with the theories of Smith and the wider Manchester School) elicited a ‘counter movement’, in which the economic sphere was re-embedded in the social sphere by means of regulation.

There's plenty more interesting discussion here.

Enlightenment's frontier

Land tenure and the environment in Scotland seems to be a live topic in which sensitivity to environmental issues is informing legal and intellectual history and vice versa. April's Environmental History had a review by Peter Hansen of Fredrik Albritton Jonsson's Enlightenment's Frontier: The Scottish Highlands and the Origins of Environmentalism (Yale UP, 2013). Hansen writes:

After the defeat of the Jacobite rebellion in 1745–46, land clearances in the Highlands uprooted residents in a region said to possess cornucopian abundance but excess population. The resulting long-term forced migration and agrarian transformation was shaped by ideologies of improvement that did not always mean replacing people with sheep. Surveyors, tourists, and naturalists visited the Highlands and made Linnaean surveys. The influence of a civil cameralism imported from Europe's northern fringe or landlocked provinces also shaped proposals for commercial-botanical projects to attain agricultural self-sufficiency. Voluntary associations such as the Highland Society or British Fisheries Society debated projects to create fishing villages or import crops that would acclimatize to Scotland's soil and climate. Such projects met with mixed success but often concentrated tenants in small-scale holdings. Thus the distinctive crofting form of land tenure in the Highlands was not an inevitable response to overpopulation but the consequence of specific intellectual debates over improvement during the Scottish Enlightenment.