“What is a Commons?”

Jeff Kirkpatrick
(Former Communications Director for Nebraska Farmers Union, currently an attorney with McHenry, Haszard, Hansen, Roth, & Hupp, P.C. in Lincoln, Nebraska, USA)
1995 (not previously published)

Garrett Hardin's article The Tragedy of the Commons1 has spawned a rash of essays and articles since its publication in 1968. In many of those articles free market and private property advocates have pointed to the "Tragedy" as a clear example of how a communal property system failed, overcome by its inherent inefficiency and the obvious superiority of a private property system. There have been occasional scholars, most notably Susan Cox2, who have pointed out the historical record does not show a "tragedy" in the European "commons" farming system. I would go a step beyond Cox. Not only does the historical record fail to support the lessons which private property proponents cite, the record can teach us some valuable lessons about how community property ownership can succeed, lessons which can be applied to modern commons situations.

Hardin used a theoretical common grazing ground as a metaphor for the tragedy which he said ensues from a system of communal resource ownership in which everyone can exploit the resource, but in which no one has the incentive or responsibility to care for that resource. Hardin used the metaphor to discuss the problem of overpopulation and suggested the solution of "mutual coercion, mutually agreed upon."3

Hardin's article was thought-provoking. But it propagated and popularized what Susan Cox in her article, No Tragedy on the Commons4, called a Tonypandy5, a misleading characterization of an historical event which is so widely reported that the fictionalized event is accepted as the truth. The problem with much of the analysis which directly or indirectly refers to the English commons system is not what economists and legal scholars know about the system's history, it is what those writers know about the commons which just wasn't so.

What is today generally accepted as the "tragedy of the commons", the abuse of the land, the overgrazing, and the general lack of care of a commonly owned resource did not exist as a general feature of the system. In fact, the commons (or more properly, the open field system 6) was a sophisticated system which persisted in England, and across much of Europe for centuries.

In this paper I would like to briefly examine some law and economic criticisms of commons, (waste and high transaction costs)/ideas which have drawn heavily on the misinterpretation of the commons and suggest a couple of communitarian lessons which may bemore properly drawn from the English experience with the commons. But first we should examine a more accurate picture of how the system actually operated.

It is a mistake to think of the open field system as a system in which grazing land was open to unrestricted use by anyone in the community.7 In fact both grazing and crop rotation were strictly controlled by the traditions and collective decisions of each community. Villages which
used the open field system utilized a form of agriculture which relied on a mixture of grazing and tillage. Land ownership was also a mixture. Each farmer tilled small, scattered strips of ground which he owned or rented as an individual. His strips of land lay within large village fields in which crops were rotated and let to lie fallow in concert. [map8 omitted] Between planting and harvest these strips were farmed under a system of private ownership. However, after harvest the strips were treated as communal grazing property. During the growing season fields that were fallow that year and waste (commonly owned property which was not tilled) were grazed by the livestock of the village, then during the winter the harvested fields were opened to grazing. While teams of oxen for plowing were often shared, and harvesting was a community activity to a certain degree, farming was individual. The grazing was communal. The village would hire a herdsman and all of the cattle and other livestock owned by the farmers of the village was kept together in large herds or flocks. The system was efficient since the need for fences and herdsmen was greatly reduced.

Part of the reason for the open field system was that the optimal scale for tillage differed
from the optimal scale for grazing. This system allowed the farmers to efficiently engage in two types of agriculture on two different scales at the same time. When a village decided because of changing market conditions to concentrate on either livestock or crops this usually led to a decision to enclose the fields and abolish the open field system.

Grazing, and other common rights such as gathering wood or peat on common property, were generally restricted to villagers. The right to graze was granted by the village which control the time and type of livestock which was allowed to graze on various parcels of ground. Grazing rights were usually based on the limited carrying capacity of the land which a farmer tilled.

The "scattering" of each farmer's strips of ground through each field has been widely criticized by economists and agricultural historians as being inefficient. Dahlman makes a strong argument that this custom was an elegant and effective method of creating interdependence among farmers.9 If a larger land owner could combine his land into contiguous plots he might break away from the others and enclose his land for his exclusive use. The scattering of the strips of tilled ground meant even large farmers had an incentive to participate in the collective decision-making needed to regulate the common grazing areas. It was not economically feasible for any farmer to
fence in his small, scattered strips.

The scattered fields also increased the social pressure on each farmer to keep his fields weed free since his weedy strips would increase weed problems in his neighbors' fields. The scattered fields also encouraged the natural tendency of farmers to cooperate in plowing and harvesting. Timing can be vital in farming. By scattering each farmer's fields all of the farmers had a reason to work hard until the community's joint work was done.

The scattering of individual land holdings and common benefit gained from communal grazing ensured that each farmer had a clear and direct interest in collective agricultural decisions. Governance varied. Some villages had a manorial court and others had village meetings. It appears unlikely that villages operated by one person, one vote. However, each farmer had an economic reason to exercise his suffrage to the extent possible. Even if influence was apportioned by amount of arable land owned rather than per capita, a significant number of decisions were collectively made.

This collective decision making has been criticized for raising transaction costs. For example, a common criticism of the open field system is that this collective decision making model slowed innovation, supposedly because conservative farmers would exert enough pressure to stop their more progressive brethren from trying new ideas. Even Cox agrees to this criticism.10 However, studies indicate that open field villages were just as progressive in their farming techniques as enclosed villages. In fact many progressive techniques such as floating meadows, complicated crop rotations, and legumes were originally introduced in the open field system.11

History offers powerful evidence that the open field system effectively met the goals of its users. Open field systems have been present in England as long as there has been recorded history. While enclosures began in the 15th century, commons were widely present well into the 19th century. While there was a slow, but steady trend toward enclosure, at the same time some villages were enclosing, other villages were establishing open field systems. Also impressive was its prevalence across northern Europe, embracing such diverse cultures as the Slavic, Germanic, Gallic, and Celtic.

As Cox makes clear in her article about the commons,12 there were abuses of the system and overgrazing did occur, but such abuses were anomalies rather than being a predictable and widespread part of the system. Abuses occurred, not because of the system, but when it fell into disuse.13

It is clear that the open field system did not operate as a commons in the way its critics charge. The theoretical commons gives each party in the commons the right to exploit the resources of their communal property without check. In fact the English open field system contained the very quality Hardin was calling for, "mutual coercion, mutually arrived at," (though Hardin appears to have overlooked it). The community controlled the use of resources and fined those who were found to abuse those resources.

Much of the school of law and economics revolves around the importance of transaction costs and keeping such costs \ow in order for society to reach its most efficient result. Some law
and economic advocates have focused on transaction costs as an aspect which clearly demonstrates the superiority of a private property system over a communal system. In Hardin's theoretical model each farmer had equal and independent rights and must be negotiated with separately.14 In this theoretical system the transaction costs are enormous. In order to leave a particular pasture fallow until winter in Hardin's model each farmer would have to agree to such a practice. This contrasts with a private property system in which if A wants a pasture to lie fallow he must only negotiate with a single owner.

In fact the transaction costs in an English village were relatively low and quite stable. Dahlman argued in his analysis that this was a fundamental economic rationale for the existence of the commons system.15 He noted the village council used well-known rules and traditions for reaching collective decisions on such matters as crop rotation and assignment of grazing rights. The collective ownership of some land eliminated the costs of establishing and maintaining private property rights to a significant proportion of the land base. Scattering and communal grazing reduced the transaction costs by encouraging farmers to participate in community decision making and creating the incentive to maintain a strong, effective collective decision making organization.

A logical flaw in the reasoning of proponents of the free market solutions is illustrated intheir analysis of the commons. They argue that the commons does not work because collective decision making is too cumbersome to efficiently process information. (Knowledge stored and passed along through cultural traditions is a widely overlooked, but tremendously important way to process information). Market proponents like to pay homage to the superiority of private decisions over public decisions. But as James Krier point out in The Tragedy of the Commons, Part Two,16 the market system is dependent upon public bodies and their bureaucratic and judicial functions for its maintenance.

Free marketers prefer to contrast a mythical tragedy with their theoretical private property nirvanas, but 1 suggest we could profitably follow the advice of law and economics writer Ronald Coase:

Whatever we may have in mind as our ideal world, it is clear that we have not yet discovered how we get to it from where we are. A better approach would seem to be to start our analysis with a situation which naturally exists, to examine a proposed policy change, and to attempt to decide whether the new situation would be, in total, better or worse than the original one.17

What can we learn from the English commons system? It was a sophisticated economic and social system which provided both stability and efficiency, not just for a generation, but for centuries. There are two features which contributed to its longevity, the small manageable scale of its communities and the interdependence which was not only present in its economic system, but which was knowingly designed and maintained in the economic fabric of the community.

Kirkpatrick Sale in his book. Human Scale, wrote about the importance of communities being small enough for people to feel empowered and to interact. He noted sociologist John Pfeiffer's conclusion that it is only when a village's population reaches 1,000 people in most cultures that it needs policing18 and quoted Yale political science professor Robert Dahl who found, "The larger the place, the less likely the citizen is to be involved as an active participant in local political life."19 This kind of "human scale" for a community is not eliminated by modern population growth. The challenge is to return economic decision making ability to communities which are small enough to interact in a truly democratic fashion.

Critics might note that English villages, with feudal overlords and voting schemes which gave greater influence to large land owners, were not models of pure democracy. But with the open field system they did build a system of remarkable economic interdependence. This interdependence guaranteed a civic involvement which modern democracies can only envy.
Commons inherently encourage greater social interaction. Carol Rose noted this attribute in her article, The Comedy of the Commons. She focused primarily on roads, waterways, and beaches which are open to the unorganized public. Rose noted that not only do commons expand wealth, they also "expand the sociability of the members of an otherwise atomized society."20

Lastly, let us try to apply the lessons of the success of the English open fields system to the
problem of a modern commons. Modern needs and technology have decimated most of the ocean fishing beds. It is obvious some conservation method is now needed. The U.S. government is already working on a law and economics solution of auctioning off fishing rights.21

An alternative would be to create a community system of ownership of fishing rights. The first step would be to assign the rights to fish in a particular area to a fishing community. It should be unnecessary for a federal bureaucracy to set fishing quotas. It would be well within the competency of a community to establish rules and customs which would guard the long-term best interests of its fishermen. Community councils would apportion fishing rights within the community based upon local criteria such as historic production.22 The councils would be charged with protecting the long term economic stability of the community.

Such a system would avoid the creation of a large, expensive, and possibly repressive federal sea-going constabulary. It would be in the best interest of fishermen within the community to report violations of rules both by its members and by outside fishing interests. While they might call in the Coast Guard to do the actual enforcement work, the constant vigilance necessary to ensure no one abused the commons by catching more than they were entitled to would fall primarily on local fishermen with a long-term incentive to halt over-fishing.23

In conclusion some might argue that it is irrelevant whether the actual English commons resembled Hardin's commons. His theoretical commons is, after all, a useful analytical tool. But part of the reason why the commons is such a powerful metaphor is that it purports to have been a real historical tragedy of communal resource ownership which was transformed into a triumph, at least in some accounts, by the magic of private property ownership. As we wrestle with real world communal problems such as air pollution and the depletion of ocean fish stocks, doesn't it make more sense to learn from an historical experience rather than a myth?

NOTES

1. Garrett Hardin, The Tragedy of the Commons, 162 Science 1243-48 (1968). Hardin did
not base his essay on the English open field system, he referred to a purely theoretical construct. However, many readers assumed he was referring to the historical commons grazing system, and in a later essay he did refer to the historical English commons.

2. Susan J. Cox, No Tragedy on the Commons, 1 Environmental Ethics, 49-61, (1985).

3. Hardin at 1247.

4. See Cox.

5. Tonypandy was a Welsh mining town where the British government sent in unarmed policemen to control rioting strikers. The version popularly believed in Wales is that government troops shot Welsh miners who were striking for their rights. An example in American history would be the common perception of the Boston Massacre. (Where two Patriot leaders represented the British soldiers at trial, and got them off.) Id.

6. The open field system had the following features: "large arable fields running into hundreds of acres; holdings scattered in small strips through the fields; fields lying fallow every second or third year; and grazing rights exercised in common over the arable fields." Joan Thirsk, Preface to C.S. and C.S. Orwin, The Open Fields, IX (3rd ed.1967).

7. Carl J. Dahlman, The Open Field System and Beyond, (1980). I have relied primarily on Dahlman's description of the open field system for this paper. The description is a generalization of an average open field village. The villages varied widely in make up, governance, and even the number of fields they used during the period when this system was common.

8. This 1635 map shows a typical open field village with four fields. Many villages had only three fields. The Westwood Common, Long Meadow, and forested areas were open grazing commons. Laxton village is shown below the Demesne (the manorial grounds). Moorhouse is a neighboring village whose fields lie to the east. Taken from C.S. and C.S. Orwin, The Open Fields (3d ed. 1967).

9. Id. generally

10. Cox at 59.

11. Dahlman at 173-78.

12. Cox at 49-61.

13. Cox quotes Conner who said in response to advocates of inclosure, "what was wanted was a stricter enforcement of the whole common right system." E.C.K. Gonner, Common Land and Inclosure, (2ded. 1966).

14. Hardin at 1244.

15. Dahlman at 138.

16. James E. Krier, Tragedy of the Commons, 'Part Two, 15 Harv. J.L. & Pub. Policy, 325 (1992) .

17. Ronald Coase, The Problems of Social Cost, 3 J.L. & Econ., 1 at 43, (1960).

18. Kirkpatrick Sale, Human Scale, at 488 (1980).

19. Id at 203.

20. Carol Rose, The Comedy of the Commons; Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev., 711 at 723 (1986). (She uses comedy in the classic sense of a story with a happy outcome).

21. Maybe it was this prospect which prompted Tyson's the Arkansas-based corporate
chicken giant to buy the largest Alaska fishing company. Perhaps they were betting their close ties with the Clintons and Ag Secretary Mike Tyson (soon to be ex-secretary due in part to the gifts he received from the Tyson's) would help them gain favorable treatment when fishing rights were doled out in Washington. (Both the federal plan and my proposal would only apply to fishing rights in the national waters within 200 miles of the American coast).

22. These local councils might conceivably discriminate against Arkansas-based corporations, but there are winners and losers in every legal system.

23 . Such a system might have been impractical in years past when it would have been difficult to establish the clear boundaries of each communities fishing commons, but today's satellite triangulation should simplify the boundary problems.

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