Published by De Gruyter

Volume 19 Issue 2

July 2018

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Publicly Available August 14, 2018

Frontmatter

Page range: 1-4

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August 14, 2018

The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin

Stuart Banner

Page range: 395-407

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 .

August 14, 2018

Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources

Nathaniel Wolloch

Page range: 409-424

Abstract

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.

August 14, 2018

Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty

Alice Ingold

Page range: 425-456

Abstract

Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public.

August 14, 2018

Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space

Monica Eppinger

Page range: 457-488

Abstract

Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedies, central to a post-Cold War project of advancing “market democracy.” Meanwhile, the notion of an “illiberal commons” stands ready for redeployment in future situations conceived as tragically problematic.

August 14, 2018

The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”

Harry N. Scheiber

Page range: 489-505

Abstract

Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

August 14, 2018

Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory

David B. Schorr

Page range: 507-531

Abstract

This article argues that modern commons theory has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” by authors such as Lord Kames and Adam Smith, and passed down to the twentieth century, to theorists including Garrett Hardin, Harold Demsetz, and Elinor Ostrom. It argues that stadial thinking reached modern commons theorists largely through the disciplines of anthropology and human ecology, paying particular attention to the debate among anthropologists over aboriginal property rights, colonial and international development discourse, and neo-Malthusian conservationism. The effects of stadial theories’ influence include a belief among many that private property represents a more advanced stage of civilization than does the commons; and among others a Romantic yearning to return to an Eden of primitive and community-based commons. Thus do deep cultural attitudes, rooted in the speculative thinking of an earlier age, color today’s theories — positive and normative — of the commons.

August 14, 2018

Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)

Fabien Locher

Page range: 533-558

Abstract

The goal of this article is to write a social and political history of the now preeminent approach to the ‘commons’ institutions, by focusing on Elinor Ostrom’s contributions to its development. My methodology is that of Science and Technology Studies (STS). I focus here on the materiality of E. Ostrom and her team’s research practices (fieldwork, data collecting, indexing and analysis), on their intellectual and institutional strategies, their networking practices, how their research was funded, and their interactions with administrative and academic institutions and actors (USAID, NSF, National Academy of Sciences). I analyze the history of the Workshop in Political Theory and Policy Analysis, the research center that E. Ostrom and her husband Vincent founded and animated for some 40 years at Indiana University, Bloomington. By doing so, I hope to be able to analyze the close ties between the form and content of the Ostromian theories on the commons and the main lines of tension in the U.S. society of the 1970s and 80s that saw their emergence: urban crisis and “neighborhood revolution”, increasing distrust of modernization and centralization ideals, mutations in U.S. development policies and doctrines, rise of neoliberalism.

August 14, 2018

Indigenous Peoples, Political Economists and the Tragedy of the Commons

Michel Morin

Page range: 559-586

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.

August 14, 2018

Commons and Cognition

Carol M. Rose

Page range: 587-616

Abstract

Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. While Hardin viewed the herder’s attitude as identical to that of actors in many other collective action situations, the work of other commons theorists suggests several different cognitive stances among such actors, largely depending on the scale of the commons issues they face. Thus participants in the Prisoner’s Dilemma (a very small commons) would appear to be dominated by distrust rather than the hypothetical herder’s ignorance or indifference. Participants in mid-sized commons — such as Hardin’s herders in real life — show some distrust, but also great knowledge and engagement in common pool management. Participants in the largest-scale commons issues are actually those most likely to exhibit the ignorance and indifference that Hardin attributed to the herder. This Article discusses the ways in which these different cognitive stances track the scale of collective action “tragedies” as described by major theorists and concludes with some observations about the cognitive aspects of climate change.

August 14, 2018

Confronting Hardin: Trends and Approaches to the Commons in Historiography

Giacomo Bonan

Page range: 617-632

Abstract

This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons (1968) and his paper’s impact on historiographical debates of the last five decades . Concerning the role of historiography in Hardin’s argument , the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures , who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons , the reverberations aroused by his paper have strongly influenced subsequent historical research on this subject . It is possible to group the historiographical production of the last decades concerning the commons into three main lines of research . The first line has developed in the field of economic history and has been influenced by Elinor Ostrom’s principles for long - enduring institutions that efficaciously manage commons . The second line has focused on the conflicts caused by exogenous interferences in the management of common land , such as state or market intervention , and their social and environmental consequences . The third line has devoted attention to the role of common lands in the internal dynamics of the local communities and the conflicts over their use at the local level . The conclusion of this Article focuses on the role of Hardin’s legacy in the current debate on the global environmental crisis .

August 14, 2018

Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy

Oren Bracha

Page range: 633-670

Abstract

Information goods form the most distinct category of nonrival resources in regard to which one person’s ability to use the resource is not lessened by another person’s use. Nonrival goods are not subject to the tragedy of the commons and as a result the most common modern justification for property rights is absent in regard to them. Therefore intellectual property rights, unlike many other property rights, may perform a beneficial function only with respect to the dynamic incentive to produce information goods. With respect to static use of existing information, intellectual property rights serve no beneficial function and always have a negative effect. This fundamental and ostensibly well-understood element of intellectual property theory has important implications for the policy analysis of intellectual property rights compared to other institutional alternatives (including a commons) and for the design of such rights. Because it poses a fundamental challenge to the idea of a uniform theory of property, the assumption of nonrivalry of information has been subjected to attacks by scholars who sought to introduce the tragedy of the commons to this realm and reintegrate intellectual property rights into standard property analysis. Other scholarship rejects the attacks on nonrivalry but often obscures the full implications of this feature of information goods. This article explains the centrality of nonrivalry in the policy analysis of information goods and the challenge it poses to a unified theory built on the concept of the tragedy of the commons. It explains the unfortunate tendency to obscure the full implications of nonrivalry, explores the various attempts to restore a tragedy of the commons framework to the analysis of information goods, and exposes the flaws of these arguments. The article concludes by explaining the implications of the nonrivalry of information goods for a properly understood general theory of property built around the salient positive and normative features of resources.

August 14, 2018

Re-romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives

Amnon Lehavi

Page range: 671-703

Abstract

Public discourse in Israel is taking a somewhat surprising turn in its vacillation between individualism and collectivism. While mainstream public opinion in the 1980s and 1990s pointed to the failures of common- and public-property regimes, elected officials, entrepreneurs, and consumers are nowadays singing the praises of commons and communities. The re-romanticizing of commons and community is driven by a number of explicit and implicit motives, which also underscore, however, the limits of a full-fledged return to common-property regimes. This article highlights three instances of the reemergence of the commons- and community-discourse across the Israeli landscape. First, while the old-style “cooperative kibbutz” suffered a substantial decline in past decades, the evolution of a new type of midlevel communitarianism in the “renewing kibbutz” has led to a growing demand to join the ranks of such kibbutzim. Second is the development of urban shared office-space compounds such as WeWork, and the next phase of urban commons: co-living buildings. Third, the emergence of “community villages” on state-owned lands, located mostly in Israel’s peripheral areas, has been praised by governmental agencies and residents alike as restoring a key role for community for middle-class families. But this advocacy may also be driven by exclusionary social and political motives, as applicants may be turned down based on open-ended criteria, such as “incompatibility with social life in the community” or incongruity with its “social-cultural texture.” These case studies serve as a basis for offering new theoretical tools for thinking about the commons, fifty years after The Tragedy of the Commons presented their apparent failures. A fresh theory of commons and community could highlight how the revived discourse attests to the need to design a new set of balances between the perils of commons and anticommons, between values of anonymity and familiarity, and between governance by hierarchy and egalitarian rules.

August 14, 2018

Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances

Yoav Dotan

Page range: 705-744

Abstract

This paper focuses on a doctrine that the Israeli Supreme Court has developed since the early 1990s under which the Court removes officeholders from their position by ordinary judicial review proceedings. Although this doctrine is not founded on any formal constitutional settings, nonetheless it has had a significant influence on the relationships between the judiciary and the political branches, as it was the basis for the removal of several major political figures — including ministers and top bureaucrats — from office. The substantial rise of judicial power in Israel since the early 1980s has been documented by the literature of comparative constitutionalism. Yet this rise took place despite the lack of any meaningful formal constitutional guarantees of judicial autonomy in Israeli constitutional law. I argue that this doctrine of removal can serve to explain this gap. This practice of ‘impeachment’ by judicial review is unique to Israel. Therefore, it has hardly been studied by the comparative literature. It is, however, extremely common and influential in Israeli constitutional and political life. It also enjoys massive support from legal elites and the general public alike. I argue that one cannot understand the relationships between the courts and politics in Israel without taking this component into account. In this Article, I describe the development of this practice by the Israeli Supreme Court and its influence on the relationships between the courts and politics in Israel. I also provide a critical evaluation of the doctrine.

August 14, 2018

Israel’s “Constitutional Revolution”: A Thought from Political Liberalism

Frank I. Michelman

Page range: 745-765

Abstract

In his book The Purse and the Sword: The Trials of Israel’s Legal Revolution, Daniel Friedmann brings under critical inspection what he names as a legal revolution in Israel. Friedmann gives us, under that name, an account of a shift of certain major and sensitive state powers from elected leaders and legislators to politically insulated officials and judges. The Supreme Court’s construction of two Basic Law enactments of the twelfth Knesset into a justiciable, substantive “formal constitution” for Israel figures in Friedmann’s book as one component of the revolution, along with other judicial developments, including purposive interpretation of constitutional and other laws, an intensified form of common-law review of administrative actions for unreasonableness, and expansionary revisions to standing and justiciability. In all these developments, Aharon Barak took a leading part as judge and as scholar. I here consider to what extent these developments may be understood as responsive to promptings from a “political-liberal” conception of a justificational burden and need for substantive constitutional law. I reflect here on the possible pull of this conception in a political-cultural setting of a persisting widespread attachment to an idea of Israel as a member of the family of liberal constitutional states, and hence on Barak’s understanding of the role and responsibility of the Supreme Court. I speculate briefly about how far that pull may extend also to Professor Friedmann in his role of critic of the judicial handiwork of Barak and the Court on which he served.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

Theoretical Inquiries in Law appears in several databases, including Lexis, Westlaw, LegalTrac, and HeinOnline.

At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.

Volume 19 Issue 2

Issue of Theoretical Inquiries in Law

Frontmatter

Introduction

The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin

Abstract

Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources

Abstract

Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty

Abstract

Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space

Abstract

The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”

Abstract

Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory

Abstract

Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)

Abstract

Indigenous Peoples, Political Economists and the Tragedy of the Commons

Abstract

Commons and Cognition

Abstract

Confronting Hardin: Trends and Approaches to the Commons in Historiography

Abstract

Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy

Abstract

Re-romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives

Abstract

Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances

Abstract

Israel’s “Constitutional Revolution”: A Thought from Political Liberalism

Abstract