Document Type

Article

Comments

The Comedy of the Commons: Commerce, Custom, and Inherently Public Property, 53 University of Chicago Law Review 711 (1986)

Abstract

The right to exclude others has often been cited as the most important characteristic of private property. This right, it is said, makes private property fruitful by enabling owners to capture the full value of their individual investments, thus encouraging everyone to put time and labor into the development of resources. Moreover, exclusive control makes it possible for owners to identify other owners, and for all to exchange the fruits of their labors, until these things arrive in the hands of those who value them most highly—to the great cumulative advantage of all. Thus exclusive private property is thought to foster the well-being of the community, giving its members a medium in which resources are used, conserved and exchanged to their greatest advantage. There is nothing new about this set of ideas; Richard Posner, a modern-day proponent of neoclassical economics, remarks that the wealth-enhancing value of property rights "has been well known for several hundred years." Posner cites Blackstone for this proposition, and indeed, since the advent of eighteenth-century classical economics, it has been widely believed that the whole world is best managed when divided among private owners.

The obverse of this coin is the "tragedy of the commons." When things are left open to the public, they are thought to be wasted by overuse or underuse. No one wishes to invest in something that may be taken from him tomorrow, and no one knows whom to approach to make exchanges. All resort to snatching up what is available for "capture" today, leaving behind a wasteland. From this perspective, "public property" is an oxymoron: things left open to the public are not property at all, but rather its antithesis.

Date of Authorship for this Version

1986

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Law Commons

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