Friday, May 31, 2019
In “The Liberal Commons” Michael Heller and I celebrated commons property types that mainstream property theory obscures notwithstanding their prevalence in contemporary law. In this Essay, prepared for the Cornell Law School Symposium celebrating Greg Alexander’s retirement, I maintain that the connection between liberalism and commons property types is more precise and, in a sense, more complicated.
On the one hand, I claim that a liberal property law, which is founded on and thus must be committed to individual self-determination, must proactively facilitate commons property types, in line with what I call property’s structural pluralism. On the other hand, I contend that a liberal law should not lend its support to commons property types not only if they undermine the liberal commitment to exit (as discussed in The Liberal Commons), but also if they fail to comply with the prescriptions of property’s relational justice. Relational justice, I argue, implies that commoners’ right to exclude potential entrants must not be unlimited; it furthermore requires that for law to support a commons property, its internal governance regime must not undermine the equal concern and respect of its members.
Situating commons property types at the core of liberal property law offers a better understanding of the liberal ideal of property as well as of both the promises and the dangers of the commons. Refining the proper role of commons property types and the prerequisites of their legitimacy also sets up a reformist agenda, which can push liberal property law to better comply with its autonomy-based underpinnings. It may further show why – although much of the critique of the realities of property in actual liberal systems is justified – the liberal idea of property must not be too quickly discarded. Properly conceived, I conclude, liberal property both augments people’s opportunities for (voluntary) collective self-determination and restrict their opportunities for interpersonal domination.