Common Ground

Some things can’t be owned

(Note: the following is a very brief and rough draft dealing with how we might best manage the common environment and properties we all perfoce must share. The subject is large and would take volumes to cover in any detail. I ask only that you bear with me, and think over the rules and goals I set forth here. See if you think they make sense or not, compared to the way we handle such things today.)

‘Owning’

The notion of private property is on odd one. Today we all accept it as a given and can’t imagine a world without it. Indeed the theory of capitalism and the ‘free market’ has come to dominate the political thinking of governments around the globe ever since the Soviet Union fell in 1989.

Once upon a time, however, the notion of what could be ‘owned’ was very strictly limited. Only the members of the ruling class could be said to properly own anything at all, and they did so largely at their own expense and defense. The members of the lower classes held their own things only at the forbearance and sufferance of the ruling class, whose members might at any time ride up and grab anything a lower class man held as his own — his crops, his animals, his tools, his wife or his child. The lower classes could not even claim to own their own persons, for a member of the ruling class could grab any of them as well, and put them to slavery.

Later the rule of law came, slowly and unevenly, to prevail, and a greater number of citizens gained the right to appeal to higher authorities if something they ‘owned’ was taken, even by the strong and powerful members of the society. And yet even so, if we stood high in the clouds and looked down upon the Earth, we would see only tiny pockets of land that seemed to be ‘owned’ in any sense. There were the cities and towns where surely all the land and buildings were owned, and there were the outlying farm houses and the fields about them, plowed and cleared and sowed with crops and clearly under the sway of some man or other. But these areas were small compared to the great tracts of wilderness, the forests, plains, moors, and high ground, the rivers and lakes, the vast oceans.

What man controlled, and thereby ‘owned’ would seem to be no more than a few scattered islands strewn amid the great tracts of the wild.

The Wild

There in the wild places, any man might go. Since no man claimed it or stood to bar the way, anyone could go into a forest, cut a tree, hunt a stag, gather mushrooms.

Later the strongest of the strong, the kings and emperors whose barons and dukes commanded the warriors and armies so that they could crush all those who fought them, laid claim to all the land, at least in theory. This was not in many cases thought of as ‘ownership’ but rather only that the ruler held sway over all the men and what they could do within vast territories. These territories faded at their ends often enough, into no-man’s land.

But even within the emperor’s lands, there were rights of way. Some kings did claim to ‘own’ all the places of their realms and then they gave these lands to their loyal followers to use, but never to own. But even here there were roads and rights of way on forest paths, packed roads, and waterways, where any man could go.

Kings of Today

Today the emperor and king has fallen to the State, which is said to represent all the citizens of the land. The State has taken over claim to ‘own’ what is held in commons.

But there are some who would be kings within that land, and to own the commons.

The Commons

The ‘commons’ is land that is held by all. Once this referred to common pasturage where any man might graze his cows. But over the past centuries of the rise of capitalism these fields have been taken and claimed to be owned by the strong among us, and those men have made cause with the rulers in the State and had them defend this taking. Under the theory of capitalism and privatization, this taking is held to be in the overall interest of all, since the strong will make more productive use out of the commons they take, and this use, though it profits the strong most of all, will end up profitable to all the citizens as the general standard of wealth rises in the community.

And so now, if we stood in the clouds and looked down on the Earth, what we would see over so much of the lands, is not the tiny islands of ‘owned’ ground in the great sea of common wilderness, but instead we would behold seas of owned and developed land, with only cracks between them like dikes or levees which remain common ground. These last bits of common ground are the roads and alleys that cut between the owned plots and estates.

There are some commons that cannot every be said to be owned without recourse to the old notions of the kings and emperors who simply proclaimed they owned all, and would kill or enslave any man who trespassed upon what the monarchs claimed.

These last commons are:

• the air we all breathe
• the water on and within the ground
• the Earth below the ground itself we walk on
• all that passes inescapably among and between these elements

The Last Shreds of Commons

No man captures and controls the air above his land. The air flows across and around the globe, and every man on Earth shares in this one element. The same can be said of the element of water, as even a small lake or pond seeps into and is fed by the waters under ground, and breathes water into the air even as it drinks rain that falls from the clouds above. Men lay claim to own land, but this ownership cannot be defended to a very great depth, and somewhere far below our feet the ground softens and turns liquid and flows even like the air above and the waters in between. More, water flows through the ground we say we own, and this water connects in aquifers that cannot be shut off from the surrounding lands. And the minerals of the Earth run in seams and veins from one surface plot to another.

As for ‘what passes through’ these elements, I mean in the main the airwaves above, and the groundwater below, as well as other minerals such as oil and gas.

Takings and Eminent Domain

The legal theory of eminent domain goes something like this: for the common good of all citizens, the State may buy land ‘owned’ by individual citizens for a fair price, even though those citizens don’t want to lose their land.

It is important, in the name of justice and to prevent the outright rule of the strong that once prevailed, that these takings be as rare and as limited in scope as possible. And that they only take place for the good of all. To that end, the following conditions must be met:

1. The taking must be a last resort
2. No other good or feasible alternative way should be available that might achieve the proposed common good without recourse to this taking.
3. The land taken must go from private hands only into the hands of the community and never into other private hands
4. The land taken may be managed or run by private persons or corporations, but only under the strict and vigilant oversight of representatives of the community
5. The community must share in the revenues, if any, that these private management companies gain from operating the property.

When land is taken from any citizen, every effort must first be made to avoid it. All other alternatives must be looked into. The state must negotiate with the property owner in all good faith to see if a bargain might be struck so as to avoid the outright forced taking. The land taken must never be handed over to another citizen or private body such as a corporation. It can only go to the state, the representatives of the community who are charged with the general good.

These representatives may choose to operate and maintain the land themselves. But the duty of the state is not to run the society but rather to see that we can run our own affairs justly. We do not elect officials to run waterworks or process sewage. So it seems proper that the representatives should assign or hire private persons or companies to manage the property. There are some rules that must always obtain when this is done.

Simple Rules

The community should always be the legal owner of the land in question and as such should have complete access to all records and decisions by the private persons or companies that are awarded the duty of managing the land. The first choice of the state should be to offer these duties for auction in case anyone thinks they can make a profit in managing the resource in question. Such auctions should have four traits:

1. All bidding should be open and public knowledge
2. There should be a minimum payment in advance to the state
3. The state should share in the revenues of the management of the property, the gross revenues not the profits, and the bidding at auction for these privileges should consist of what percentage of revenues the bidding companies are willing to share with the state
4. The privileges awarded in auction are purchased only for a very limited term, at the end of which a new auction will be held upon revised terms as the representatives of the state learn how better the common good might be served

It is important that the privilege of operating a public good not be held as a private fiefdom, nor even that it be open to the suspicion that this is the case. That’s why the auction should be renewed every three years, or five — certainly fewer than ten. By the same reasoning, the terms of the auction should be reviewed by the representatives of the community when the auction comes up once more to make sure that the resource is being run in the common good, and that the operating entity is upholding the public trust.

When the auction comes up frequently in this way, it can also help the operating company review its own obligations under the terms of the auction. Maybe it bid too much and can’t operate properly under the current terms. But on the whole we should be concerned here in guarding the common good of the community and not the profits of any private company or person.

The Best Way?

I think that the best way to manage these common grounds lies in private hands under the strict oversight of representatives of the public, with all proceedings and dealing being a matter of public record freely available for any citizen to consult and read. The representatives of the state should be in the business of considering in broad terms where the best interests of the citizens lie — not in day to day operation of these properties. It is not the task of the state to operate television networks, radio networks, public sewers or roads or bridges. But the state must make sure that the day to day operation conform to the common good. This means both that the resources serve the common good, and that the citizenry as a whole enjoy the highest practical share of whatever revenues these facilities and privileges afford.

(Composed on keyboard Friday 8 February 2008)