How Many Kinds of Property are There? Two? Or Three?

By Lambert Strether of Corrente

People fighting the landfill up here in the great State of Maine constantly run into the issue of standing: As it turns out, unless you are directly impacted by the landfill — for example, if you live next to it and are affected by foul odors — you have no standing to sue in court against it, or enter the regulatory/rule-making process. Which strikes us all as nuts, since our water, air, quality of life, and property values are all affected by it. In reaction, albeit informally and not as resistance to the landfill in the permitting process, we came up with or acquired the concept of “sheds” — like watershed, airshed, viewshed — and the idea that if you’re in a shed, you should have standing; a voice in the shed’s management and use. Speculating freely, as is my wont, it seemed reasonable that sheds might be fractal — stream, river, catchment area — and that jurisdictions might be based on shed boundaries; heck, maybe the Penobscots were onto something. Well, as it turns out, we were all stumbling toward the idea of how to govern a commons, a problem that Ellinor Ostrum made her life’s work and won a Nobel Prize for. For work she did twenty years ago. Which, come to think of it, is a reasonable time period for a big idea to propagate.*

I haven’t (yet) mastered and can’t summarize Ostrum’s work on the commons**; here’s her 2009 Nobel acceptance speech. (Readers who are farther along than I am, please amplify and correct; I kinda feel like a six-year-old juggling power tools here). So I want to look at one excruciatingly interesting idea that should be affecting policy makers today, then look at Ostrum’s rules for developing governance systems for commons; and lastly raise a few questions.

The excruciatingly interesting MR SUBLIMINAL Or hideously over-simplifed idea is that there are  three kinds of property, and not two. First, let’s limit the discussion a tad; we’re talking about property rights in what Ostrum calls “common pool resources” (for example, fisheries, forests, or water aqueducts; or sheds?). As described by the P2P foundation:

Whenever a group of people depend on a resource that everybody uses but nobody owns, and where one person’s use effects another person’s ability to use the resource, either the population fails to provide the resource, overconsumes and/or fails to replenish it, or they construct an institution for undertaking and managing collective action. The common pool resource (CPR) can be a fishery, a grazing ground, the Internet, the electromagnetic spectrum, a park, the air, scientific knowledge. The institution can be a body of informal norms that are disseminated by word of mouth, enforced by gossip or religious stricture, and passed from one generation to another, or a body of formal written laws that are enforced by state agencies, or a marketplace that treats the resource as private property, or a mixture of these forms. In the real world of fishing grounds and wireless competition, CPR institutions that succeed are those that survive, and those that fail sometimes cause the resource to disappear (e.g., salmon in the Pacific Northwest).

And here’s how Ostrum describes the various kinds of property rights in CPRs:

Common-pool resources may be owned by national, regional, or local [1]governments; by [2] communal groups; by [3] private individuals or corporations; or used as open access resources by whomever can gain access. Each of the broad types of property regimes has different sets of advantages and disadvantages, but at times may  rely upon similar operational rules regarding access and use of a resource (Feeny et al. 1990). Examples exist of both successful and unsuccessful efforts to govern and manage common-pool resources by governments, communal groups, cooperatives, voluntary associations, and private individuals or firms …. Thus, as discussed below, there is no [sic]**** automatic association of common-pool resources with common-property regimes—or, with any other particular type of property regime.

So, to answer the question in the headline: Three (not counting the state of nature of “whomever can gain access” (primitive accumulation?)). And most definitely not two.

Three, meaning that there’s a massive impedance mismatch between history — heck, reality; Ostrum and others have done field research on communally managed CPRs — and the conventional wisdom of the political class, which posits two, in a linear tug-of-war between the government and the individual, between State and Market, between public property, and private property, never admitting of a third possibility, and falsely identifying the communal with what is the State’s.

The implication here is that every single discussion of policy regarding CPRs — air…. water…. oil?… soil?– that you hear in the Beltway is at best vacuous and at worst dishonest if it doesn’t allow communal groups a seat at the table. (Here’s one for the Great Lakes (Hi, Rahm! [waves]).)*** So I don’t find the word “excruciating” excessive in this regard. Not a bit. For example, we know that irrigation systems can be managed communally, and have been with success, for hundreds of years (though it’s not clear such systems scale). Does this knowlege inform our political class’s discussion of drought? Of the effect of fracking on groundwater? Of “water wars” in the twenty-first century? No; of course not; and are you kidding?

Second, I want to share Ostrum’s rules for figuring out how to govern a commons, once you’ve determined you have one. (Yes, this is meta; rules need to be site-specific tuned to context, not emitted by some zombie economist.) As summarized at Resilience:

Based on her survey, Ostrom distilled this list of common design principles from the experience of successful governance institutions:

  1. Clearly defined boundaries. Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself.
  2. Congruence between appropriation and provision rules and local conditions. Appropriation rules restricting time, place, technology, and/or quantity of resource units are related to local conditions and to provision rules requiring labour, material, and/or money.
  3. Collective-choice arrangements. Most individuals affected by the operational rules can participate in modifying the operational rules [how refreshing. Standing!].
  4. Monitoring. Monitors, who actively audit CPR conditions and appropriator behavior, are accountable to the appropriators or are the appropriators.
  5. Graduated sanctions. Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offence) by other appropriators, by officials accountable to these appropriators, or by both.
  6. Conflict-resolution mechanisms. Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators or between appropriators and officials.
  7. Minimal recognition of rights to organize. The rights of appropriators to devise their own institutions are not challenged by external governmental authorities.
  8. For CPRs that are parts of larger systems:

  9. Nested enterprises. Appropriation, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises.

I don’t have a lot to say about Ostrum’s rules, except that if (see above) you’ve got a commons on your hands that you feel should be governed communally, and not by the Market or the State, it will be useful not to have to reinvent the wheel, but to rely on Ostrum’s analysis and fieldwork. More centrally, governance issues are making their way to the forefront (it seems to me) in many contexts all over the world right now; the world faces full-blown or incipient legitimacy crises in many places right now; one way to look at Occupy — even the Black Bloc permathread — is that it was all about governace. And if the planet goes pear-shaped in a way we all hope it won’t, communal treatments of CPRs could offer people the best solutions. Historically, in some cases, they have.

Third and finally, I said I’d have questions, plural, but I lied to you. I really have just one question: Are “human resources” collectively (for example, you, and you, and you…. and me) a “common pool resource”, and hence subject to one of the three property regimes outlined in this post? Why or why not?

NOTE * Which just goes to show how horribly, horribly stunted the discourse of the political class isMR SUBLIMINAL Looking at you, Paul Krugman; I didn’t know Ostrum’s work or ideas, because for years material from our political class was all I read. 

NOTE ** One definition of the commons from David Bollier:

The commons is….

  • A social system for the long-term stewardship of resources that preserves shared values and community identity. 
  • A self-organized system by which communities manage resources (both depletable and and replenishable) with minimal or no reliance on the Market or State.
  • The wealth that we inherit or create together and must pass on, undiminished or enhanced, to our children.  Our collective wealth includes the gifts of nature, civic infrastructure, cultural works and traditions, and knowledge.
  • A sector of the economy (and life!) that generates value in ways that are often taken for granted – and often jeopardized by the Market-State.

NOTE *** From my brief survey of the literature, I do note there’s a bit of “Spot the CPR!” game in some circles; however, a CPR is always vested, as it were, in a concrete time and place, like a fisheries (or the planet?), and so the determination of what is and what isn’t a CPR can’t be done by a formula or on a chalkboard. This reminds me, I’m not quite sure, why, of Graber’s idea that debt, like slavery, necessarily rips a person from context.

UPDATE **** Correction of horrible typo moving from PDF, a wretched proprietary data format that makes simple copying and pasting very difficult, to HTML: “automatic association” should have read “no automatic association,” which is why fieldwork is needed.

NOTE Hat tip to alert reader Ellen F for the “three kinds of property” concept.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. efschumacher

    You might consider that the capital accumulated in any defined community: generally a nation, often a town, valley or region, is a commons. If you operate a mine or quarry, for example, involving the members of a defined community, then the money capital generated by the entirety of the enterprise was generated not by a capitalist marshaling ‘factors of production’, but by the community, and therefore that capital should not be willy-nilly transferred to som entirely different community without some deference to the wishes of all involved. The Most obvious abuse of this nature is unrestricted capital transfer between money systems. If the monetized wealth of a nation is spirited off by one actor and applied to some enterprise in another nation (that pays lower wages),then injustice is done to the members of the original community. Absentee landlordism is a more local example of this phenomenon.

    For this reason, any enterprise that has large scale impacts over a whole community, would be more equitably defined as a cooperative enterprise.

    1. bh2

      This falls a bit short of reality. Co-ops not only define some kind of “communal boundary” for the resource but also must provide risk capital necessary to develop it. To the extent the “whole community” does not provide that capital, it also does not share in its management.

      Not to say that if the whole community is adversely affected by mis-management it is not fully entitled to redress to the extent of impact on property rights (including health, etc.) of persons in that whole community.

      It’s also worth mentioning that any resource shared among a defined community can only be effectively managed to the extent that community has lawful enforcement rights to prevent abuse of ownership privileges. That pretty much requires some kind of legal contract recognized and enforceable through the courts (at the point of a gun), else the only alternative would be direct enforcement by the community (also at the point of a gun). Not to suggest either would be more subject to abuse than the other, but only to point out neither of these two alternatives would rely on property ownership “of a third kind”.

      While strongly cohesive communities may mutually manage resources successfully by negotiation when all community members have a direct economic stake in both the benefit and the risk of management policy collectively imposed, that’s actually a pretty rare situation in the modern world, in no small part because it’s tough except in an isolated community to define the extent of ownership be individual persons.

      Consider also the long-standing experience with depletion of open-water fisheries owned by none of the fleet owners harvesting them. If these owners were somehow vested with rights of ownership (and obligations of management), you would quickly see an oligopoly of private owners arise, which would offend sensibilities of voters and the governing class. On the other hand, if you invest ownership (and management) into the hands of a governing class, regulations will eventually be ignored (and likely outright compromised) by bureaucrats put in charge.

      While an oligopoly of private fleet owners would likely better manage the resource (looking to their own greatest benefit), it’s a non-starter politically. That leaves only the choice of management exercised by government bureaucrats with their usual faithful diligence (looking to their own greatest benefit). There is no third path to follow the money, so there is likewise no third path.

  2. JohnL

    Thanks Lambert. I’m about halfway through Elinor Ostrom’s book. I’m on the board of a 163 household member-owned water system. Although we implement many of Ostrom’s principles, her work has shown me that we’re weak on graduated sanctions and a cheap and accessible dispute resolution mechanism. I’m using the story of our water system to bring this to a wider audience.
    Since the enclosure of the commons in 18th? C England, TPTB have been taking the commons away from us to the point that we’ve forgotten that we have any or how to govern them.
    The commons and their governance are my passion now. The concept is perhaps our greatest hope for the future.
    Thanks for bringing the conversation to NC

  3. TarheelDem

    It might be a good time to unpack what it is that “property” points to. One thing in US society is that it is a bundle of specific rights, such as right of access, mineral rights, and so on. What other elements are wrapped up in this word that is so magic to some people?

    1. susan the other

      The concept of property is balanced between rights and obligations. It seems that the obligations get ignored whenever a commons is incorporated into some kinda mutual benefit association because over time its governance (in today’s perspective we look back over the last century) gives way to “profit” – the imperative of the unfinished concept of capitalism – and private interests take a free ride on everything that was accomplished by communal groups. So now, today, things are much different – there will be no more free rides for private corporations to appropriate these sources of public wealth and take their profits, leaving only debt behind. That’s the good news.

  4. psychohistorian

    I have a small poster on my wall with a picture of the Earth with the words: One Planet Indivisible

    What is the “shed” that Fukushima nuclear radiation is in?

    My point is that many of our problems are worldwide and cutting them up into smaller constituencies is what the plutocrats want to maintain their control of Fukushima type decisions…..isn’t GE just on record for signing a big contract with a Nigerian bank to install nuke(s)? I consider Nigeria in my shed and think some at GE should be in prison.

    1. susan the other

      Great point, Psycho. Going back to rights v. obligations. So if you divide up rights beyond an optimum reality-based threshold of people (a commons) it dissolves away things like standing and interest and leaves the management of the corporation in the hands of the managers who only have an obligation to produce a profit. Sometimes the problems that result will be world class – like Fukushima – because the isolation of obligation from reality prevents anyone from taking any action.

  5. j gibbs

    Legally speaking, ‘property’ is nothing more or less than an exclusive dominion protected by law. For this reason, calling something property has generally been enough to establish that dominion, regardless of consequences to others in a community. Go back two hundred years in America and you will discover where things began to go seriously wrong, allegedly in the service of accelerated economic development, which may mean either private accumulation or increased living standards, depending upon one’s point of view. An excellent book on the subject is Morton Horwitz, The Transformation of American Law, Vol I.

      1. skippy

        “exclusive dominion” is a quasi religious term…. cough… gawd gave man dominion over the planet as his gift to the chosen, the down side is he cursed man with freewill.

        skippy… schizoid comes to mind methinks… funny stuff…

  6. Banger

    I believe the idea of property is overdone. The ideal of a convivial society (not everyone wants that–negativity has its own career) always implies a great deal of sharing and a focus on the commons rather than on selfishness. Most property needs come from insecurity, fear, lack of trust and so on.

    Having said that, I wonder if the property ideas you mentioned are actually part of the law? Standing is a big deal in current jurisprudence and the tendency in the law is rule in favor of property owners and big powerful interests. The commons, in contrast, is devalued and this trend seems to be overwhelming since, in the past few decades, conservatives have dominated courts at all levels.

    1. susan the other

      One of our favorite misconceptions as a society is that we all need to like each other. All we really need to do is protect each other. We hand over the competitive edge to hard-nosed capitalists because they don’t like each other at all and they know it, but more importantly they know how to take over less aggressive public enterprises and commons ruthlessly and then divide the profits up amongst themselves leaving the people of the commons with all the debt. We The People need to get real. If we are going to protect our common interest we can’t let privateering corporations high grade the world.

  7. Paul Boisvert

    Great and timely post, Lambert. But of course it isn’t rocket science, just “commons sense”… :) Or at least it would be, if capitalist ideology didn’t pervade our consciousness so thoroughly. In fact, perhaps opponents of capitalism looking for a new “ismic” moniker should just change the u to an o and call our paradigm “commonism”!

    Many strands of thought interweave with this. One is “nested” commons, each within a larger type. Michael Albert’s participatory democracy, while probably unwieldy economically, fully embodies the political nature of this, as do most syndicalist (anarcho-, or otherwise) cooperative workplace visions. People should have a (weighted, democratic) say in decisions in proportion to the effect upon them. As a U.S. citizen, I should have a slight say (here in Chicago) in Maine pollution issues, but a larger say in Great Lakes pollution. Maine residents may have a little larger say in Great Lakes water pollution than some since the St. Lawrence will eventually carry it Maineward. All humans need an equal say in global warming issues. All U.S. citizens need an equal say in whether to have a federal job guarantee program, but only a local say in which specific ventures embody it in their county or state. Etc…

    Local commons would be governed by local citizens, but in a hierarchical framework of syndicates of affiliated groups, each larger regional group controlled democratically by its smaller member groups, as each larger group represents a larger or more general “commons”. It would require a global group to administer and ensure the “universal” human rights that we all have in common…

    But of course “political” commonality won’t work without economic commonality, which requires an alternative to capitalism. Economically, David Schweickart’s After Capitalism envisions requiring workplaces to be democratic cooperatives, i.e. “commons” with respect to using their firm’s capital and workers. But, crucially, it also embeds them in a community finance framework, in which capital is only leased, not owned, and therefore not able to be (re)moved by private whim, with all banks (which lend out the capital) being community owned and democratically controlled–local, regional, national. Again, each lower level of bank could be a member of a syndicate constituting the next level, with decisions on using the means of production democratically made by the “in proportion to effect” principle.

    Btw, no utopias here. Lots of room for developing ideas further, slowly remedying inevitable imperfections, and political disagreements–but of the genuine sort, based on differing ideas on how to best meet real human needs, rather than how a few can maximize their own profit. Crucial concepts will include those of intellectual capital (ideally, IMO, almost completely “common”, not privatized at all) and how to make decisions about “risks” that differentially affect members of commons. Long way to go…and “Commonism”, like its Siamese twin democracy, will undoubtedly prove to be a terrible system…just better than all the others.

    1. coboarts

      Ok, so the folks in Nor Cal get angry with the folks in So Cal who use up all ‘their’ water, but since they have the money and votes… I’m waiting for the first water pipelines to be proposed to bring water from those Great Lakes to parched southern cities and agricultural zones, from Texas to the CA Central Valley. They need the water, have the money and it only makes dollars and sense. Of course, this should be an easy one, we’re all Americans. At least all the siphon points would be on the American side. Can anyone see where this might raise some ire?

      1. Lambert Strether Post author

        We don’t need no steenkin’ siphon points. Invade Canada, say I. While we’re at it, destroy that pesky single payer system and make sure guns are everywhere.

      2. Paul Boisvert

        Hi, Coboarts,
        The point you raise is a good one in general, but the specific context is distorted. The folks trying to grow crops (or live suburban “lawn” lifestyles) in the parched SW DON’T have the money for what they want to do–they’ve just been getting cheap, subsidized, and/or unsustainable water for quite a while. That era is over. So if they have to pay their full share of the cost for shipping Great Lakes water there, they won’t be able to afford it–the prices they’ll have to charge for their produce will triple, and watering their lawn will take a week’s pay. They can then either scale back and live in consonance with an arid landscape, or move somewhere that it makes more sense to live in if they want to engage in activities that need lots of water.

        The key is to make people pay their fair share of the cost of using the commons, rather than externalizing those costs via economic/political clout, as currently happens under capitalism. Then localism and sustainability will re-emerge, and no one will be shipping Great Lakes water anywhere–unless they want to pay us Lake Denizens $200 a liter, which we’ll happily take. I never found a use for water that couldn’t be replaced by Dom Perignon, as long as someone’s willing to spring for it…

  8. Egad

    Perhaps this is getting too metaphorical, but would the franchise qualify as a common pool resource? Relevance to gerrymandering, voter suppression and such.

  9. Skeptic

    “8. Nested enterprises. Appropriation, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises.”

    Enforcement mentioned only once. Without enforcement, you have nothing. See 2007 Crash and TARP BAILOUT and lack of enforcement. SEC, Dept Of Injustice, etc, all little interested in meaningful Enforcement. Thus the Crime Wave metastasizes probably to your and other landfills.

    In my region, we had a landfill put in with liners, etc. Well, it is all dependent upon the inspectors from the co-opted Dept of the Environment. We are all held hostage to their enforcement or lack thereof. Thus, many suspect that the Landfill rules and regs are not enforced and at 2AM or other convenient times, lots of toxic waste may be going in there, to be revealed in the watershed and other places decades from now.

    The finest economic and social theory put into Law will not be worth a bucket of spit without enforcement. We have lots of Rights now on the books and they are unenforceable.

    1. TheCatSaid

      Very true. However, we can’t afford to wait until the perfect system is put in place with enlightened stakeholders on all sides. If we can take even small actions that are in the direction we want to go in, that can help to create something better. Sometimes things can move much faster than anyone expects (Berlin Wall, anyone?).

  10. TheCatSaid

    Participating in a recent Integral Accounting audit process at M-CAM leads me to see some ways in which CPR might be better understood and managed through applying related processes and understanding.

    Integral Accounting uses six “dimensions” through which they look at a community / enterprise / project: Commodity, Custom & Culture, Knowledge, Money, Technology and Well-Being. By identifying the relative positives and negatives in each category, it can lead the way to unexpected actions.

    The related Inverted Alchemy blog also describes a different formula for looking at wealth. (Scroll down to see the formula.) It describes wealth as the preservation of the maximum number of options for the maximum number of people into the future without limit.

    Thus, cutting down a tree and selling it for timber will reduce the future options for its use for multiple people and purposes such as providing shade and a place to meet, releasing beneficial chemical aerosols through its canopy, acting as a reservoir for water, serving as a chemical factory to bring soil substances and micro-organisms to the surface, storing carbon, photosynthesis, giving privacy, providing an environment to restore the human spirit, supporting a wide range of insects and wildlife.

    In this example, it’s not that trees should never be harvested for timber. That point is rather that actions taken should be chosen in light of consideration of the consequences on others in the present and in the future.

    These are practical tools in successful practical use around the world. The integral accounting concepts seem to be a logical extension to Ostrum’s work, offering much potential related to CPR definition and governance and well-grounded by case studies on various scales.

  11. LillithMc

    When Europeans paid someone in a tribe some beads and then claimed the right to all their land and assets, it was a violation of humanity. The same is true if my backyard is fracked, my water destroyed, my land shaken by earthquakes and authorities protect the frackers. There is a global commons forming that needs to respect moral values and ethics in place of the backroom deals called trade agreements done to enrich the powerful few using what should be called criminal actions. Nothing is sustainable without basic honesty and respect for humans and their right to life.

  12. Adam

    As someone coming from the legal world, I am very sympathetic to the idea that the world does not neatly divide into public and private, yet I am having a lot of trouble with the idea of three types of property because I am trained to see property rights as existing only to the extent that they are enforceable. One can claim whatever rights one wants, but if they aren’t enforceable, they don’t have a lot of meaning. The US legal system doesn’t really recognize commons. It recognizes that a myriad of individuals may be stakeholders in a resources or may have some sort of interest in it, but it recognizes their interest qua individuals, not as a collective. The closest we come is recognizing that associations of individuals (e.g., WWF, US Chamber of Commerce) have interests in resources, but only on behalf of their members. Perhaps one could point to property that is placed in trust for the interest of a community, but that is a very unusual type of property, and it is ultimately administered by a trustee, rather than by the community. My hesitation here might just be semantic, but I balk at calling communal interests in a resource as a type of property right.

    1. TheCatSaid

      Can local government / towns / municipalities make decisions to create a special class of property that they wish to administer on a user/participant basis? IOW, what restrictions exist to designating something new, initially at the most local level?

    2. Tony

      If you’re looking for a “communal property” example in the law, I recommend a tour through the oil patch.

      “Correlative rights” in a common reservoir have been created, maintained and enforced for over half a century in most oil-producing states.

      The days of “I drink your milkshake” (like Daniel Day-Lewis in “There Will Be Blood”) are mostly over in the United States, and have been for a long time.

    3. shtove

      This is why I was puzzled over the disapproval of standing when it comes to enforcement.
      That seems to me a fairly rational way of determining who has an interest in the resource. In the absence of a legislative definition the court will use precedent to sift the relevant facts – either way the authority is derived democratically.
      If a court is not the appropriate means to make that determination, I’m afraid we’re into regulatory bureaucracy. Hello, Wall St.

  13. sd

    Why is there no interest in recognizing 4 types of property?

    What comes to mind is the Arctic which, until very recently, was of little interest to anyone other than the Inuit.

  14. Chris Cook

    The subject of property rights, the protocols which define them, and the instruments which are necessary for their exchange, has been central to my work for maybe 15 years.

    The first thing to say is that – as that notable jurist and pedant Jeremy Bentham pointed out – “Property” is not an object.

    It is to be observed, that in common speech, in the phrase “the object of a man’s property”, the words “the object of “are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words “a man’s property” perform the office of the whole.

    ie Property is a relationship: it is the bundle of rights and obligations which links a subject person to an object.

    Secondly, we have become used, at least West of Suez (I shall come back to East of Suez), to the use of the absolute property rights of ‘dominium’ which dates back to the Romans, with roots with the Greeks, and – where I agree with Pirsig that everything went wrong – with Aristotlean ‘subject/object’ metaphysics.

    So we are used to two either/or absolute property rights of ownership:
    (a) absolute permanent ownership of infinite duration, such as freehold land, and ‘equity’ shares in a joint stock company which confer what has been called the Divine Right of Capital;
    (b) absolute temporary use for a defined term (‘date certain’) such as leasehold land, and dated interest-bearing debt or loan-stock such as preference shares..

    But of course, it’s not a matter of ‘either/or’ is it? There is at least one further property right which must be accommodated, which is that of use for an indeterminate period, such as an ‘evergreen’ tenancy at will agreement to occupy land or the undated prepay credit instrument which is what actually constitutes currency.

    In Scotland (uniquely as far as I know), this indeterminacy occurs in criminal law in the fact that there are three verdicts: ‘guilty’, ‘not guilty’ and ‘not proven’.

    But as Martin Hay has pointed out, in his fascinating work on what he calls Chiralkine Logic there are in fact FOUR states, because the zero indeterminate property right may be resolved into two ‘chiral’ states of both/and and neither/nor.

    The four states defining economic interaction are:
    (0,0) = Not Mine/Not Yours;
    (1,0) = Mine/Not Yours
    (0,1) = Yours/Not Mine
    (1,1) = Both Mine and Yours

    But lets park that concept, important though it is, due to the way it will enable complete dis-intermediation in data flows. Unfortunately, Martin is applying his Chiralkine Logic to the existing paradigm of absolute property rights, illustrated by the fact that he has applied for a patent to protect the transaction engine he is building, but which is hopelessly mired in complexity as a result of trying to accommodate existing conflicted property rights, when the system can be defined without them.

    But I digress.

    My work for fifteen years or more has been in respect of the protocols which define property rights, and the development of protocols which work better in an era of direct instantaneous connection than the conflicting twin peaks of finance capital which essentially put us in the shit we are in.

    I have come to the conclusion that these protocols are to be found not in the Western absolutes and Rule of Law but rather in the use of the consensual interactive associative protocols to be found East of Suez.

    As has been said, there are as many Sumo wrestlers in the US as there are attorneys in Japan, and that is because when trust is assumed, and ‘face’ matters, it is an order of magnitude easier to write simpler consensual agreements to a common purpose, than to write prescriptive adversarially negotiated contracts based upon the necessity to protect the interests of the holders of conflicting absolute property rights.

    As Lessig puts it, Law is Code.

    Consensual machine programmable interactive protocols are already emerging, and I use the word Nondominium to describe how these may be used to define rights to use and usufruct in a way that replaces dominant positive rights over others, with negative veto rights.

    When linked to generic use of the prepay (‘stock’) credit instrument – with indeterminate duration – which pre-dates the banking system, I believe that a new economic paradigm will rapidly come to replace the existing paradigm and dispel the Myth of Debt

    1. Martin A. Hay

      There are four kinds of property right, but two of them appear differently depending on the relative positions of the observers. The other two forms appear the same with respect to the observers, so there are six states in all. To picture this, imagine standing in front of a mirror and comparing this with standing in front of another person who is facing you. Left and right are reversed, but the points at the top and bottom of the body are not.

      The two forms that are unchanged are symmetric as between the two cases. The other two forms are antisymmetric.

      The states of property rights depend upon where they are in the process of exchange, and thus are inseparably linked to the creation, exchange and redemption of money.

      Conventional economic thinking recognizes one form of capital (credit) and one opposite, debt. Within a chiralkine system, there are two forms of credit (spent and unspent) and two forms of debt (spent and unspent). It follows that there are two mirror opposite forms of capital. Both have to be accounted for to enable stable, equitable exchange.

      1. Martin A. Hay

        It would probably help if I explain how analysis of a figure facing another or its own image in a mirror (see my first post) maps to chiralkine accounting, and hence relate my first post to that of Chris Cook.

        Chiralkine accounting is based on four numbers in order, two of which are 1 and two of which are 0. There are six permutations of the 1s and 0s possible. To “read” a chiralkine number, you have to associate each component with a side of two oppositional pairs: 1 representing “is” and 0 representing “not”.

        As Chris noted, you can identify four property rights:

        mine, not yours (1, 0);
        not mine, yours (0, 0);
        not mine, not yours (0, 0) ; and
        mine, yours (1, 1).

        Now, to put these into four numbers, we incorporate a second oppositional pair: right, left. So now we have:

        mine, not yours, not right, left (1, 0, 0, 1) – unspent credit
        mine, not yours, right, not left (1, 0, 1, 0) – spent debt
        not mine, yours, right, not left (0, 1, 1, 0) – unspent debt
        not mine, yours, not right, left (0, 1, 0, 1) – spent debt
        not mine, not yours, right, left (0, 0, 1, 1) – redeemed credit
        mine, yours, not right, not left (1, 1, 0, 0) – redeemed debt

        The dashboard of the transaction engine we are building is laid out with these states in two columns, because they fall into left and right families:

        (1, 0, 0, 1) (0, 1, 1, 0)
        (0, 1, 0, 1) (1, 0, 1, 0)
        (0, 0, 1, 1) (1, 1, 0, 0)

        Thus, from six “complex” numbers we recover three interrelated oppositional pairs.

        I think you could control the direction of movement of a robot by imagining using the left and right sides of your body or those of another person if you used a brain-scanning headset. For example, to go left, you would imagine clenching your left hand, not your right hand (1, 0, 0, 1). To go upwards, you would imagine clenching both hands (1, 1, 0, 0). To go down, you would imagine clenching neither hand (0, 0, 1, 1). To imagine going forwards, you would imagine clenching another person’s right hand, not their left hand (0, 1, 1, 0). Thus, the six numbers map to the control of movement in three dimensions.

        The invented word “chiralkine” comes from chiral as in of the hands and kinetic as in motion. Money and trade are all about property rights in motion. Movement of the hands.

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