The Commons and the Anticommons in the Law and Theory of Property

Abstract

Recent work on the commons and the anticommons is novel and promising. Briefly, a commons is a resource which all have a liberty-right to use, from which no one has a normative power to exclude others, and which no one has a duty to refrain from exploiting. By contrast, an anticommons is, preliminarily, a resource from which each person has a normative power to exclude others and which no one has a liberty-right to use without the permission of others. This article explains how commons and anticommons analysis illuminates property law as well as property theory, shows why the analysis is novel, explores some further developments of the analysis, and ventures a critical appraisal of it. Although Buchanan and Yoon identify economic symmetries between the common and the anticommons, no general combined legal and philosophical examination of them yet exists, which is what this article provides. Prominent figures in the literature include Hardin, Heller, Dagan, Merrill, H. Smith, and Frantz. The article assesses their work and that of others. Neither all commons nor all anticommons are tragic. The commons and the anticommons, as extremes on a spectrum, illuminate the boundaries of private property. Yet anticommons analysis helps only modestly with governmental takings of private property and the numerus clausus principle. The further account of the liberal commons by Dagan and Heller runs into general difficulties and its extension to marital property encounters pitfalls. The next several decades will reveal much about the intellectual staying power of work in these areas. For the moment, it suffices to be grateful for work, much of it published within the last seven years, that pushes forward speculation about the theory of property and helps to solve real-world problems in property law.

Keywords: property law, analysis of commons and anticommons,

JEL Classification: K11