[Reader-list] In Defense of Public Space

[Jeebesh Bagchi]

This articles makes some very interesting comments about the `tragedy of the 
commons. so take it as a continuation of the earlier posting. cheers, jeebesh


IN DEFENSE OF PUBLIC SPACE by Roderick T. Long
http://freenation.org/a/f33l2.html
  
Nothing to Gain But Our Chains? 

In an important series of articles,1,2,3,4 Rich Hammer has recently invited 
us to rethink some of our assumptions about what a libertarian society would 
be like. We ordinarily think of a libertarian society as one of maximum 
freedom and maximum privacy: a society where you can do whatever you like (so 
long as it's peaceful) and no one else can pry into your personal affairs. 

Rich suggests otherwise. A libertarian society, he argues, is one in which 
public space — both physical space and decision space — has been privatized 
as far as possible. This is desirable, he says, because it is easier to 
police irresponsible behavior in private space than in public space. Since no 
one can be excluded from public space, no one has any incentive to maintain 
it properly, and so a "tragedy of the commons" is generated. By contrast, in 
a world where everything is privately owned, we must abide, wherever we go, 
by the rules laid down by the owners. Rich envisions a society in which no 
one is allowed access to the means of cooperation with others unless he 
submits to a multitude of restrictions: bonding, disarmament, full disclosure 
of finances, and so forth. Those who do not comply with these rules will find 
themselves cut off from food, drink, communication, transportation, even the 
use of restroom facilities. 

Rich's arguments are a useful corrective to the popular notion that a 
libertarian society would be a hopeless chaos. But we may feel some 
discomfort at how far Rich's vision goes in the direction of the opposite 
extreme. In a famous quote, the 19th-century anarchist Proudhon wrote: 

  "To be GOVERNED is to be kept in sight, inspected, spied upon, directed, 
law-driven, numbered, enrolled, indoctrinated, preached at, controlled, 
estimated, valued, censured, commanded, ...noted, registered, ... taxed, 
stamped, measured, ... assessed, licensed, authorized, admonished, forbidden, 
reformed, corrected, punished."5 

But if to be free is also to be inspected, licensed, numbered, stamped, 
authorized, and so forth, we might wonder whether building a Free Nation is 
worth the effort. 

But is this world of hyper-regulated anarchy the only possible model for a 
libertarian society? I don't think so. But to see why it is not, I suggest we 
need to rethink our assumption that a libertarian society must be a society 
without public space. 

Public Property Without Government 

When we think of public property, we think of government property. But this 
has not traditionally been the case. Throughout history, legal doctrine has 
recognized, alongside property owned by the organized public (that is, the 
public as organized into a state and represented by government officials), an 
additional category of property owned by the unorganized public. This was 
property that the public at large was deemed to have a right of access to, 
but without any presumption that government would be involved in the matter 
at all. I have learned much about this idea from excellent recent articles by 
Carol Rose and David Schmidtz: "Implicit in these older doctrines is the 
notion that, even if a property should be open to the public, it does not 
follow that public rights should necessarily vest in an active governmental 
manager. ... the nineteenth-century common law ... recognized ... property 
collectively 'owned' and 'managed' by society at large ...."6 

"Public property is not always a product of rapacious governments or mad 
ideologues. Sometimes it evolves spontaneously as a way of solving real 
problems."7 I have no interest in defending public property in the sense of 
property belonging to the organized public (i.e., the state). In fact, I do 
not think government property is public property at all; it is really the 
private property of an agency calling itself the government. (This agency may 
claim to be holding the property in trust for the public, but its activities 
generally belie this.) What I wish to defend is the idea of property rights 
inhering in the unorganized public. 

The Economic Argument 

Since the days of Aristotle, the traditional argument against collective 
ownership of any kind has been the tragedy of the commons: if each additional 
use depletes or degrades a resource, and yet there is no way of restricting 
access to the resource, then no one will be motivated to use the resource 
sparingly, since what one person refrains from, another may take, and so the 
first person is no better off for having refrained. Hence the need to 
restrict access by privatizing the commons. What Rose and Schmidtz point out 
is that this argument works only to the extent that additional use diminishes 
the value of the resource. But this is not always the case; sometimes, adding 
more users enhances the value of the resource: the more the merrier. When 
that is so, there is no point in restricting access; we then have what Rose 
calls a comedy of the commons (i.e., happy ending rather than sad). 

Rose's point is clearest when we consider decision space. Think of the 
libertarian movement as filling a decision space: which libertarian books and 
articles will be written, which libertarian projects and causes will be 
promoted, and how, etc. The libertarian movement is a public space; anyone 
can participate, at any time. And this is all to the good. It would be 
foolish to restrict access, to make it more difficult for people to 
participate in the movement, because the movement is not a scarce resource 
that can be used up; on the contrary, the more additional people start 
participating, the closer the aims of the movement as a whole will come to 
being achieved. (Consider how Ayn Rand and Leonard Peikoff have weakened the 
effectiveness of their own Objectivist movement by trying to make it into 
their own private property, purging potentially valuable contributors to the 
cause whenever they resisted the authority of the "owners.") 

Intellectual property is another comedy of the commons, I would argue, since 
one person's use of an idea does not deplete the idea for others, and 
ordinarily even enhances it. How else, after all, does civilization advance 
except via some people grabbing other people's ideas and improving on them, 
to the benefit of society as a whole? 

But the clearest case of a comedy of the commons, as Rose and Schmidtz point 
out, is the market itself. The more people participate in the market, the 
more everyone benefits. The market is a paradigm of public space. 
Protectionist laws attempt to turn the market, or portions of it, into 
private property by erecting coercive barriers to access; this sort of 
"privatization," though, is destructive, and anathema to libertarian ideals. 

Of course, these are easy cases of comedies of the commons, because things 
like markets, ideas, and political movements are not physical, and so are not 
subject to scarcity. Physical space, though, is always subject to scarcity; 
so how could there be comedies of the commons here? Mustn't any scarce 
resource inevitably succumb to the tragedy of the commons unless access is 
restricted? 

Not necessarily. There are some cases in which, at least within certain 
parameters, a physical resource's value is enhanced by increased use. As Rose 
and Schmidtz point out, this is particularly true when the resource is tied 
in some way to a non-physical comedy-of-the-commons resource, like a market 
or a town festival; since "the more, the merrier" applies to these 
non-physical resources, it also applies, to some extent, to the physical land 
on which the market or festival is held, and to the physical roadways leading 
there. Since everyone benefits from having more people come to the fair, 
everyone also benefits from making physical access to the fairgrounds free as 
well. 

Of course there are limits. If too many people come, the fair will be too 
crowded to be enjoyable. But this simply shows that some goods have both 
tragedy-of-the-commons and comedy-of-the-commons aspects, and which one 
predominates will depend on the circumstances. Public property may be the 
efficient solution in some cases, and private property in others. (Or a 
bundle of property rights may be split up, with some public, some private.) 
Most societies have had some common areas, policed by custom only, without 
overgrazing problems. 

The Ethical Argument 

On the libertarian view, we have a right to the fruit of our labor, and we 
also have a right to what people freely give us. Public property can arise in 
both these ways. 

Consider a village near a lake. It is common for the villagers to walk down 
to the lake to go fishing. In the early days of the community it's hard to 
get to the lake because of all the bushes and fallen branches in the way. But 
over time, the way is cleared and a path forms — not through any centrally 
coordinated effort, but simply as a result of all the individuals walking 
that way day after day. 

The cleared path is the product of labor — not any individual's labor, but 
all of them together. If one villager decided to take advantage of the 
now-created path by setting up a gate and charging tolls, he would be 
violating the collective property right that the villagers together have 
earned. 

Public property can also be the product of gift. In 19th-century England, it 
was common for roads to be built privately and then donated to the public for 
free use. This was done not out of altruism but because the roadbuilders 
owned land and businesses alongside the site of the new road, and they knew 
that having a road there would increase the value of their land and attract 
more customers to their businesses. Thus, the unorganized public can 
legitimately come to own land, both through original acquisition (the mixing 
of labor) and through voluntary transfer. 

Public and Private: Allies, Not Enemies 

Public space has both advantages and disadvantages. On the plus side, 
unrestricted access means you can do as you please there, without asking 
permission, so long as you don't violate others' rights. On the minus side, 
the difficulty of policing public space means there may well be more 
irresponsible behavior there. A society that permits both public and private 
spaces — that has public and private roads competing with each other, for 
example — allows individuals to make the trade-off for themselves. If you 
want the freedom to drive your motorcycle in the nude, with a howitzer 
strapped to your back, and you're willing to put up with a greater risk of 
irresponsible behavior from others, take the public road. If you prefer 
greater security, and are willing to obey a few more rules and suffer some 
invasion of privacy to get it, take the private road. If one option becomes 
too onerous, the other is still available. Private space can become 
oppressive if there is no public space to compete with it — and vice versa. 

I envision a world of many individual private spaces, linked by a framework 
of public spaces. The existence of such a framework may even be a 
prerequisite for complete control over one's own private space. Suppose a 
trespasser comes on my land and I want to push him off. If all the land 
around me is private as well, where can I push him, without violating the 
rights of my neighbors? But if there is a public walkway nearby, I have 
somewhere to push him. Thus, the availability of public space may be a moral 
precondition for the right to freedom from trespassers. D 
  
References 
 
1 Richard Hammer, "The Power of Ostracism," in Formulations, Vol. II, No. 2 
(Winter 1994-95). 
 
2 Richard Hammer, "Protection from Mass Murderers: Communication of Danger," 
in Formulations, Vol. II, No. 3 (Spring 1995). 
 
3 Richard Hammer, "'Liberty' is a Bad Name," in Formulations, Vol. II, No. 4 
(Summer 1995). 
 
4 Richard Hammer, "Toward Voluntary Courts and Enforcement," in Formulations, 
Vol. III, No. 2 (Winter 1995-96). 
 
5 Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth 
Century, 1851; trans. John B. Robinson (London: Pluto Press, 1989), p. 294. 
(This quotation is the inspiration for the heading "To be governed ..." on 
Cato Policy Report's back-page horror file.) 
 
6 Carol Rose, "The Comedy of the Commons: Custom, Commerce, and Inherently 
Public Property," p. 720; in University of Chicago Law Review, Vol. 53, No. 3 
(Summer 1986), pp. 711-781. 
 
7 David Schmidtz, "The Institution of Property," p. 51; in Social Philosophy 
& Policy, Vol. 11 (1994), pp. 42-62.