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Ostrom, Elinor; Hess, Charlotte --- "Private and Common Property Rights" [2010] ELECD 381; in Bouckaert, Boudewijn (ed), "Property Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Property Law and Economics

Editor(s): Bouckaert, Boudewijn

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847205650

Section: Chapter 4

Section Title: Private and Common Property Rights

Author(s): Ostrom, Elinor; Hess, Charlotte

Number of pages: 54

Extract:

4 Private and common property rights
Elinor Ostrom and Charlotte Hess


1. Introduction
The relationship between private property and common property has
engaged both legal and economic scholars in a long series of controversies
over the meaning, the sequence of development, and the superiority of
private vs. common property. The issues debated relate to the efficiency,
equity and sustainability of private property as contrasted to common
property. The scholarship in both professions has been characterized by
formulations that are adopted by each generation of scholars without
much effort to examine their foundations or to test them by empirical
research. Both have their doctrinal aspects. And, the dominant view
in both disciplines has been that private property is clearly superior to
common property. Many scholars think of contemporary examples of
common property as remnants of the past, likely to disappear during the
twenty-first century (see Atran 1993). Recent research, however, has chal-
lenged the presumption that private property is necessarily superior to
common property.

2. The legal debate over private vs. common property
Prior to the publication in 1861 of Ancient Law by the distinguished
English jurist, Henry Sumner Maine, the accepted view among Western
jurists was that the origin of the concept of property in ancient times
was the occupation of land by a single proprietor and his family (Grossi
1981). Further, the superiority of individual property holdings was so
well accepted in the legal literature of the early nineteenth century that
the possibility of other forms of property ...