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Petersmann, 2002), wage dumping, stock market bubbles etc. In short, they articulate concerns of the social implications of disembedding markets and above all the financial sector from the real economy.

Thus it might be one thing to treat services like goods, and it is another to grant unimpeded access to the market to financial instruments of which we have only the vaguest idea of how they function and how they will affect market behaviour.

Finally when we try to assess the benefits we can reap from an extensive public domain in the area of knowledge when compared it to a regime that supposedly increases “production” of knowledge through the protection by exclusive property rights (see e.g. J. Boyle, 2003b), we face again a different problem. It seems highly ironic though, that with the advent of digitalized information and the unprecedented possibility of dissemination not subject to the traditional marginal cost barriers, we encountered an “enclosure” movement of gigantic proportions. Thus at a time in which information could be shared and thereby increase in value, we quite strangely reversed gears and opted for “solutions” that rely on highly problematic analogies to the free rider and the concomitant undersupply problems of open access regimes to natural resources. For a seminal discussion of the these problems in respect to resources, see (US) National Academy of Sciences (1986); for further detailed examination of property rights and resource management, see Ostrom (1990) and Ostrom et al. (1994).

The pleas for further “privatization” become doubly ironic when the case for their extension is made on the basis of an argument that without such “incentives” no useful knowledge would be generated, since an inventor would be deprived of the fruits of his labour.1 The first assertion misses the point since knowledge production is essentially a social enterprise and thus not like the hawking of some “private” ideas, the second invokes – mirabile dictu – the labour theory of value, which otherwise has become anathema in the economic discourse. The incoherence of this argument for the extension of property rights becomes downright ridiculous when e.g. for compilations of simple data, such as phone numbers in the public domain, special “copyrights” are demanded and even granted on the basis of the efforts spent in collecting them.

The Genealogy of “Public Good” The sneaking suspicion that our debates become so quickly muddled because of the inadequacy of our conceptual tools, gains plausibility when we take a closer look at the “genealogy” of the concepts and when we compare different conceptualizations of the public and the private realm over time.

Significant shifts occur when the discussion of what is ‘good” (bonum) – with the ambiguity of covering both the “thing” and its “property” - moves from an interest in the “commonality” of all goods to the individual evaluation of considering something to be good. Here of course both the possessive individualism and a change in the theory of value – moving from the labour theory to See e.g. Humes’s argument for intellectual property rights in perpetuity: ” Who sees not, for instance, that whatever is produced or improved by a man’s art or industry ought, for ever, be secured to him in order to give encouragement to such useful habits and accomplishments. That the property ought also to descend to children and relations for the same useful purpose” (1970a, p.194).

Friedrich Kratochwil

individual assessment - matter, particularly for “private goods” which are now increasingly becoming mere “commodities”, The “ public good” as salus publica is also affected thereby as it is increasingly discussed in terms of “charges” or duties of the sovereign which he is supposed to supply. But as we can see in the term “charge” (not so clearly in the German version of “Pflichten” of the sovereign and in the later conceptualization of “Staatsaufgaben”), the term “charge” emphasizes not only the addressee of such duties, but also the expenditures which have to be incurred for their implementation.

Here the dynamics towards commodification by making the “charge” into a “public good” is already adumbrated, since the sovereign has to raise taxes as he cannot rely on contributions or sales, as already Hume points out. In the same vein Smith discusses this problem within the context of the “Revenue of a Sovereign or Commonwealth” - but he also points to the danger that the sovereign might actually spend this money not on public goods but use it for other adventures. This fear, in turn, stimulates thoughts about possible alternatives of “supply” – such as the privatization of highways that Adam Smith advocates- and it finally leads to the assumption that some of the “public charges” have properties that do not allow for their supply by markets, upon which later the public goods debate focuses as part of the larger problem of market failure.

Studying such changes provides us with important clues as to the particular problems underlying their constitution and to the effects of the subsequent practices they enjoin or authorize. In this context I found two texts illuminating. One was the already mentioned classic Smith (1838) on the Wealth of Nations, the other, an, at first, rather unlikely candidate for shedding light on our problematique, namely the Institutiones which are part of the Justinian Codex of Roman law (Gaius, 1871). There is of course no way in which I can do justice here to the complexities of both works. Nevertheless, they do give us, even at a first glance, some useful pointers for untangling some of the confusions of two contemporary debates: one still ongoing (global public goods) the other having run more or less its course (intellectual property rights) and has ended with the victory of the “enclosure movement” of the public knowledge domain. While here I am mainly concerned with the first debate a few side glances to the other are intended to show the heuristic usefulness of this approach focusing on property regimes.

Understanding the Commons: what the Property Regime of Roman Law can Teach us.

The brief discussion above has shown that despite the familiar distinction between public and private “things”, drawing the boundary between them is subject to great historical variation; this fact, in turn, indicates that it is not so much the “things” themselves as the meta-regime that assigns their status which matter. 2This of course should not come as a great surprise to lawyers or theorists dealing with “property”: “having” something is not determined by the relationship between the “thing” and a person; ‘property” primarily refers to the regulation of the relationships among actors, vesting them with or withholding from them certain rights of access and use (for a discussion of the fundamental conceptual issues see Bell and Parchamovsky, 2007).

It is in this sense that forms of non-exclusive property provide some interesting templates for analyzing a variety of collective action problems that traditionally have been identified with “public” goods. Here the “tragedy of the commons” comes to mind, which dominated the debate for quite some time. Reducing everything to a “prisoners dilemma” that allegedly inevitably occurs in open access regimes, the image of the overuse of the commons provided a powerful justification for the “privatization” policies of the 80s. Quite paradoxically, privatization was also used in justifying the “second enclosure“ through the assignment of exclusive intellectual property rights, despite the fact that the classical problem of overuse is not at all an issue there. In the case of information/knowledge Similarly the notion of the “public” is here not a residual for all the problems the “market” cannot solve “efficiently” as Smith’s dictum that “defense is more important than opulence” seems at first to suggest, but apparently rests on a much more substantive notion of a community despite all “unseen hand arguments.

Problems of Policy-Design based on Insufficient Conceptualization: The Case of “Public Goods” and of most of the products available in cyber space we actually have the non-rivalry of consumption, that is mostly lacking when we deal with goods in real space.

When we have a look at Roman law whose distinctions of private and public realms has been fundamental for the subsequent development of Western legal orders, we notice that it contains a much more fine grained division. Roman law distinguished between res nullius (belonging to no one i.e. not yet appropriated such as fish or game, or abandoned property) (Gaius, 1871, point 2.1.7), res communes (open to all of a group such as the commons) (1871, point 2.1.1), res publicae (things belonging to the public, qua public (1871, point 2.1.2), such as public squares and roads), res divini (sacred things that cannot be owned by humans) (1871, point 2.1.8), or res universitatis (things belonging to a specific group in its corporate capacity) (1871, point 2.1.6). While the first and the third still are part of our political and legal discourse and while the last one survives in our “universities” conceived as corporations and in corporate law, the interest in the res communes and res divini was soon eclipsed after the revival of Roman law. For Grotius common property became something of an oxymoron and Locke in a very consequential conceptual move – “once the whole world was like America” as he stated (1952, paragraph 66) - simply reduced common property to some episode antecedent to modernity that is characterized by the establishment of exclusive private property rights.

He thereby not only created an optique of progress from some “primitive” to “real” property, but he also devalued by a stroke of the pen communal property arrangements of non-European peoples and thereby provided the justification for their dispossession.

Discussing these issues within the wider framework of property rights (rather than goods) proves also to be heuristically fruitful, when analyzing some of the pitfalls of the public goods debate. Let us look again at Hardin’s seminal article “Tragedy of the Commons” which seemed to provide a striking illustration of the public goods problematique (Hardin, 1968; for an overview of the ensuing debate see Feeny et al., 1990). Given the inevitable overuse of the commons, Hardin claimed that the situation resembled a n-persons prisoner’s dilemma from which only governmental imposition or privatization provide a way out. But as the example of Roman law suggested, the conceptual problems lie deeper, since the very notion of a public domain is highly ambiguous to begin with, and so is the notion of what is “private”, as we shall see. As to the first, it is best exemplified in the definitions one finds in law dictionaries. Thus Oran’s Dictionary of Law states that the public domain is “land owned by the government” but also that it also means “something free for anyone to use or something not protected by patent and copyright” (2000). In the first conception we have an “owner” while the second suggests that there is no owner and, by implication, that this is frequently at the root of the problems we encounter.

Thus, it is perhaps not too surprising why many of the dire consequences predicted by Hardin did not materialize, as later studies by Ostrom (1990) found. After all, if overuse is the problem then by definition we do not have a public goods problem. The main conceptual error seems to be Hardin’s conflation of a degenerating common property regime, with the public character of the good governed by it. As was the case with historical common property, the “commons” was owned by a definite group who, as members, had open access to the resource. In terms of Roman law the distinction between res communis and res nullius is crucial. Res nullius is open to all (open access) – and overuse is usually the result of such an open access regime where - while a res communis is only open to the members. As the different grazing rights of nomadic people show such customary practices are frequently quite stable, even in the absence of central governments. A prominent property lawyer has therefore argued that we often observe – contrary to Hardin - a “comedy” of the commons, (taking the Aristotelian criterion for this genre i.e. its “happy ending” rather than humour, Rose, 1986).

The main factors undermining established common property regimes are less the difficulties of collective action, than technological development and population growth (or “newcomers”) that change both pillars of such orders: the customary practices that put limits on taking, and of that of limited access. Of course sometimes difficulties arise despite such limitations, due to the nature of the

Friedrich Kratochwil

resource in question. For example, fish in the sea or flowing waters cannot be “caged” and that means we might come close to an open access regime rather than a common property arrangement. In that case special enforcement problems arise. Where the resource is more stationary, remaining in certain habitats, regime effectiveness rest on the ability of limiting membership and on social pressures to respect the existing customs. Both factors can be found in tightly- knit communities, as we encounter them in fishing villages from Bali to Maine (Acheson, 1988). The upshot of the argument is however, that there is no automatic connection between common pool resources and any type of property regime, other suggestions not-withstanding.

In this context it is also useful, to specify a bit more clearly the nature of “ownership” and distinguish between different types of rights that may come singly or in bundles. Thus we can distinguish between rights of access, of extraction (rights to obtain resources), of management (right to regulate use pattern and transform the resources in question by improvements), of exclusion (granting and with drawing access and withdrawal rights), and of alienation (the right to sell or lease management- and exclusion rights).

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