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«EUI Working Papers RSCAS 2012/23 ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Global Governance Programme-18 MULTILEVEL GOVERNANCE OF INTERDEPENDENT ...»

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Only the last right (full ownership) seems to contain all the others and property systems that do not contain specific provisions for alienation, therefore, are frequently considered deficient. But Blackstone notwithstanding (1979, p.2, where he defines property (very much in Roman law terms) as the “sole and despotic dominion… over the external things of the world, in total exclusion of the right of any other individual in the universe.”), the possibility of their distinction and the practical consequences flowing from their un-bundling indicate that not all rights need always come together.

Thus the common property system of a corporation clearly distinguishes between ownership and management rights. Similarly, the example of tickets by which we purchase the “right of access” to a national park, makes it clear that we thereby are not becoming “claimants” for the use or taking of any of the resources we encounter in the park, even if we “mix” (Lockean or Marxian) labour with the good taken. The purchased access right actually categorically forbids any such attempt. And the duty to leave as much as possible the pristine character of these places – even removing native settlers also distinguishes them from the res communes which belong to the public. Here we have then, something closer to the notion of res divini in that these things are not appropriable as they belong to the “gods”. Thus they inspire awe by being explicitly set aside as something “sacred”.

Finally, contrary also to our first impression of the “plenitude” of powers granted by the right of alienation, even the latter is not simply of one cloth. As the case of a trustee shows, s/he might possess access, extraction, management and alienation rights, but particularly the latter are frequently subject to certain provisions limiting the exercise of this right.

Another major mistake in drawing the “morals” from the Tragedy story is to assume that all public goods generating the collective action problems stem from a prisoners dilemma which requires either governmental intervention or privatization. A short reflection suffices to show that collective action problems arise in a variety of circumstances. Even in cases which resemble games of coordination where collective and individual rationality do not diverge - as when we try to settle on common technical standards but fail to agree due to sunk costs of the systems we use – the question remains whether government intervention and privatization are always the most effective means.

This leads me to the second “ambiguity” mentioned above, i.e. that of the “private” domain. After all, we should notice that “privatization” is not the simple opposite of governmental intervention since the exercise of private rights is, after all, dependent on the guarantee of “public” power. The case for privatization squarely rests on the assumption that private ownership will lead to the optimum investment in, and use of the resource. A farmer, for example, does not want to “kill the goose which laid the golden egg”. No such considerations are said to prevail in common access regimes. However, the argument needs a further support which consists in the (usually silent) assumption that the individual owner does not discount the future and has a stake in maintaining his way of life. But Problems of Policy-Design based on Insufficient Conceptualization: The Case of “Public Goods” nothing in the economic logic would prevent him from getting as much out of a resource as possible – slash and burn rather than be interested in a sustainable yield– when other alternatives are open to him and he can conceive of such possibilities. After all, private exclusive property has not prevented corporate raiding and of preferring short term over long term gains.

It is precisely because property and ways of life interact in significant ways that both customary orders develop and are sustained, even though they are very vulnerable as soon as they clash with other conceptions of a way of life and with alternative notions of property embedded in it. In that case even governmental intervention might not be sufficient, as historical experience shows. For example, when the concern for the preservation of resources mounted during the last century, particularly the weak former colonial states insisted on their “public” rights. They tried to counteract external as well internal attempts (often pushed by former colonial settlers) of defining private rights by nationalizing land and water.

Under these circumstances, traditional communal rights that customarily limited access and use, were not accorded or lost their legal standing due to their link to the former colonial regime which had sometimes extended its protection to such “native” arrangements, or had left them untouched. The upshot was that through nationalization government became suddenly the sole owner. But since governments in these states were usually weak and ineffective, the outcome was that resources that once upon a time had been under a de facto common property regime maintained by the “locals”, became now in fact an open access regime. The government as “owner” did not, or could not exercise its actual property rights. Thus, quite different from the problem that governments might use their property in a corrupt fashion and create thereby clients with the help of public resources- one of Smith’s subtexts - the argument here is different. It draws attention to the fact that even with the best of intentions, the adoption of “best practices” when introduced from the outside might not lead to the desired outcome if it is not compatible with prevailing habits and clashes with local “ways of doing things”. Here local knowledge rather than allegedly universally applicable prescriptions are important.





One wished that many of the “aid” agencies, public or NGO-type and “best practice” freaks would learn from this.

These last remarks also cast considerable doubt on the proposition that the classical approach to public goods is sufficient for illuminating the complexities of the problems which are raised here. For one, the reliance on non-cooperative game theory eliminates by definition those factors that facilitate cooperation in the real world, such as communication, the making of promises, and the ability of identifying defectors and punishing them by shunning denying them access to social goods. Here the work of Elickson (1991) is particularly instructive. While, of course analogies between the behaviour in the international arena and domestic politics are always fraught with mistaken analogies, it is not so that all social constraints are missing among “persons of sovereign authority”, as the anarchy problematique suggests. Again details in the definition of the situation matter, and so do institutional rules.

Finally the existence of bottlenecks or cumulative asymmetric impacts crucially influence the provision public goods and call into question the classical assumption of summation and substitutability of each member’s contribution (each unit contributed to the public goods adds identically to the over-all level). As airport security shows, there is always a “weakest link” where security is lax and thus irrespective of the efforts of others, it is the “smallest contribution” (saving on staff and equipment) that determines the supply of the public good, i.e. the level of security for the public at large (here the analysis of Sandler, 2004 is illuminating). In the case of air pollution or acid rain the sulphur deposits on a given country are the sums of one’s own pollution and of that of other countries. One’s own pollution might be significant in checking some free rider tendencies in emission control regimes. But if prevailing wind patterns favour one country by depositing most of its externalities on others, cooperation is likely to be impaired. Thus the Waldsterben notice a few decades ago in Europe i.e. the devastation of pine forests in Germany and farther East was

Friedrich Kratochwil

significantly fuelled by the fact that the prevailing West winds blew away the noxious clouds from e.g.

France and West Germany and deposited it on the forests in the East.

In these respect the discussions in the last two three decades have considerably clarified the various issues and corrected the notion that there is “one size fits all” approach to the effective provision of “public goods”. This point will become even clearer when we turn from the goods in tangible space to those we find in virtual space.

Learning from Smith: On the Charges of the Sovereign, his Revenues, and the Knowledge Commons In discussing these issues let us begin with our initial puzzle, i.e. Adam Smith’s (1838) seemingly strange argument for the inclusion of education as a public charge while arguing vociferously for the toll solution in the case of turnpikes, although education at his time is virtually exclusively “private”, 3 and roads have been since Roman rimes “public”. Of course, certain aspects of education might show some “public goods” elements, such as listening to a lecture which is non-rivalrous (if we can neglect crowding), but anyone who does not mistake transmission of information for education will notice that “teaching” is a largely “private” good. Since paying particular attention to the needs of individual students educating him or her, is subject to intense “rivalry” in the consumption of time of the teacher.

Public roads on the other hand have since Roman times always been treated as res communes and have stood in a synergetic relationship to private property. Smith does not address these historical issues, but focuses on the “virtue” of making each user pay for his actual use and thus of the actual costs for maintaining the highway system in good repair. He also buttresses his argument by saying that in this way the sovereign who collects taxes allegedly for the upkeep of public roads is thus prevented from misusing it for other purposes.

The first argument addresses some issue of the supply problem familiar from the public goods debate. The second one is one about good government and keeping the sovereign “honest”. It seems to focus on an entirely different topic. On the surface these two examples do not let us see a common “public” element shared by both of them. But there are similarities that testify to the public character of both, albeit in an entirely different sense than the public goods debate would have us believe.

The dissemination of knowledge, like the distribution of tangible goods through exchanges, crucially depends on networks through which these activities can take place. Roads facilitate those exchanges as they are open to all, as they are res publicae (and not only res communes which denotes some common but exclusive property) but nevertheless, stand in a symbiotic relationship with private property. That is exactly why private land is worth more when access is guaranteed by public roads.

Only in this way goods produced in excess of own demand can be brought to the market and exchanged, and thus the full benefits from the division of labour can be realized. Thus antecedent to all arguments about exchange is not only the assignment of property rights, but also the existence of an infra-structure that lets us realize scale effects. In a way here the old saw applies: the more the merrier.

Thus despite the wear and tear inflicted by use and crowding effects, which we encounter in using this infra-structure, a quite different dimension of the “public” emerges here, one that should provide us with some food for thought. Restricting the notion of a “public” to supply questions, as seen from the angle of exclusionary property rights, without considering also its scale effects and their social functions, would thus entail a serious distortion.

Historically these networks had been created long before the victory of liberalism. Roman law represents here perhaps the oldest strand, as do the state-building efforts of territorial sovereigns and The “public” nature of the “public school” system consisted in being non-sectarian rather than being a public good supplied by the government.

Problems of Policy-Design based on Insufficient Conceptualization: The Case of “Public Goods” the rationales provided for “public projects” by mercantilist and advocates of natural monopolies. As both (Weber, 1921) and (Hirschman, 1981) have shown the bias of an economic “science” conceived in a naturalist mode is prone to forget the historical nature of its own foundations. But it also hides some important elements that come only in view when changing the perspective and when leaving the conceptualizations behind which inform the current debates. This is particularly true when we move from the realm of tangible to that of intangible goods and to the examination of the analogies that usually are made to get “a handle” on these problems.

It is here that an important similarity between education producing “public” knowledge and the above examples of public roads and of information networks comes to the fore. Both analogies emphasize the fact that “spreading the news” and having more people participate in the exchange of ideas serves us all. This is not only a tenet of democratic theory popularized by (Mill, 1974) but of all knowledge broadly conceived. While in the case of the information the “information super highway” information protocols still evoke this similarity to the traditional highways, places, and rivers that were in public trust. Science and art are also crucially dependent on the unimpeded use of data and cultural artefacts that remain in the public domain. “Originality” in both areas depends at least as much on the possibility of free combination and experimentation with existing forms and ideas, as on individual “labour” that allegedly has to be rewarded by granting exclusive property rights, far beyond the death of the creator.



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