Is It Time To Upend The Idea That Land Is Private Property?
I used to tell people that I was born in Northeastern Oregon. I wasn’t, actually. I was born in a hospital near Chicago. But at least once a year, for as long as I can remember, I would travel with my parents (and later on, my younger sister) to the Oregon ranch that my mother’s ancestors had homesteaded in the 1850s, and where they lived until 1974. This is where my mother grew up, close to where my grandfather and his family still live, and the place where my ancestors, the Oregon Trail’s earliest pioneers, stepped out of their wagon for the first time and came home to the valley, full of meadowlarks and fragrant soil and Douglas firs. “I count how God and nature do things,” my grandfather would say of our ancestors settling in the valley. “People have a home, and they know when they get there.”
If there is a greater thrill of belonging, of home, than turning the key in your first house, it’s land ownership. The farm my mother grew up on still smells of sweet soil. Its acres roll out under the dusty Oregon sky, harboring the valley’s native Indian paintbrush and bluebells. To belong to a place like that, to know that it is yours to care for and live on, is a powerful force. On your own land, you can set down the kind of roots we often speak of but don’t always treat seriously. “I’ve put down roots,” we say sadly when moving away from a place we’ve become attached to. Those roots are genuine, and they grow stronger the more deeply we experience that sense of belonging to a place.
For people like my ancestors and so many others who had traveled across the United States in search of a new home, the United States’ Donation Land Act of 1850 promised a sense of freedom that these days is almost unimaginable: the freedom to own the land that you worked on, the farm that sustained you, the riverbank where you stood to catch your dinner, the trees that shaded your house. You could lose it through bankruptcy or by giving it up — pioneer life was less the delightful, rich adventure depicted in Little House on the Prairie than a stark, lonely, and harsh life that drove many off the land within a few short years — but no one held the power to take it away from you. White Americans who had once lived under the yoke of tenancy rights in Europe and now benefitted from the opening of the West and the brutal, deeply unjust Indian Removal Act, would never again be subject to the capriciousness of a European sovereign or an absentee owner.
For me, like my ancestors, the Oregon landscape is part of who I am. It is beyond price. Love is the one thing about land that cannot be measured by use, real estate markets, or commodification. It makes possible a deep sense of home. Private property may be the birthplace of husbandry and sustainability as well as of self-sufficiency and self-determination, but ownership of land also allows us to invest in a community, including public lands and resources, with a sense of interdependency and mutual cooperation.
The farm my mother grew up on was not built solely by her family’s labor. It relied on water aquifers deep beneath the surface, the health of soil on valleys and mountains beyond their borders, and on hundreds — perhaps thousands — of years of care by the Umatilla tribe whose land it should have remained. These things comprised an ecosystem that was vital to their survival, and the same holds true today. These are our shared natural resources, or what was once known as “the commons.”
We live in and on the commons, even if we don’t recognize that this is the case. Every time we take a breath, we are drawing from the commons. Every time we walk down a road, we are using the commons. Every time we sit in the sunshine or shelter from the rain, listen to birdsong or shut our windows against the stench from a nearby oil refinery, we are engaging with the commons. But we have forgotten the critical role that the commons play in our existence. The commons make life possible. Beyond that, they make private property possible. When the commons become degraded or destroyed, use of private property become untenable. An Oregon rancher could own ten thousand acres and still be dependent upon the health of the commons. Neither a gated community nor high-rise apartments can close a human being off from the wider world that we all rely on.
We have been able to cause damage to the commons without acknowledging the consequences for far too long. But now, the press of a growing human population and the rise of industrialism make the question urgent: how will we own our shared resources? How can we protect them for the benefit of all? There are no more frontiers to run away to, and no more ignoring the widespread impact of how we treat our lands. For people like my ancestors in the 1850s, the driving question was that of gaining the freedom granted by private property. For us, it is not just a question of who owns the earth, but how.
The commons are what they sound like: land, waterways, forests, air. They are the natural resources of our planet that make life possible. Societies throughout history have continually relied on varying systems of commons usage that strove to distribute essential resources equitably, such as agricultural land, clean water, foraged food, and wood for fuel and shelter. As far back as 555 CE, the commons were written into Roman law, which clearly stated that certain resources belonged to everyone, and never to just a few: “By the law of nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea.”
The power of this tradition is difficult to explain but even more difficult to overstate, and its practice echoes throughout Western history. The Magna Carta, agreed to by King John of England in 1215 at the insistence of his barons, protected nobles from losing their lands at the whim of whomever they were serving. It also laid down the right to trial by one’s peers and is one of the documents widely cited as the foundation of modern democracy. Less well-known is the Charter of the Forest, issued two years later by the regent for Henry III after King John died in 1216. With the Charter, “management of common resources moves from the king’s arbitrary rule,” says Carolyn Harris, a Canadian scholar of the Magna Carta, “to the common good.” The Charter granted “subsistence rights,” the right that “[e]very free man may henceforth without being prosecuted make in his wood or in land has in the forest a mill, a preserve, a pond, a marl-pit, a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbor.” Included were permissions to graze animals and to gather the food necessary for survival.
These rights made their way overseas fully intact and informed the founding fathers of the United States as they developed their country’s constitution, placing greater emphasis on the rights of commoners to own enough land to live independently. (Unfortunately, that this land belonged to the native people who already lived there did not appear to factor much into their reasoning.) For Thomas Jefferson, according to law professor Eric T. Freyfogle in his 2003 book The Land We Share, “[t]he right of property chiefly had to do with a man’s ability to acquire land for subsistence living, at little or no cost: It was a right of opportunity, a right to gain land, not a right to hoard it or to resist public demands that owners act responsibly.”
The land itself — and not only the resources it contained — was part of the commons. Consider the implications of this thinking for our times: if access to the means for self-sustenance truly belonged to everyone, if both public resources and public land could not be taken away or sold, then how much power could a government, a corporation, or the wealthy have over human lives?
The concept of the commons is not limited to English and American history. In Russia, since at least the 1400s and continuing in various forms until the Bolshevik revolution of 1917, land was managed under the mir system, or through “joint responsibility,” which guaranteed sufficient land and resources for everyone to support themselves and their families. Parts of the land were occasionally divided and redistributed in order to accommodate changing family needs. Land belonged to the mir. It couldn’t be taken away or sold. In Ireland, from before the 7th century to the 17th, the Brehon laws served a similar purpose, with entire clans owning and redistributing land until English landlords came and took over the landscape. The Scottish historian Andro Linklater examines variations of these collective ownership systems in his 2013 book, Owning the Earth: the adat in Iban, crofting in Scotland, the Maori ways of use in New Zealand, peasant systems in India and China and in several Islamic states, and of course on the North American continent before European invasion and settlement.
While the preservation of the commons has not been completely forgotten, it has come quite close. The commons are essentially antithetical to both capitalism and to limitless private profit and have therefore been denigrated in many parts of the world for nearly two centuries. Yet, in other parts of the world, the commons are experiencing a revival. The Kyrgyz Republic once had a successful system of grazing that benefitted both herdsmen and the land. Shattered during Soviet times in favor of intensive production, the Republic is gradually reinstating the grazing commons after the passage of a Pasture Law in 2009 which replaced a system of private leases with public usage rights. In Fiji, villages have responded to pressures from overfishing and climate change by reviving an older system of temporary bans on fishing called tabu. An article in the science magazine Nautilus describes the formation of locally managed Marine Protected Areas that combine the ancient traditions of the commons and modern ecological understanding to adapt these communal fishing rights to the changing needs of the ecosystem.
One of the most influential critiques of the commons in the latter half of the 20th century comes from the ecologist Garrett Hardin. In 1968, Hardin published an essay, “The Tragedy of the Commons,” in which he argues against the commons system of ownership, and in particular for the limitation of reproduction given a planet of finite resources. For Hardin, a commons system of ownership that incorporates shared access will lead to disaster because individual selfishness will inevitably prevail over the needs of a community. Pursuit of private interest cannot lead to public gain.
Hardin’s argument fails in his assumption that a system of the commons must be anarchic. Picturing a world of the public commons, Hardin proceeds to claim that only disease, war, and plunder would keep the land within its healthy carrying capacity. Upon achieving social stability, each herdsman would continue to increase the size of his respective herd until the destruction of the land through overgrazing. What Hardin fails to recognize here is the necessity of certain restrictions for a commons system of ownership to function well for the benefit of all.
For the Kyrgyz grazing system and the Fijian Marine Protected Areas, opening the commons allows for affected communities to come to an agreement about limitations when it comes to natural resources. In the western United States, a system of grazing rights on public land allows small ranchers to survive by granting them access to land larger than they can afford to own privately, while at the same time preventing damage to the ecosystem through overgrazing. These practices have simply extended into the 21st century in the same way that the commons have functioned throughout history. Unrestricted usage has never been intended as part of the system.
Hardin, then, is correct in his claim that a commons system of waste and pollution is ultimately damaging. Indeed, this goes directly to the heart of where we have gone wrong with private property. “It did not matter how a lonely American frontiersman disposed of his waste,” he points out, but in the 21st century, the increasing pressures of a growing population and industrial pollution place the integrity of the commons at risk. The key to the commons — which should have been passed on to private property rights after they became widespread — can be seen in those ideals embodied by the 1217 Charter of the Forest: use for subsistence as a public right, to the extent that one’s neighbors remain unharmed. A commons system of ownership cannot and should not be a free-for-all; it functions well only when managed in everyone’s interests.
In the United States, the shift to allowing extensive industrial uses of land, despite potential adverse effects on local peoples, gained legal traction in the early 1800s, when court cases began to trickle out that held pursuit of economic activity as a common good. In a seismic upheaval of then-current perceptions of property rights, mining operations could now discharge their waste into waterways at the expense of homeowners and fishermen downstream, and railroad companies could act to acquire other landowners’ land, even when the owners did not wish to sell.
This recognition of private property as a public good increased globally throughout the 20th century with dizzying speed, leading to extensive loss of the public commons into the 21st century. In the past ten years alone, Chinese oil companies have received rights to drill into the last Ecuadorian rainforest, despite objections by the native peoples whose home it had been for millennia. Decisions made in England allow for drainage on farmland that puts downstream villages at risk of flooding, while a Cumbrian nuclear plant contaminates shellfish in Scotland hundreds of miles away. I could go on about the ways in which private property rights have destroyed the health, livelihoods, and homes of people living near and far, but the common thread here is their failure to recognize the necessity of preserving the integrity of the commons. Such thoughtless pursuit of economic gain will inevitably lead to the destruction of everything we need both for our own wellbeing and for any sense of deeper connection with the world around us.
The community benefit of land ownership has changed drastically since Roman times, since the Charter of the Forest, and since the Constitution of the United States was first drafted, and it will continue to do so. However, the perception of land as a commodity that is to be exploited rather than as part of the public commons is one that is still relatively recent. If we are to take environmental issues today seriously, legal and societal understanding must revive that principle of restriction on land ownership by the right of surrounding communities to enjoy their own property undisturbed and by a duty to leave the commons intact.
If we lose the rights of the commons, we may find that we lose private property itself as well. Private property and the public trust coexist; there is no private realm without that societal agreement that enforces rights and laws. Enjoyment of private property is not possible when the common resources that surround it are degraded. A well-ordered society needs both. Decades of pollution from mines, factories, automobiles, and industrial plants have barely altered modern perceptions of private property as public benefit. Only the prospect — and now the reality — of global climate change has begun to reframe the conversation in terms of basic rights to an undamaged commons.
This is not more than just a matter of addressing climate change per se. Property rights permeate every aspect of our lives. It is easy, or perhaps convenient, to forget that not so long ago, much of the Western world accepted the private ownership of human beings with few twinges of conscience. Troubling implications of our tendency towards private property abound, well beyond the question of land ownership: the rights of companies to privatize seeds, taking access to food out of the public realm. Battles over open-source computer programming and the privatization of libraries bring into question the issues of access to powers of information and creation. Rebecca Skloot’s book The Immortal Life of Henrietta Lacks (2010) brought to international attention the possibility that our very genes and tissues can be collected, tested, and sold as private property, a prospect that many people find appalling. It remains a long road from owning land to owning genetic information, but these instances beg the question of exactly who owns what.
The question that opened this essay — do we need to relinquish private property to solve our most pressing environmental problems? — was not a proposal. Instead, it was meant to prompt us all to think differently about the relationship between public need and private ownership, between private property rights and public rights to access and maintain the resources necessary for survival. Private property laws can grant us the ability to own land in such a way that can invest both our work and our affection in it. A place where we can say, like my grandfather does, that we have a home, and that we know when we get there. Those laws will only do so, though, if we keep the integrity of the commons intact. To say that we cannot eat money has become a cliché, but it is still true. Nor can we drink it, sleep on it, or breathe it. The question of land ownership, and of use, comes down to how much we will accept and how far we will go.
(The overhead photo depicts Ashland Oregon. Credit: Sean Bagshaw.)