Generally, the Commons is that which is publicly-owned as opposed to privately-owned within human society. General customary law defines the Commons as public land managed by human communities, generally property that is collectively owned such as a public park, waterway, or easement.
What is Common Law?
While originating in its European form in England during the European Middle Ages, world common law systems now include the British Empire's former colonies: United States, Canada, Ireland, Cameroon, Ghana, South Africa, India, Pakistan, Singapore, Hong Kong, Australia, and New Zealand. In Commentaries on the Laws of England (1765-1769), Sir William Blackstone defined the common law as the general customary law within a jurisdiction as interpreted by "depositories of the laws--the living oracles" or judges under the rule of law. The historical communal need for the rule of law within the Commons can, however, be traced-back through surviving antiquity records.
As a system of the rule of law, common law is created by judges and chancellors (equity courts) when they apply precedents (previous court decisions) in new cases. Where no law exists, the judge/chancellor can create new common law. Appellate courts in common law systems may overturn prior common law or provide new interpretations to the common law to accommodate changing social values within its jurisdictional Commons. As a formal rule of law within global nations, common law origins are primarily found in the customs, common sense, mores, morals, and general sense of fairness in the resolution of disputes among people. Common law is used to resolve conflicts that arise under such system of laws as property, contract, personal injury, and family laws.
In the U.S., the criminal laws of each state has substantially been codified (like civil code) to conform the common laws of each state with the uniform Model Penal Code, a statutory text developed by the American Law Institute (ALI) in 1962 to conform a growing common law that had to be interpreted through case laws. It should be noted that the State of Louisiana is under a civil code system, similar to that in many European countries, such as those in the European Union. It is derived from the Napoleonic Code system which effectively limits judicial power to create new law, relying more on a reading of statutory text.
Over Consumption or Abuse of Natural Resources within the Commons and the Common Law
Frank Michelman asked “[i]f cooperation is possible, why do we need private property?” Some form of a mixed-use private and commons property system is now generally common among the majority of nations, making such a question obsolete in an increasingly globalized world. The human struggle in communal societies is now one of maintaining a proper balance (équilibre, balanced scale) between commons property and private property, and controlling over-consumption and abuse of the Commons.
"This is not a two-week story, but a hundred-year story," said Michael Dardar, historian with the United Houma Nation tribe (USA), in a 05/18/10 statement reported by the Charlotte Observer regarding the BP Global Macondo/Deepwater Horizon oil spill. "Coastal erosion, land loss and more vulnerability to hurricanes and flooding all trace back to this century of unchecked economic development."
An unjust damage to a shared resource constitutes an abuse of power from either a corruption, wrongful practice or custom, or a failed duty of care. Over-consumption of resources, historically, has created a significant disregard for externalities (defining waste or a lack of care which may create a need for imposing delict (Scots/civil law) or a duty of care under common law system). Other defined abuses within the Commons were established as illegalities with corresponding duties of care under the laws of the Commons, e.g., theft, murder, breaking of contracts or agreements without cause. See No Tragedy of the Commons by Susan J. Cox, 56-58.
In 17th Century England, a 1664 survey reports: “[b]ut how many beasts and sheep everie tenement may keep is uncertain and left as ye neighbors may agree among themselves.”
The core principles of well-managed resources can be found in the rule of law, created within the Commons and under common law systems (and civil law systems), ultimately representative of the will or shared values and interests of the people to sustain Common resources. We live in a time where those who have assumed responsibility of the duty of care over major Commons resources discover, as if for the first time, that global ecological systems are immensely interconnected. The rule of law requires imposition of the highest duty of care under the rule of law on the errors of such major Commons actors.
References:
- Cox, Susan J., “No Tragedy of the Commons,” 7 Envtl. Ethics 49 (1985).
- Michelman, Frank, “Ethics, Economics, and the Law of Property,” 24 Nomos 3 (1982).
General Disclaimer: This article is for informational purposes only and should not be used as a substitute for legal or tax advice.
Vanessa Cross - Vanessa Cross is a freelance writer who writes about international trade, business law and small business development issues.
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