The Comedy of the Commons: Custom, Commerce, and Inherently Public Property

Abstract

The right to exclude others has often been cited as the most important characteristic of private property. The power to exclude was a background feature in the stories explored in an earlier essay, "Property as Storytelling"; indeed, in those stories property supposedly makes everyone better off precisely because an owner can exclude others from his or her property. If classical economic theory normally preferred individual ownership of property to limitless open access, the traditional rules for public acquisiton of streets and roads systematically overlooked that preference. Indeed, the public's acquisition of roadways by long usage seems a particularly striking illustration of the imperviousness of practice to theory. Roadways seemed to enjoy a very strong presumption of "publicness" in nineteenth-century doctrine, but that presumption was trifling by comparison to the assumedly public nature of waterways and submerged lands. One way to solve the conundrum of "publicness" is easy, of course: simply equate the "public" with governmentally organized bodies.

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