A Right, A Bundle, Or a Tree: Which Describes the Legal Nature of the Commons Best?

Author:Alexander Robert Houghton
Position:Is due to graduate from the University of Glasgow with First Class Joint-Honours degree in Law & Philosophy in June 2020
Pages:225-238
© 2020 Alexander Hoghton and Dublin University Law Society
A RIGHT, A BUNDLE, OR A TREE: WHICH
DESCRIBES THE LEGAL NATURE OF THE COMMONS
BEST?
ALEXANDER HOUGHTON*
Introduction
Increasing dissatisfaction with both private and state efforts at tackling a
variety of social issues has inspired a movement towards a more
mutualistic treatment of property through the idea of ‘the Commons’. To
take one prominent example, while many are deeply dissatisfied by rising
house prices and rents in the private housing market, efforts at solving
these issues via public means have often done little to stem this
dissatisfaction, owing to issues frequently endemic to social housing such
as long waiting-times and the lack of an opportunity for residents to
improve or acquire their homes.
1
The notion of ‘the Commons’ is held up as a panacea to these ills.
Though the concept of the commons has been employed by courts and
academic commentators to mean different things in different contexts, the
concept is understood in this piece in accordance with the definition given
by Marella.
2
Marella identifies three basic conceptual parts of the
commons: the common, the community, and commoning. The common is
the pool of resources accessible by a community of relevant individuals,
which governs and uses the resource in a dynamic, socially-informed way
called ‘commoning’. A clear example of the commons in action can be
found in the Cinema Palazzo case an Italian case decided by the Civil
Tribunal of Rome.
3
A group of students, artists, and local residents
occupied a derelict cinema to prevent it being rented to a casino and to
preserve the cultural history and activity associated with the cinema. With
* Alexander Houghton is due to graduate from the University of Glasgow with First Class
Joint-Honours degree in Law & Philosophy in June 2020. His interests include legal theory,
theories of distributive justice, and applying philosophical approaches to legal issues. The
author would like to thank Erika Foster, Lesley Affrossman and the TCLR editorial board
for their support throughout.
1
Liz Caincross, David Clapham, and Robina Goodlad, Housing Management, Consumers and
Citizens (Routledge 1996) 101-128.
2
Maria Marella, ‘The Commons as a Legal Concept’ (2017) 28 Law Critique 61, 66.
3
Tribunale di Roma, VII Sez. Civ. Sent., 8 February 2012.

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