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.