Four Regimes, Not Two

In one line

A resource held by everybody in common is not the same thing as a resource held by nobody, and almost every wrong answer in this module comes from treating them as one.

In the wording a student can write in an exam: a common-pool resource can be owned and managed as government property, private property, community property, or owned by no one, which is Elinor Ostrom's own summary in her Nobel lecture of 8 December 2009. Those are four regimes, not two, and the difference between the last of them, open access, and the third, common or community property, is the difference between a resource with no rules and a resource with rules made by the people who use it.

The four regimes

Open access, or res nullius in the older vocabulary. Nobody owns it, nobody may be excluded, and nobody has a duty to conserve it. The high seas beyond national jurisdiction, the atmosphere, and a village grazing ground whose rules have collapsed are examples. The defining feature is that exclusion is impossible, and everything the tragedy of the commons predicts follows from that alone.

Common property, or community property. A defined group holds the resource, and can exclude everybody outside the group. Inside the group there are rules about who may take how much, when and from where. A village tank, a village forest under section 28 of the Indian Forest Act, a community forest resource recognised under the Forest Rights Act, and a fishing ground managed by a caste or a cooperative are examples.

Private property. An identified person or company holds it, may exclude everybody, and may sell it.

State property. The Government holds it, either as owner or as the trustee of the public. The mineral under the land, the wild animal that has been hunted, the forest constituted as a reserved forest, and the monument declared of national importance are all State property under Indian law, and each of the previous two modules explained the statute that makes it so.

Why the difference between the first two matters most

Because a policy answer turns on it. If the problem is open access, the answer is to create a rule-making authority: the State takes the resource, or a group is empowered to make and enforce rules. If the resource is already common property with working rules, taking it into State ownership destroys the rules that were protecting it, and the resource is then worse governed than before, because a distant department cannot monitor what a village could.

Indian law has done both. The Indian Forest Act, 1927, converted commonly used forest into State property and treated the user as a trespasser; and section 28 of the same Act, the Forest Rights Act, 2006, and PESA have each tried, at different dates, to put a rule-making power back into the village.