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From Magic City Morning Star Julie Smithson
An article written earlier today elicited a query from a property owner in Colorado. The question: '"Is there a precedent where a court or agency has held that an owner of real property has lesser rights because it was referred to simply as "land" or "premise?"' My innate curiosity piqued, I began tracking the thread back to the sweater. I knew "land" to be only a part of "property," and "premises" to be a physical location, but how the three are currently used by government, aside from their federal definitions, was an as-yet-unexplored realm. Not so, now! Personalized Results 1 - 10 of about 778 English pages for "the importance of definitions" site:.gov with Safesearch on. Appendix G Miscellaneous State and Federal Laws and Related Information Excerpt from G-6: Maine Townsman, Confusion Over Municipal Estoppel "Maine Municipal Association Maine Townsman January 1998 LEGAL NOTES HOME OCCUPATIONS - RECENT COURT DECISION A recent Maine Supreme Court decision highlights the importance of definitions in the home occupation provisions of many zoning ordinances. In a 1972 case the Court concluded that a commercial lobster storage and sales business was not a home occupation under an ordinance that defined the term as "a business customarily conducted from the home." Town of Kittery v. Hoyt, 291 A.2d 512, 514 (Me. 1972). Similarly, in 1987 the Court held that an auto body shop and used car rental and sales business was not a home occupation under an ordinance requiring such businesses to be "operated from the home." Baker v. Town of Woolwich, 51 A.2d 64, 66 (Me. 1987). In August 1997, however, the Court held that a commercial dog kennel with 11 indoor-outdoor runs and boarding capacity for 15 dogs qualified under an ordinance permitting home occupations if "customarily conducted on residential property." Toussaint v. Town of Harpswell, 698 A.2d 1063, 1066. The Court found this definition broader than the ones in Hoyt and Baker and therefore more lenient. Municipalities may want to review their ordinance in light of Touissaint to be sure that their home occupation provisions accomplish what are intended to do. (By EPC) Note: The opinions printed in this Legal section are written with the intent to provide general guidance as to the treatment of issues or problems similar to those stated in the opinion. The reader is cautioned not to rely on the information contained therein as the sole basis for handling individual affairs but he/she should obtain further counsel and information in solving his own specific problems." (Page G-6-3/30 of 109 pages; 605.56 KB) http://tinyurl.com/2w6yyv Lest anyone think "property," "land," and "premises" to be interchangeable term ... There is much available to read on the topic: Personalized Results 1 - 10 of about 342,000 English pages for land property premises site:.gov with Safesearch on. Note that each of these results is from a .gov website, not a .com, .org, or other source. Missouri Revised Statutes, Chapter 82, Constitutional Charter Cities, Section 82.810 August 28, 2006 Owner may cross adjoining property to repair dangerous structure in St. Louis, when. 82.810. When any building or part thereof, tower, retaining wall, fence wall, smokestack or other similar structure, situated in a city having five hundred thousand inhabitants shall be found by the division of building and inspection, of such city, to be in a condition such as to endanger the lives of persons or likely to cause immediate injury to other property and when the owner, lessee, or both of such property shall have been notified in writing by the building commissioner or other legally authorized officer, upon whom is imposed the duty of condemning buildings, to remove, repair or otherwise secure such building, tower, retaining wall, fence wall, smokestack, or other similar structure and when such building cannot, by use of reasonable means, be removed, properly repaired or otherwise secured without having access to and upon the land, building or premises of an adjoining owner, the owner or lessee shall at least three days before the proposed work is to be commenced, notify the owner or lessee of such adjoining property, in writing, that in order to remove, repair or secure such building or structure it will be necessary for him to enter and temporarily occupy his or their premises, such notice shall state the character of the work to be done; the probable time required for its completion; the part of the land, building or premises proposed to be occupied; the use to be made thereof, together with a true copy of the notice served upon him by the building commissioner or other legally authorized official. If upon the receipt of such notice, the owner, lessee or both, of such adjoining premises shall refuse to permit the entrance and temporary occupancy of his or their premises, for said purposes, the person or persons desiring the entrance and occupancy thereof shall file a duly verified petition in the circuit court containing a statement of facts showing a compliance with the provisions of this section, together with an accurate description of the work necessary to be done; the time reasonably required to do it; the manner in which the premises are to be occupied, a description of the land, building and premises proposed to be occupied. If it shall be made to appear to the satisfaction of the court that an entrance and temporary occupancy of the premises of the adjoining landowner is necessary to protect the safety of persons or property, the court shall, upon the execution by the plaintiff or some responsible person for him of a bond with sufficient surety or sureties to such adjoining property owner, or lessee, in such sum as the court or judge shall deem sufficient to fully secure to such adjoining property owner, or lessee, the payment of any damages that may be occasioned by such entry and occupancy and pay all cost of such proceedings. The court shall at once cause a summons to be issued and served upon the owner, lessee or both, of such adjoining land, building or premises, requiring him or them to show cause, if any they have, at a designated time within five days, why he or they should not be required to permit such entrance and occupancy of the land, building or premises in question. If the adjoining property owner, or lessee or both, shall fail to show good cause why permission should not be granted, an injunction shall issue commanding the owner, lessee or both, of such adjoining premises to permit the entry and temporary occupancy for a definite length of time, to be therein specified, as the court may find to be necessary, by the exercise of reasonable diligence, to remove, repair or otherwise place the structure in question in a safe condition. The proceedings for the enforcement of this section, not herein specifically provided for, shall be in accordance with the provisions of chapter 526, RSMo, relating to injunctions. Another example: OLR Research Report: You asked about the rights of a trespasser, invitee, or licensee on private property. March 27, 2002 2002-R-0365 By Christopher Reinhart, Associate Attorney christopher.reinhart@cga.ct.gov or 860-240-8400 OLR - The Office of Legislative Research You asked about the rights of a trespasser, invitee, or licensee on private property. SUMMARY A possessor of land owes each person who enters his land a certain duty of care based on the person's status. The legal significance is that a possessor of land has the duty to an invitee to inspect the premises for hidden defects and to repair or erect safeguards, if necessary, to make the premises reasonably safe. He has no duty to inspect or to repair or erect safeguards for licensees. But he is liable if he knows of a condition, realizes it involves unreasonable risk, has reason to believe the licensee will not discover it, and he permits the licensee to enter or remain without warning or making the condition reasonably safe. Generally, an owner owes trespassers no duty of care because he has no reason to expect them to be on his property. Therefore, he does not have to warn or protect them from potentially harmful conditions on the property. However, an exception applies if a property owner knows, or has reason to anticipate, that children will trespass on his land. In this case, a special duty arises and the owner must take steps to protect children from any of the property's dangerous conditions. This can be done by taking reasonable steps to eliminate the condition or by otherwise keeping children away from it. Statutes also provide criminal penalties and fines for trespassing in certain circumstances. DUTY OWED TO TRESPASSER In Connecticut, the following rules apply to a possessor of land with respect to a trespasser. 1. He may not intentionally harm the trespasser or lay a trap for him. 2. The trespasser is entitled to due care after his presence is actually known. 3. There is no duty owed regarding the condition of the premises. 4. The possessor of land has no duty to trespassers if he is engaged in a dangerous activity until the person's presence is know. 5. The possessor of land has no duty to warn trespassers of dangerous hidden conditions (Conn. Law of Torts, § 47). Duty Owed to Trespassing Children Connecticut's appellate courts have adopted the Restatement (Second) of Torts rule regarding the duty of a property owner to trespassing children (Duggan v. Esposito, 178 Conn. 156 (1979), Neal v. Shiels, Inc. , 166 Conn. 3 (1974), Greene v. DiFazio, 148 Conn. 419 (1961), Wolfe v. Rehbein, 123 Conn. 110 (1937), Yeske v. Avon Old Farms School, Inc. , 1 Conn. App. 195 (1984)). Under this rule, if an owner knows or has reason to know that children will be on his property, he has the duty to protect them from injury by either fixing the harmful condition or ensuring that the children will not have access to that part of the property. The rule states that a possessor of land is liable for harm to trespassing children caused by an artificial condition on the land if (1) the possessor knows or has reason to know that children are likely to trespass in that place, (2) the condition is one the possessor knows or has reason to know and should realize will involve an unreasonable risk of death or serious bodily harm to children, (3) the children because of their youth do not discover the condition or realize the risk, (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved, and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children (Restatement (Second), 2 Torts 339). Trespass Crimes and Infractions A person commits first degree criminal trespass when (1) he enters or remains in a building or any other premises after the owner or an authorized person personally communicates an order to leave or not enter and (2) he knows that he is not licensed or privileged to be there. This crime also applies to entering or remaining at a place in violation of a retraining or protective order. This is a class A misdemeanor punishable by up to one year in prison, a fine of up to $ 2,000, or both (CGS § 53a-107). A person commits second degree criminal trespass when he enters or remains in a building knowing that he is not licensed or privileged to do so. This is a class B misdemeanor punishable by up to six months in prison, a fine of up to $ 1,000, or both (CGS § 53a-108). A person commits third degree criminal trespass when, knowing he is not licensed or privileged to do so, he enters or remains in any premises for hunting, trapping, or fishing or enters or remains in premises that are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders or that are fenced or enclosed to exclude intruders. This also applies to state lands near state institutions. This is a class C misdemeanor punishable by up to three months in prison, a fine of up to $ 500, or both (CGS § 53a-109). It is a defense to these crimes if (1) the building was abandoned, (2) the premises at the time of entry were open to the public and the person complied with all lawful conditions on access and remaining on the premises, or (3) the person reasonably believed that the owner (or someone else with the power to do so) would have or did license him to enter or remain on the premises (CGS § 53a-110). A person commits simple trespass if, knowing he is not licensed or privileged to do so, he enters premises without intent to harm any property. This is an infraction punishable by a fine, currently $ 77 plus costs and fees if paid by mail (CGS § 53a-110a). A separate infraction covers trespass on railroad property when a person enters or remains on the property without lawful authority or consent of the railroad carrier. This is currently a $ 121 fine plus costs and fees if paid by mail (CGS § 53a-110d). DUTY OWED TO A LICENSEE A licensee is someone privileged to enter or remain on land because the possessor consents to it, either by invitation or permission (Salaman v. Waterbury, 246 Conn. 298 (1998)). In Connecticut, the following rules apply to a possessor of land with respect to licensees. 1. He may not intentionally harm the licensee or lay a trap for him. 2. The licensee is entitled to due care after his presence is actually or constructively known. 3. There is no liability owed to the licensee for the obvious condition of the premises but conditions that may be obvious in the daytime may become concealed at night. 4. The possessor of land has a duty to watch out for licensees or tolerated intruders if he is engaged in a dangerous activity. 5. The possessor of land must warn licensees and tolerated intruders of dangerous hidden hazards he actually knows about (Conn. Law of Torts, § 48). An owner or occupier of land is subject to liability to a licensee for injuries sustained from a natural or artificial condition if he (1) knows of the condition, (2) realizes it involves an unreasonable risk, (3) has reason to believe the licensee will not discover the condition or risk, and (4) permits the licensee to enter or remain on the premises without exercising reasonable care to make the condition reasonably safe or warn the licensee of the condition and the risk (Laube v. Stevenson, 137 Conn. 469 (1951)). Certain statutes grant immunity, such as when land is made available for recreational use (see CGS § 52-557f et seq.). DUTY OWED TO INVITEES Invitees are generally people who come on land for a business purpose to the benefit of the land possessor or to the mutual benefit of the visitor and land possessor. The Connecticut Supreme Court described three types of invitees. 1. A public invitee is someone invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. 2. A business invitee is someone invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land. 3. A social invitee is someone who is owed the same standard of care as a business invitee (CGS § 52-557a). The distinction between an invitee and a licensee depends largely on whether the visitor received an invitation, as opposed to permission, to enter or remain on the land. Although an invitation does not establish the status of an invitee, it is essential to it (Restatement (Second), 2 Torts § 332 Comment B, Corcoran v. Jacovino, 161 Conn. 462, (1971)). The possessor of land owes an invitee all the duties that he owes to a licensee and also: (1) the duty to inspect the premises and erect safeguards, if necessary, to render the premises reasonably safe and (2) he has liability for defects that would ordinarily be discoverable by a reasonable inspection and he has the duty to give a proper warning. But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care (Conn. Law of Torts, § 49). Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or constructive, of the specific defective condition that caused the injury, and that the condition existed for a sufficient length of time to allow the possessor, in the exercise of reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could not have been discovered or anticipated (Conn. Law of Torts, § 49). CR: eh
United States Department of Health And Human Services: In the Matter of: Stakeholders Meeting with the Edmonds Institute March 12, 2004 Training Room 1 4700 River Road Riverdale, Maryland Heritage Reporting Corporation Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 202-628-4888 The hearing in the above-entitled matter was convened, pursuant to Notice, at 1:10 p.m. BEFORE: JOHN TURNER, Director of Policy Coordination APPEARANCES: On Behalf of USDA/APHIS/BRS: Chris Zakarka, Lee Handley, Craig Roseland, Michael Wach On Behalf of The Edmonds Institute: (Via Phone) Beth Burrows, President and Director (1:10 p.m.) MR. TURNER: I assume you're alone. There's no other people on the conference call? MS. BURROWS: That's correct. MR. TURNER: That's fine. Again, I'm John Turner. Cindy Smith was going to join us. She's our Deputy Administrator. Unfortunately, she went home ill. We do have several other people here and I can [word/words missing] it's an impressive crowd, since you're not here to see them. You'll have to believe me. MS. BURROWS: Could I be advised of who is there? MR. TURNER: Sure. Again, I'm John Turner. My title is Director of Policy Coordination here in BRS, Biotech Regulatory Services. MR. WACH: Beth, my name is Michael Wach and I'm an environmental protection specialist again with BRS. MR. HANDLEY: I'm Lee Handley. I'm a risk assessor with BRS. MS. ZAKARKA: Christine Zakarka with Policy Program Development. MR. ROSELAND: Craig Roseland and I'm with the Policy Division. MR. TURNER: Some of those may have been hard to hear. MS. BURROWS: I heard I think five people. MR. TURNER: Yes, that's it. MS. BURROWS: Great. Okay. You're all in one way or another associated with USDA? MR. TURNER: We're all at USDA. We're all in APHIS and we're all in Biotechnology Regulatory Services, except Chris Zakarka, who is with Program and Policy Development, PPD. MS. BURROWS: Okay. MR. TURNER: She's helping us with this process of the EIS. MS. BURROWS: Great. MR. TURNER: Here's how we can start. I'm going to give some opening remarks and background and then I'll turn it over to you. You can give a statement or we can just have a give and take of discussions. However you want to proceed after that. MS. BURROWS: Okay. MR. TURNER: Welcome to our stakeholder discussion series on our upcoming environmental impact statement and revised plant biotech regulation. We want to thank you for taking time from your busy schedule to participate in this meeting and sharing your thoughts with us. The purpose of these briefings is to: One, share information regarding our plans to develop an EIS and amend our plant biotech regulations and two, gather a diverse, informative input which will support thoughtful and effective decision making on our part and the development of our new regulations. Excerpt from Page 19 (of 32): In looking at the notification that was put in the Federal Register, I notice the importance of definitions of all words. Almost all adjectives. I know this is extremely hard to do and in some ways the most contentious things to do. There were word usages like minor and unresolved. I didn't know what was meant by them. I could guess, but they were only guesses. U.S. Dept Health And Human Services (33 pages; 71.96 KB)
Land Reform / Reforme Agraire / Reforma Agraria 2002/2 FAO Corporate Document Repository FAO - The Food and Agriculture Organization of the United Nations www.fao.org POPIN - U.N. Population Information Network Title: Land Reform :LAND SETTLEMENT AND COOPERATIVES... forme agraire:COLONISATION ET COOP?RATIVES AGRICOLES... reforma agraria:COLONIZACION Y COOPERATIVAS... Originated By Social And Ecomomic Department Les regimes de propriete collective: origine et implications du debat theorique Des systemes de gestion commune des ressources existent dans differents pays sous differentes formes, et ils varient autant que les types de ressources qui peuvent etre gerees en commun, d'oe l'importance des definitions. Ces systemes sont caracterises par le droit d'acces, qui est communautaire, et l'exploitation des ressources memes, qui est individuelle, mais avec un important contrele collectif base sur la reciprocite des devoirs et des droits. Les conditions sont donc bien differentes de celles de libre acces aux ressources sans contrele social oe la surexploitation et des situations connues comme la "tragedie des terres communales" tendraient e prevaloir. Les institutions qui reglementent les actions individuelles et de groupe, ainsi que les mecanismes de cooperation et d'action collective, sont e la base du fonctionnement des regimes communaux. Mais il est aussi important de rappeler le rele des institutions externes telles que celles de l'etat qui assurent la coordination entres les systemes de gestion communale et le reste de la societe. Las tierras comunales y sus regomenes de gestion: antecedentes e implicaciones del debate teorico Los sistemas de gestion comon de los recursos existen en muchos paoses bajo formas diferentes, y son tan variados como los tipos de recursos que pueden ser objeto de una gestion comon; de aho, pues, la importancia de las definiciones. La caracterostica de estos sistemas es que el derecho de acceso es comon mientras que el uso de los recursos es individual, pero va acompaoado de un control colectivo en el que los miembros comparten derechos y deberes recoprocos. Por consiguiente, la situacion no es la misma que en un sistema de libre acceso, en el que se impondroa la sobreexplotacion y la consiguiente "tragedia de las tierras comunales". Las instituciones que regulan la accion de estos grupos son indispensables para explicar el funcionamiento de los regomenes comunales. No menos importante es comprender los mecanismos de cooperacion y accion colectiva y el papel de coordinacion de instituciones externas, como las del Estado, que permite la interaccion entre los sistemas de gestion comunal y el resto de la sociedad. Common property regimes: origins and implications of the theoretical debate N. Forni [Nadia Forni nadia.forni@lamborghini.com] This article is based on materials collected by Nadia Forni for a Ph.D. thesis (1998, unpublished). Communal systems of resource management exist in many countries under different forms that are as varied as the types of resources that can be held in common, hence the importance of definitions. These systems are characterized by communal rights of access and individual use of resources, accompanied by group control in which members share reciprocal rights and duties. The situation is thus different from that of open access, where overexploitation and "tragedy of the commons" outcomes would prevail. Institutions that regulate the actions of groups are essential in explaining the functioning of communal regimes. Just as essential is an understanding of mechanisms for cooperation and collective action and the role of external institutions, such as those vested in the state in performing coordination functions that allow interaction between communal systems of management and society. INTRODUCTION AND DEFINITIONS Communal systems of resource management exist in many countries under different forms. It is therefore important to highlight their characteristics, strengths and weaknesses. Objections against these systems are sometimes raised in the name of modernization concepts, in which privatization of production resources and the primacy of individual over collective action are central. Clarification of the issues involved may contribute to broader policy-relevant debate. This article introduces the theoretical debate about common property regimes (CPRs) and their suitability for production and socio-economic development, giving examples of their relevance in both developed and developing countries. After defining CPRs, the article goes on to analyse the theoretical background of CPR theories. The importance of institutions for their operation is stressed, and the debate on collective action, social capital and the coordinating role of the state is introduced. Definitions The regulation and management of common property are as varied as the types of resources that can be, and are, held in common, whether on a large or a small scale, ranging from sea fisheries to irrigation systems, forests, grazing lands and farmland. Those who consider CPRs inefficient, whether for social, ecological or economic reasons, are in favour of their being privatized or brought under direct state control. Those who, on the contrary, consider them viable, put the major emphasis on the role of local institutions in making CPRs economically and ecologically sustainable. CPRs can be defined as those resource management systems in which resources or facilities are subject to individual use but not to individual possession or disposal, where access is controlled and the total rate of consumption varies according to the number of users and the type of use (Oakerson in NRC, 1986). Resources managed under CPRs are different from those managed as private goods, for which access is controlled and individual use and possession are exclusive. They differ also from public goods, such as sunlight or street lamps, for which access is open to all: such goods are collectively consumed and the rate of consumption is independent of the number of consumers. Definitions have a special role in common property theory, since the term has often been used with different connotations. Moorehead (1991) underlines how a common good can be located anywhere in the continuum between private goods and purely public goods, according to levels of shared, and excludability from, use. Purely private goods are fully exclusive in that the consumption by one individual excludes the ability of another to consume, and this exclusion is legitimized by society through individual property rights. At the other extreme, the consumption of public goods by one individual does not prevent the ability of others to benefit, since the supply of such goods is not in any way limited by individual access. Access to goods such as sunlight is uncontrollable and cannot become legitimized by society as private property. Common goods, on the other hand, share elements of both private and public goods. They are defined by their partial subtractability and partial excludability, which need to be legitimized by society in order to be defined as common property. This overall term comprises a continuum of different meanings. A working example of major categories is proposed by Moorehead (1991) as follows: global international commons, e.g. the oceans, which are legitimized internationally across a range that goes from open access to global common property where the special laws of the sea apply; state common property, e.g. rivers or national parks, where national legislation defines the extent to which the resources can be used by specified groups under certain conditions; (community) common property resources, e.g. grazing lands, which are managed and customarily owned by a community according to sets of rules and rights including individual usufruct [] but not individual disposal. Several authors emphasize customary management (Berkes, 1989; Jodha, 1991), and maintain that resources can be considered as common property irrespective of whether ownership is legally bestowed on the common property resource users, the state or another public body, provided the resources are actually managed according to common property norms. Village ponds, forests, rivers and rivulets, for instance, often fall under formal legal ownership of the state but their de facto management rests with the community. This implies the existence of reciprocal obligations and mutual help, methods for conflict resolution and modes of production involving several households in a work-team and aiming, principally, at self-sufficiency. Other authors, in defining CPRs as resource management institutions, focus on the functions performed rather than the legal title (Stevenson, 1991). CPR management systems are defined as those where a clearly defined group of competing users have access to a jointly controlled, clearly defined resource according to implicit and explicit rules governing rights and duties. It has also been pointed out (Berkes, 1989) that CPRs are not evolutionary relics: they exist because they produce certain advantages. They are to be preferred to open access or private property regimes in cases where the resource could be split into individually controlled units but the cost of controlling sole ownership would be prohibitive (Stevenson, 1991). According to other scholars, however, CPRs are viable only in traditional societies (Quiggin, 1993). They are often said to be incompatible with development and economic growth because of their inability to adapt to new technology and because the shift from subsistence to market-oriented production leads to increasing income and other inequalities which, in turn, decrease the commonality of objectives among users of the commons. This latter point is partially supported, in the case of Asia, by Jodha (1991) who signals the threats to traditional management systems from commercialization and ensuing pauperization. However, the same author in another study (Jodha 1992) states that, in a sample of Indian villages, as much as 14 to 23 percent of income was derived from common property resource utilization, and the figures rise to 84 to 100 percent in the case of the poor. The economic importance of CPRs would therefore appear to remain very high, even though it is threatened. The importance of equity, alongside efficiency, is also at the centre of Oakerson's framework of analysis (Oakerson in NRC, 1986). In this, the commons are defined as economic resources subject to individual use, but not individual possession, and characterized by joint consumption, rights of exclusion and indivisibility with reciprocity and mutual expectation of positive performance. Oakerson's framework pays particular attention to the problem of applying efficiency or optimality principles where there are significant yearly fluctuations of production, as is often the case in CPRs, and where short-term efficiency may undermine long-term sustainability. Having reviewed some of the characteristics of CPRs, the following working definition may be proposed: CPRs are management systems where resources are accessible to a group of rights holders who have the power to alienate the product of the resource but not the resource itself. Common property can be legally owned by the state, a community or an organization. Within this legal framework, a group of traditional rights holders manages the resource exclusively to preserve and enhance its long-term productive capacity for the benefit of all current and future members of the group. All members share reciprocal rights and duties that can only be amended by collectively binding decisions. In view of the importance of institutions and their functions in common property resource management it is also useful to clarify the meaning of this term. Institutions can be defined in a very broad sense, following North (1990), as the rules that underpin the functioning of society. In this sense a CPR, for instance, is an institution just as much as the state is, although at a different level. Both act through organizations. For instance, while the state as an institution intervenes in pastoral production through organizations such as a regional administration, CPRs intervene through organizations such as an association of herders. North also stresses that institutions change incrementally over a very long period so that change is hardly ever completely discontinuous, even if ostensibly brought about by a revolution. In a society, it is institutions that determine opportunities, as distinct from organizations which are created, with formal structures, to take advantage of the opportunities and which then, in turn, may alter the institutions themselves. However, the terms institution and organization often overlap. Following Uphoff (FAO, 1997b), institutions can be considered as norms of behaviour that last over time and pursue collective purposes, while organizations refer to structures within which roles are performed. THEORETICAL BACKGROUND OF COMMON PROPERTY THEORIES Early theories The term common property has tended to be used with very different connotations by economists, on the one hand, and historians and anthropologists, on the other. The semantics of the term has therefore had an important role in disagreements among scholars. Hardin's theory (Hardin, 1968) of the "tragedy of the commons" has influenced much of the debate since the late 1960s with a rather picturesque theory of the commons that attracted wide consensus in political circles in various parts of the world. The theory uses the commons as synonymous with open access and common property almost as synonymous with no property. According to Hardin, when there are many users with unlimited access to a limited resource, overexploitation is inevitable. Abuse occurs because each individual user will look for private gain while spreading the costs among all users. Hardin uses pastoral commons as an example to represent all other resources with multiple users, and overgrazed pastures as a metaphor for an overpopulated world. On this pasture open to all, livestock are individually owned. Each herder reaps the full benefit from his animals, but pays only part of the delayed cost, which is shared by all herders if the resource is overused and its productivity decreases. The individual herder will, therefore, be following a rational course of action if he/she increases his/her herd without limits, but the sum of individual herders will produce an irrational joint result that "tragically" leads to depleting the joint resource. Hardin's model is often explained through a prisoners' dilemma game theory argument (Ostrom, 1990; Wade, 1988; Stevenson, 1991), in which two prisoners have jointly committed a crime. They know that if both deny committing the crime, both will receive a light sentence; if both confess, both will receive a medium sentence; if one confesses and the other does not, the first will be set free while the one who denies will get a heavy sentence. Forced in isolation and with no knowledge of each other's intentions, they each have to choose between denying the crime, i.e. implicitly cooperating to get a jointly minimized penalty, or confessing, i.e. defecting from the common interest solution but opening the possibility for one to be set free at the expense of the other. The outcome suggested by game theory is that, in the absence of trust or any verifiable commitment to each other, both confess in order to maximize their individual chances, irrespective of what they know would be the best strategy for both of them jointly. This situation is translated into one in which herders graze their individual animals in a commons that can support a limited number of animals. The prisoners' dilemma arises from the possibility for the herders to cooperate, i.e. share equally the available grazing potential, or defect, i.e. each graze as many animals as possible. It is contended that the dominant strategy will be to defect in order to try to obtain the maximum individual short-term benefit, as unilateral restraint will not stop others from overusing the common good. The only way to stop the destruction of the commons would be either complete privatization of the common good, thus internalizing costs, or state control through coercion. This simple game can be replayed with a series of variants, adding other moves that involve the intervention of central authorities with power to sanction defectors or introducing the notion of predictability of each herder's action as seen by other herders/players. However, when the prisoners' dilemma is repeated many times, with the players kept in uncertainty as to the number of times the game will actually be iterated, expectations or tacit communication increase, which improves the chances of cooperation (Hardin, 1982). As a consequence, the players may act rationally by selecting a cooperative option or contingent strategies in each game based on regularities of behaviour. The difference in their attitudes in a single game compared with iterated games is defined by Barry (1965; quoted in Hardin, 1982: 186) as the difference between altruism and trust: in the single game, it would require altruism rather than rational choice to cooperate; in the iterated games, it is a matter of trust, i.e. expectation of a certain behaviour based on past experience and awareness of the opportunity of sanction against defectors. Another variant of the prisoners' dilemma theory is Olson's logic of collective action (Olson, 1971), which emphasizes the need to persuade individuals to pursue group interests through "selective inducements" which include sanctions and rewards. Defection from a collaborative course of action is to be expected, particularly in the case of large groups whose members do not share many common goals. Olson particularly stresses the importance of group size in preventing defection from collective action and the potential role in this of rural communities (Olson's foreword to Baland and Platteau, 1996). In large groups, players can defect profitably; what defeats group action is a lack of reward for collectively oriented action, the difficulty of interaction within large constituencies and the ever-increasing organizational costs. For these reasons, very large groups will not be able to benefit from collective goods unless there is coercion or separate outside incentives (Olson, 1971: 48). Negotiation among common property resource users and the assurance problem Most current theorists (e.g. Runge, 1986) cast doubts on the inevitability of the tragedy of the commons, unless privatization takes place, on the grounds that Hardin's theory implies that each range user is ignorant of other users' actions. It is contended that this is implausible in view of the nature of herder society, which makes free-riding possible only in the short term. A fallacy of the tragedy of the commons and the related prisoners' dilemma as applied to common property use is said to lie in the assumption that, not only is each player unaware of other players' decisions, but also no negotiation is possible between them. It has been argued (Wade, 1987) that, while this may apply to ocean fisheries or air pollution, it is unlikely to apply when there is recurrence of action and players can observe each other. Wade (1987), reflecting particularly on the claimed need for coercion, maintains that people are able to negotiate rules among themselves in view of the net collective benefit from joint action. He highlights some features of successful organization: clearly defined boundaries for the resources; the higher the cost of the technology used, the greater the chances of success; an overlap between the location of the common property and members' residence; necessity to survival; a small users' group with mutual obligations and rules against defectors; and support to local decision-makers. In this type of context, free-riding is a possibility but not an imperative. People will cooperate if others do. The problem is then mainly one of assurance. Individuals' choices are not independent of their expectations of other individuals' choices and the assurance theory is based on their expected interdependence. A reduction of risk is thus the basic reason for adhering to village corporate groups which exist to establish and protect joint access to common resources (Runge, 1981). The major issues affecting the actual functioning of these corporate groups lie in the rules they have given themselves to regulate individuals' conduct and their ability to monitor resource use, resolve conflicts, change rules and, if necessary, accommodate new technology. Functions of reciprocity among groups and communities are documented in many countries (Bedrani, 1991; Ruiz Perez and Valero Saez, 1990). In Spain, for centuries the rights of different transhumant groups were coordinated among themselves and vis-?-vis peasant farmers by the Mesta, an association of transhumant livestock raisers which obtained legal status in 1273 (Klein, 1920). Difficulties in institutional arrangements and the monitoring of effectiveness tend, however, to increase considerably as group size and heterogeneity increase (Kanbur, 1992). This problem was overcome by the Dogana system which functioned effectively in southern Italy for several centuries through its in-depth organization of all the activities of CPR rights holders when in transhumance outside their home areas, thus providing institutional support (Marino, 1988). The shaping of institutions Institutions that regulate the action of groups of rights holders in the management of the commons are essential in explaining the functioning of communal regimes. The development of such institutions and their efficiency in monitoring resource use is at the centre of the institutionalist school of thought which shifted the emphasis in the theory of common property from individual constraints to institutional and social ones (Ostrom, 1990). The institutionalists define resource systems in terms of stock, e.g. a grazing area or an irrigation canal which may produce a flow in terms of units of fodder or of water for irrigation. "Appropriators" of the system are herders or irrigators, who jointly use the resource system in order to obtain individual resource units. The efficiency of CPRs depends heavily on the norms that appropriators give themselves and on their ability to monitor those norms, as well as on the opportunistic behaviour that each appropriator expects from the others. Success or failure, therefore, mainly depend on the process of organization as well as its local acceptability and ease of monitoring. The institutionalists emphasize the following (Ostrom, 1990): the "self-transforming nature of institutional change"; the importance of the external political regime and the way that it can affect the collective provision of rules (CPRs do not exist in isolation); transaction costs and their minimization through voluntary CPR management. New institutional economists (NIEs) maintain that institutions will tend to evolve into forms that reduce transaction costs through efficiency. North (1990) however cautioned against this optimism and maintained that efficiency is not all and that power relations within organizations may be just as important. Granovetter (in Granovetter and Svedberg, 1992) carries the argument further and maintains that action does not depend on individual motivation alone because it is "embedded" in social action. Economic action is socially motivated but is part of a set of interpersonal relations in which networks ensure the relations between individuals and between groups. Granovetter also disputes the NIEs' conviction that the importance of social relations decreases as societies move from being pre-market to being market, claiming instead that, although different types of social relations acquire importance, they are just as ingrained as the original ones. The theory of networks is also sometimes used by new institutional economics and was extended by Levi (1988) who defines it as a network of contracts among those who govern, those who are governed and agents between both parties. The level to which agents intervene and contract enforcement costs depends, according to North (1990), on the interpenetration of institutions. For instance, state intervention to protect merchants in mediaeval Europe was facilitated by merchants' institutions, e.g. their codes of conduct limited the participants working within the network and contained transaction costs for both sides. Institutions and mobile systems of production The shaping of institutions and the comparative advantage of communal or private systems acquire particular relevance when dealing with mobile systems of production such as pastoral ones. Attention should therefore be focused on the importance of seasonality in pastoral production, mobility as a consequent strategy, whether this is facilitated by communal use of resources, and the institutions that regulate it. Collective control of pasture as a way of assuring herd mobility is as widespread in developed countries as it is in Africa and Asia, as shown by the large tracts of land in the United States that are leased for seasonal grazing to either individuals or groups using hired shepherds. The more variable the weather and the less varied the ecology, the more territory is required to manage the stock safely (Gilles and Gefu in Galaty and Johnson, 1990). In the case of livestock production, it is contended that, whenever productivity is low and rainfall is spatially variable, it is better to carry out production over large areas, whether they are private ranches or communal areas (Gilles and Jamtgaard in Mendes, 1988). For instance, Artz and O'Rourke (in NRC, 1986) show in the case of Morocco that, in areas of erratic rainfall, forage becomes almost a fugitive resource that it is impractical to harvest from a small fixed plot. Overgrazing is frequently attributed as a consequence of official restrictions on mobility. This was underlined, inter alia, in Peru and Bolivia (Browman, 1987), where traditional indigenous practices were disrupted by obstacles to mobility and consequent overgrazing. In addition, the economic significance of herding, which included trading during transhumance and transporting of farmers' produce, was greatly reduced. Evidence from Morocco (Mendes, 1988) seems to indicate that forage land is likely to be privatized when the potential value of the land is high enough to encourage investment for increases in productivity, whereas common property management is suitable in cases where investment is risky and the transaction costs of policing the area are more efficiently shared among larger user groups. Bromley (in NRC, 1986) concludes that there is no valid way of generalizing the relation between resource degradation and property rights regimes. In fact, a multiplicity of tenure systems tends to exist in each locality (Mendes, 1988; Netting, 1981). Tenure and mode of production may even change seasonally within the same area. In the case of Bangladesh, for instance, rigid private property borders are removed during the floods: the whole floodplain becomes a source of common property resources and provides a fish capture ground (Sadeque, 1992). THE DEBATE ON COORDINATION AND COLLECTIVE ACTION The essence of cooperation and self-enforcement Theories of cooperation and collective action provide some of the most common answers to the free-rider problem in common property resource systems that are resisting privatization. In fact, individual choice can also be satisfied by cooperation, but to achieve a benefit there is a need to combine individual efforts in an organized way. The essence of cooperation and self-enforcement is based on knowledge of the past and prediction of future possibilities by actors who expect to meet again and therefore have a stake in their own future interaction. Cooperation can then evolve even in situations where defection prevails. Friendship is not a prerequisite to the emergence of cooperation based on reciprocity (Axelrod, 1984). Successful cooperation and collective action depend on the nature and size of the groups and institutions as well as on the type of organization that ensures enforcement of the group's own rules. Problems may also arise from the divisibility of benefits, particularly where the latter go to the community as a whole and not just to those who have contributed, as may be the case with environmental improvement (Curtis, 1991). Cooperation and self-enforcement are discussed, with substantial empirical evidence, by the new institutionalists, who see a complete absence of "hierarchical governance" as an essential precondition (Keohane and Ostrom, 1994). They maintain that only local self-enforcement through "locally centralized" systems can ensure exclusion and enforcement of decisions through village assemblies that establish and monitor rules and function in a state-like fashion at the local level (Snidal in Keohane and Ostrom, 1994). This would be the case of Alpine communities such as those described by Netting (1981) in the case of Switzerland. The importance of information Cooperative solutions will be fully realized only if there is perfect information. Although most people would prefer not to work, in a cooperative game everybody expects others to do so and so each individual contributes with what Elster (1989) calls conditional altruism. Transparency of the rules of the game encourages collective action, but perfect information would seem to be best ensured if the group is very small or if an outside actor, such as the state, intervenes. According to Olson (1971), outside small groups, only the presence of "selective incentives" such as rewards for contribution to group effort and coercion exercised by an outside agent actually allow effective collective action. An important issue in the debate on collective action is whether and how an asymmetric group of rights holders could be a hindrance to the good operation of CPRs or any other type of cooperating group. Knight (1992) underlines that groups are composed of individuals and that perfect equality is a myth. There are power structures within them, as within the rest of society. Therefore they should not be idealized, and power asymmetries should be taken into consideration to assess both the way rules are made and how they are implemented. It is usually assumed that homogeneous membership is a positive condition for a successful CPR, but that asymmetric preferences and endowments are not inconsistent with an intention to cooperate, with different actors having different reasons to support a certain type of collective action (cf. Martin in Keohane and Ostrom, 1994). However, there is usually agreement that asymmetries in information may hinder cooperation. Within CPRs, there is a need to analyse whether CPR rights holders with different power positions can successfully cooperate, provided that a comparable level of information is available to all. The way such information is used for the purpose of collective action depends, however, on the complex system of social organization that underpins the functioning of local institutions and which is increasingly valued as part of social capital. Social capital and collective action The notion of social capital encompasses the inherent norms of society that have developed over time and inspire its operation. It expresses the importance of human resources and their organization in income generation as an essential complement to physical capital within this process. It finds its roots in the growing awareness that history matters in development, as do institutions. It draws on the insights of the theory of path-dependence and on the role of institutional constraints, which became part of the intellectual patrimony of many thinkers in the 1990s. Its roots can also be traced to the Marxist concept of relations of production, with its inherent emphasis on human organization, institutions and, more especially, property rights (cf. Marx's Private property and communism and Communism and history in McLellan, 1977). CPRs and their members act according to the socio-economic and physical environment within which they operate, and they may slowly evolve appropriate forms of institutions. Thus the social capital concept is useful in explaining the ability of small and apparently remote groups, operating within CPRs, to capture the benefits from use of, often marginal, resources through the social capital accumulated over generations. In a broad sense social capital can be defined as the web of social relations that underpins all human actions and that, together with human and physical capital, defines their outcomes. In this sense social capital encompasses horizontal and vertical relationships operating within a given society at any given time; it is represented by a series of changing interrelations and responsibilities, characterized by reciprocity, which allow a basic level of social equilibrium. The dynamic nature of social capital is thus a mirror of changes in society and of the fact that the latter is composed of overlapping groups which influence each other. Granovetter (1985) stresses this dynamic nature and interdependence by demonstrating that social actors' behaviour is embedded in a system of on-going social relations, whether in market or in pre-market societies. Furthermore, CPRs do not exist in isolation, and their social capital is affected by that of other communities or groups within the community in an infinite chain of mutual relations in which the transfer of information, its mode and level are essential. Investment in social capital, as Ostrom observes (in Keohane and Ostrom, 1994) when describing collective action in a communal irrigation system in Nepal, is frequently in the form of bargaining over which rules will be adopted to allocate the benefits and costs of collective action. In the institutional process leading to the definition of rules, the state and market, as well as groups and people's organizations, may contribute. Institutions and hierarchies For liberal economists, the market itself ensures the evolution of institutional arrangements that benefit individuals and communities (as collections of individuals) alike and encourage greater efficiency. But, as Stewart (1996) points out, neo-classical economics ignores the essence of groups, by treating them, when it considers them at all, as if they were individuals. She argues that groups, whether formal or informal, promote efficiency in terms of response to market failures, in order to offset imperfect information and the attendant high transaction costs for individuals or in order to provide collective action to gain access to non-excludable goods, such as the commons. Traditional communal groups are often portrayed as essentially non-hierarchical and acepahlous institutions (Keohane and Ostrom, 1994). The new institutionalists describe numerous examples of polities that are acephalous and claim that the principles underlying them offer a genuine alternative to political systems that rely exclusively on hierarchical decision-making arrangements (Ostrom, Schroeder and Wynne, 1993). Whether acephality is conducive to development and whether it is really present outside very small and remote communities is, however, open to debate (cf. Elster, 1989). Definitions of acephality that are valid in the context of advanced industrial societies also need further probing. Much common property literature underlines the threat of outside pressure to the traditional endogenous rules of local institutions but tends to neglect interactions beyond the local sphere. The on-going analysis of so called "nested enterprises", organized into larger hierarchical federations so as to offset the problems engendered by the atomization of decision-making centres, is the new institutionalists' attempt to overcome this limitation (Keohane and Ostrom, 1994). According to Ostrom, Schroeder and Wynne (1993), the type of local organization, ways and means for people's participation in local and, indirectly, non-local decision-making are central to the effectiveness of institutional structures. The new institutionalists also introduce the concept of "polycentricity", an evolution of the theory of non-hierarchic and acephalous governance, emphasizing the linkages among local CPRs. This complements the school of thought that argues for the importance of scale in defining local communities' capacity to function and stresses that many answers to scale problems are to be found through associations of local governments (FAO, 1997a). Yet another set of issues relating to social differentiation within CPRs needs more in-depth analysis, however. Even in the smallest CPR, elements of differentiation and hidden hierarchies are present, causing a need for bargaining within each community as well as among communities. Knight (1992) is one of the main advocates of paying attention to the distribution of benefits within groups, as opposed to group behaviour as a whole, and the need to recognize the process of bargaining that guides negotiations for access to resources and power, risk aversion and time preferences within often asymmetric groups. The importance of bargaining becomes greater, however, when larger groups or several groups are involved. When the objective exceeds the reaching of agreements on contingent matters, an element of trust becomes essential. Trust, as the outcome of generalized reciprocity that reduces uncertainties and facilitates future cooperation, becomes part of the social system within which both individual and group actions are embedded (Putnam, 1993). It becomes an essential feature underpinning the constant process of negotiation and bargaining that fashions institutions. INSTITUTIONS AND THE STATE In classic common property theory, the stress is on reciprocity among local institutions and a strong element of trust. The role of the state is often seen in terms of disruptive interference rather than as that of an agency to promote negotiation among groups. However, there are many intermediate steps between private protective associations and a highly structured state, passing through minimal states which have the monopoly of force for self-defence and provide protection only to those who ask for it (Nozick, 1974). A multiplicity of institutions have always been included under the general term of state. It is possible to identify case by case the point at which institutions acquire authority functions, in terms of law setting, monitoring or general administration, that assimilate them to state functions. This depends on the level at which the majority of state functions are performed, whether centrally or at the periphery, identified in municipalities, provinces or regions (Matteucci, 1993). There is no real consensus on the role, or even the definition and essence, of the state. Some stress its main function as coercion expressed by its monopoly over the use of force, while for others this is much too restrictive a description and they underline positive features such as peacekeeping and social organization (cf. Ostrom, 1990; Bobbio, 1995; Matteucci, 1993; Levi, 1988). The way in which various theories have been appropriated and developed in political science and praxis is not neutral to the sociocultural environment in which they operate, and this applies both to political theories and to the emphasis given to different functions of the state. For instance, in the continental European tradition the state tends to be represented as dominant in lawmaking, whereas in the Anglo-American tradition common law which evolves by consent is predominant. The centrality of the role of the state in continental European tradition is not without importance to understanding the position of CPRs in systems that tend to underrate the importance of common law versus codified legislation. This consideration applies also to those countries that have based their legal and administrative systems on models from continental Europe. The advances already made in the theory of institutions and its applicability to CPRs are an encouragement to analyse further those aspects that appear less convincing. Among these the role of the state and its articulation with CPRs, and the related issue of scaling up CPR activities should be priorities. There is empirical evidence, particularly in the case of pastoral communal groups (cf. Forni 1998), that transaction costs increase as a system increases in complexity, from self-contained CPRs to outward-looking ones, such as those based on movable assets, e.g. flocks grazing over large territories with floating borders. Costs are lower when access to resources is under the control of one community than when a CPR has to negotiate on behalf of its members access to other CPRs and to areas under private control. The more complex the polity and the economy, the more necessary it becomes to have a web of information and mutual support stretching over territories that are usually beyond the capacity of single CPRs. It could thus be argued that state intervention is essential to coordinate and ensure the functioning of CPRs beyond the purely local level and, in particular (even if not solely), where CPR rights holders have to interact with other common property or private regimes over large territories, as in the case of CPRs involving transhumant pastoralism. In this context, the state is a public institution which, through organizations active at different levels and with different responsibilities, provides services, coordinates and monitors national, regional and subregional sectoral and intersectoral policies and is accountable to individual citizens and local institutions. Its operation, at the various organizational and territorial levels, can be influenced by the formal and non-formal institutions with which it interacts. It would then seem that the smaller the territorial coverage and coordination needs of a CPR, the less the need for state intervention. It may also be useful to underline the importance of the state - or some other outside agent - in determining and monitoring land use and land tenure rights, which is essential in any study of the commons. According to Bates (1971), for instance, in Near Eastern land use, mutualism and cooperation between peasants and nomads are the functions of a balance of power where the state is often a more critical factor in determining land-use relations than the local ecology and where the interaction of local social entities depends on how each articulates with non-local sources of political power. Transaction costs associated with coordination, information and strategic behaviour in the organization and management of CPRs depend on the time, capital and human resources needed for negotiating and monitoring agreements. In the case of pastoral CPRs in the Islamic Republic of Iran, for instance, the schedule of transhumance movements along routes determined basically by natural conditions depended not only on the state of vegetation but also on the coordination of movements with other tribes. This was ensured by a complex intertribal organization. Such organizations, i.e. well above the level of the single CPR, monitored access to grazing and coordinated, through tribal confederacies, herd movements and relations to sedentary herders (Barth, 1961). CONCLUSIONS The overall objectives of CPRs are to control and promote the productive capacity of communal resources, set rules and monitor adherence to them by CPR rights holders, and coordinate with external institutions. A crucial issue in CPR sustainability concerns the capacity of CPR rights holders to coalesce and achieve collective action for internal organization as well as to interact with the outside world. How social capital and collective action function in coordinating different internal functions, as well as the interaction between CPRs and external institutions in achieving the major CPR objectives, is at the heart of the debate. Within CPRs, cooperation and collective action can take place through adherence to the unspoken rules of society, the "tacit knowledge" of Polanyi (1967), which ties rights holders to the commons horizontally in a long chain or web of reciprocal behaviour. It can be argued, however, that it is the state, at various levels and under different forms, that provides a link between these parallel and often unconnected webs, thereby providing them with a means to connect with each other as well as with non-CPR institutions. In this article the role of the state in connection to CPRs has been underlined because it is a contentious issue among common property scholars. This should not, however, divert attention from other characteristics of CPRs that deserve more discussion. For instance: those dealing with contribution to the subsistence of the poor - CPRs' functions as a safety net for the poor were essential in historical times in Europe and still are in developing countries today; those related to leadership and group dynamics; and those related to legal recognition of customary rights. References Axelrod, R. 1984. The evolution of cooperation. New York, Basic Books. FAO Corporate Document Repository
"Nadia Forni, a socio-economist, spent most of her professional life with FAO dealing with various aspects of rural development in the developing world. Her special focus was on problems related to landlessness, on pastoral areas and common property regimes. Recent publications include contributions to 'Poverty and Transition to a Market Economy in Mongolia', K. Griffin Ed., MacMillan, London 1995 and to FAO's Land Reform: 'Herders and common property in evolution: an example from central Italy' 2000/1, and 'Common property regimes: origins and implications of the theoretical debate' 2000/2. Currently she is a practicing farmer in Central Italy and a free lance consultant with special interest in the Near East and Eastern Europe." - Part Three: Factors and Inputs for Agricultural Production: Structures and Institutions in Syria http://tinyurl.com/33fjhg Excerpt from Page 134 of 146 pages. © Copyright 2002-2007 by Magic City Morning Star |