Legal ideology and the commons: Why are jurists falling behind?

The last quarter of a century has featured a surge in interest and studies on the commons, spearheaded, of course, by the efforts of Elinor Ostrom. These efforts have problematized the once well-established paradigm of the tragedy of the commons most clearly described by Garrett Hardin in 1968. One could say that the commons, thus, have become a fundamental field of study in most social sciences. This is not the case in the field of legal scholarship (with one noticeable exception that I will discuss later), which leads me to the overarching issue of this essay, namely the difficult relationship between jurists and the commons. The phrase “difficult relationship” does not refer to an explicit antagonism, but to something even worse: complete indifference and a scandalous lack of knowledge. While my main purpose is to try to explain this sorry state of affairs, I also hope to make a more general point on the nature of law and legal change. In this sense, the commons can be considered a case-study in legal theory. The main issue of this paper is to tackle following sub-questions. What is the status of commons in the Western European legal discourse? Why do most legal scholars pay such a poor attention to the growing literature on the commons in other disciplines? What factors contribute to this peculiar case of cultural deafness? What promise of improvement does the future hold

Property Meeting the Challenge of the Commons in The Netherlands

In different branches of the Dutch legal system, there are categories and rights that serve to protect specific commons through different methods. Sunlight and air (including wind for windmills) can be freely used by everyone. Waters in the sea and rivers are things under private law, but do not have any owner until water is extracted. The seabed of the territorial sea and the Wadden Sea are State-owned and cannot be alienated. State-owned markets, schools, and swimming pools are public things. The public may claim access to private roads. Certain privately owned forests are maintained, in return for tax benefits, in the public interest. Health care, food, education, housing, and environmental protection are protected commons. Nationalisation requires an expropriation unless the owner is willing to sell: property may be expropriated only if in the public interest and the owner is compensated. In private law, there are specific grounds on which a non-owner can claim access to somebody else’s land