Social & Legal Studies

This special issue explores the idea of commons, placing it in a theoretical but also richly empirical context. In this introductory article, we highlight the depth and diversity of the scholarship on commons represented in this issue. Drawing from the articles that follow, we examine a range of commons that share a dependency upon the collective and local ownership of land, resources or ideas, held in an often communal manner and sometimes in opposition to private property. We begin by returning to land as the original locus of commons and trace the importance of issues of public space and public access. In moving beyond a land-based and unitary conception of commons, we analyse the emergence of richer understandings of commons, divorced from physical or geographical entities — cultural and historical commons, and environmental commons including the idea of a `Global Commons'. In these different settings, we consider how the idea of `the commons' can work as a signifier — of resistance, community, collective action and common values.

Although considerable research has been conducted into the dynamics of commons in rural settings, we still know very little about common property within cities. Given the hegemony of certain models of property, the urban commons has been overlooked and ignored. Urban commons do not look like property to us. This can lead, I argue, to real injustice. Based, in part, on empirical research in Vancouver, I attempt to map out the urban commons of the poor, particularly in relation to the dynamics of inner-city gentrification. This commons, produced through intensive patterns of use and collective habitation, is fiercely moral, reliant upon political claims and the exclusion of interests that threaten enclosure. For inner-city activists contesting displacement, the commons is real. As such, gentrification, and related dynamics, can usefully be thought of as forms of enclosure, or what David Harvey terms `dispossession by accumulation'. I conclude by asking what urban policy, political praxis and property theory might look like if they acknowledged the collective property interest of the poor in the inner-city commons.

Government policy towards the crofting form of land tenure in Scotland is investigated in terms of the ideology of `community'. The example of `crofter forestry', the creation of woodland on crofts, is examined, and the assumptions of law and policy are contrasted with the experience of crofters themselves. A comparison is then made between the croft forestry legislation and later land reform legislation that applied not only to crofting tenure but also to other rural communities, in terms of a changing approach by the state to the construction of community.

The development of a rigorous basis for what it means to be public in rural space depends in large part on the distinctive language and ideas of access and commons. Understandings of rural space that inform policy-making are peculiarly dominated by the rhetorical and political power of private property. It is access and commons that give an opportunity to confront this. The article draws on an example of a challenge by a landowner to the heralded public access provisions of the Countryside and Rights of Way Act 2000 to demonstrate the inadequate versions of access and the public presence that the current deference to private property is producing. The ensuing Public Inquiry was premised on an inadequate conception of public rights to space and a concomitant privileging of private property. In several ways the Inquiry set out deliberately to exclude the voices and claims of publics. The article identifies four primary areas in which the possibilities for promoting a new public presence in rural space via access and commons coincide.

Key fish stocks off the West African coast are currently overexploited, raising biological alarm-bells and threatening the socioeconomic well-being of regional inhabitants. International law obliges states to cooperate towards the sustainable use of fisheries in all waters, as reflected in the fisheries management policy of the European Union (EU). To date, however, these legal regimes have failed to secure the goal of sustainable fishing. This is particularly so in West African coastal waters, where various foreign fleets (including of the EU) enjoy access in terms of legally sanctioned arrangements. In this article I investigate the failure of international law to facilitate the realization of sustainable fisheries in these waters, referring to EU—Senegal fisheries relations as an illustrative case study. In doing this, I discuss the difficulties of sustainable fisheries management in light of their common resource nature and outline the legal responses to these challenges. Drawing on empirical research, I identify the manner in which the international system sanctions unsustainable fisheries relations between Western nations and developing coastal states and argue that the regime must be re-crafted (together with the domestic systems shaped by it) to better facilitate interactions that are not exploitative but rather genuinely cooperative towards the goal of sustainable fisheries.

What can the concept of `the commons' lend to cultural property and heritage analysis? How can it be applied to these areas, if one looks beyond the protection of solely `natural' resources such as land (although `land', as a highly regulated substrate bearing a plethora of significations and values, may itself no longer be considered a `natural' resource)? The debates around property and culture are more usually understood by reference to `cultural nationalism', `cultural internationalism' and the web of disciplines and resources that grow between these two traditional approaches, and yet these resources leave many problems and issues in this field unresolved. The discourses that make up commons scholarship might serve to expand the toolbox of cultural property discourse, in particular where the issues span the most personal and the most communal problems of all: human skeletons and repatriation claims. This article argues that the very discourse of the commons itself is a strategy, a means of establishing and policing thresholds that in turn move according to strategies and desires of acquisition. In short, designating an object as located within `the commons' is another way of justifying the appropriation of contested cultural property.