The Liberal Commons

This chapter advances a theory of the liberal commons, the aim is to demonstrate its usefulness. Section I introduces the problem of tragic choice. Section II proposes a theory of the liberal commons that engages the problem of tragic choice. It explores the widely shared, often buried, and potentially competing goals that law must reconcile when people want to cooperate in managing a scarce resource but fear abuse. It then discusses the background role that law can play in guiding human behavior. Finally, it sets out the three spheres of decision-making that characterize the general form of the liberal commons solution-the spheres of individual dominion, democratic self-governance, and cooperation-enhancing exit. These three spheres are the core innovation of the theory: They provide a coherent language for exploring the recurring problems that law must address whenever it mediates liberty and cooperation in commons ownership settings. Section III brings the liberal commons down to earth. The example of declining black land-ownership is used for the limited purpose of suggesting how the American law of co-ownership may systematically thwart cooperation. Current law fails them, and us, because it lacks the three features of a liberal commons, features that exist in other developed legal systems and are potentially available in our own. While a liberal commons solution may be too late for black farmers, their example can still catalyze useful reforms.