Vol. 10 No. 10 (October 2000) pp. 569-572.

PROPERTY AND VALUES: ALTERNATIVES TO PUBLIC AND PRIVATE OWNERSHIP by Charles Geisler and Gail Daneker (Editors). Washington, D.C.: Island Press, 2000. 336 pp. Paper $35.00. ISBN 155963-766-8.

Reviewed by Victor Forberger, Law, Policy & Society Program, Northeastern University.

This volume, arising from a 1995 conference at Harvard Law School on property relations, rights, and policies, offers an appealing and extremely diverse collection of essays on the question of property ownership. The essays revolve around two questions: whether the traditional conception of ownership provides a viable mechanism for understanding what is happening in real property law today and, if not, does a conception of property that splinters the question of ownership offer a workable alternative for satisfying the housing needs of people today? Needless to say, the authors offer sharply different answers to these questions. Some argue that traditional notions of property ownership are and always have been misleading in describing how property relations are understood. Public and private spheres, these authors find, are so intertwined that it is impossible to say that any single individual or even government entity unilaterally controls a piece of property. New mechanisms of property ownership are needed, ones that build on the overlap between public and private ownership. Others aver that the traditional conceptions of private ownership -- even when little more than a legal fiction -- serve as a useful and powerful mechanism through which people can put their property to use, and that public and private spheres must remain separate if that property will benefit anyone.

In the former camp are essays by Joseph Singer, Peter Salsich, Jr., and Charles Geisler, which reason that property is best, understood as a social relationship rather than as a question of who holds title. For these three authors, distinctions between the private and public do little to explain property ownership and even obfuscate the variety of estates that co-exist with and even overlap with traditional notions of private and public ownership. As Geisler explains, "the bundle of rights held by private owners has a shadow bundle of public rights accompanying it" (p. 70). Singer's essay indicates how the use of property is a privilege "contingent on its effect on others" (pp. 10-11) through a discussion of property laws ranging from nuisance doctrine to public accommodations law that prevents racial discrimination. Salsich expands on the kind of public policies that affect property relations by showing how the Christian conception of stewardship has historically encouraged individuals who held property to attend to the needs of those who lacked property. For those who want more modern evidence for this alternative conception of property, Geisler's essay presents a host of examples ranging from Indian reservations to the "common" holdings in condominiums or gated communities.

Offering a strong caution to this

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blurring of public and private property is Michael Heller's intriguing piece on empty Moscow stores. Heller reveals that as far as property rights are concerned there is such a thing as too much democracy. He describes how the transition from communist rule in Russia has resulted in many Moscow stores remaining vacant because too many property rights to those stores -- the right to occupy, the right to sell, the right to profit from the sale, the right to profit from the lease, the right to determine the use of the property -- have been splintered among too many people and governmental entities such that negotiation over those rights has become prohibitively expensive. With so many owners holding exclusionary rights over those storefronts any settlement of differences is impossible and the property in question remains vacant.

Heller calls this result a tragedy of the anticommons -- when too many people have control over a property so that no one uses it. In comparison, the standard market legal bundles in the United States, Heller explains, offer an efficient mechanism for using a property for some purpose. "Private property rules ensure that decisions by private owners to create anticommons property will not paralyze the alienability of scarce resources for too long or diminish their value too drastically" (p. 203). Heller's point is not that public and private ownership must remain distinct. Rather, what matters is that people can "perceive" a set of coherent ownership rights, and that this perception allows them to put the property to use in some way. Other kinds of property suffer from similar anticommons problems, he observes, but those properties can still find their way into a market because "private" actors can through a variety of means including outright coercion gain control of the property. The trick, then, is not necessarily to keep private and public ownership separate but to understand how they might work together to encourage individuals to use their property in ways that are beneficial to society and not necessarily harmful to other private property-holders.

Essays by C. Ford Runge et al. and Franz von Benda-Beckmann go to the heart of the issue of how public and private spheres are intertwined. The first by Runge and six other collaborators offers a meta-analysis of studies that quantify the effect government action has on land values. Studies that explore the effect of agricultural policies, grazing rights, highways location and development, and zoning regulations are all discussed. The authors even point out how economic policies that have no direct relation to land use programs have significantly affected land values. In the late 1970s and early 1980s, the authors explain, the value of farmland and the economic fortunes of farmers turned not on agricultural programs but on the nation's policies regarding interest rates and international trade.

A wonderful essay by Benda-Beckmann challenges the idea that public and private dimensions of property can be easily distinguished. His examination of property ownership in Indonesia shows how the ideas of public and private property largely arose from distinctions internal to a legal system rather than from the ideas and practices of the people using the property in question. The Minangkabau had developed an extensive network of rules and procedures for maintaining and transferring property, Benda-Beckmann finds. But, the attempts to add European conceptions of private and public property to those traditional practices transformed them to the point where they were no longer workable.

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Mutated versions of the European notions were all that was left.

Several essays point out how new linkages between public and private spheres can create affordable property. Most of these efforts focus on the community land trust model where a public entity of some kind attains ownership control over land and establishes conditions under which others put that land to use. Murtaza Jaffer explains how a combination of local activists and residents came together in Kenya to develop a community land trust as an alternative to both state-controlled land ownership and individually-owned property, neither of which had much success in supplying affordable housing. The community land trust turned out to be the only mechanism flexible enough to meet the challenges affordable housing posed within a complicated legal system, a populace suspicious of trust arrangements in general, and an economic climate pushing privatization.

David M. Abromowitz describes why the Dudley Street Initiative settled on the community land trust model as the best mechanism available to develop affordable housing in a blighted area of Boston. Other efforts at affordable housing either lacked the community involvement or the longevity that was available via a community land trust. James M. Libby, Jr., and Darby Bradley explain how housing and land trusts movements in Vermont coalesced around the cause of affordable housing to create a statewide agency that propelled the issue of affordable housing into the spotlight for all of Vermont. John Emmeus Davis wraps up the discussion of community land trust reforms by placing them into the larger program of housing reforms -- e.g., cooperatives, deed-restrictions, and non-profit rental associations -- called "third sector housing." What characterizes these housing reform efforts, Davis denotes, is the removal "from the owner's 'bundle of rights' those 'sticks' that allow -- and often encourage -- residential property to become unaffordable over time" (p. 238).

This entire collection of essays offers up an excellent contribution to the field of property law and housing reform. For graduate students looking for a quick introduction to many of the current issues and debates in property ownership, for academics wanting to survey some of the hottest developments in housing reform, for undergraduates in a class on public policy and property, or for first year law students looking for something more than just legal cases, this collection is the volume to turn to. The breadth of topics and methods reveals most of the current issues and debates over property today. Some of the essays may have too much information packed into too few pages, but such conciseness is a boon when compared to the law review articles where these issues are usually presented.

For a book five years in the making, however, there are still some gaps in the presentation that should have been remedied. Some of the essays have not been updated since the original conference, and the authors have not developed any kind of dialogue among themselves. It would have been more informative, for example, if the authors of the articles on community land trusts addressed some of the issues Heller raised in his piece.

A more serious problem with the collection is its inability to explain why people might want third sector housing reforms. Despite the focus on property reform in many of these articles, questions over why and how people might support

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them remain largely unexamined. A short statement in Jaffer's essay that one group in Kenya had a cultural history more amenable to a community land trust than another is the furthest most of the authors go. Only Benda-Beckmann's essay delves into the question of how people actually understand their property relations outside of the legal categories being employed. If the third sector housing reforms the authors discuss here are to gain a larger foothold in current housing policies, there needs to be more analysis of how people understand their property before the lawyers and reformers get involved.

However important such research is to the question of what value people attach to their property, the work presented here should not be diminished. The authors have shown through countless examples and irrefutable logic that property ownership involves many more people than just an "official" owner, and that any understanding of that property is actually a conception of how all the people attached to that property should relate to each other. In essence, the authors here have provided a map for bringing all those social relations to the foreground of property ownership questions. The issue for the rest of us is not to get lost following their directions.