2.2.2.4. State property

What we mean by ‘property’ 41

2.2.2.5. Anticommons property

If open access communal property denotes a resource which everyone has a privilege to use and a right not to be excluded from, but no right to exclude others from, its mirror image would be a resource which everyone has a right to exclude all others from, but no right or privilege to use for themselves. At first sight, it is difficult to think of a real-life example of such a form of property – usually called anticommons property, as the antithesis of communal property. Its theoretical existence seems to have been first suggested by Frank Michelman in 1982 (in ‘Ethics, Economics and the Law of Property’, p. 3). However, the usefulness of the concept did not become apparent until it was reformulated by Michael Heller a few years later. In a seminal article, ‘The Tragedy of the Anticommons’, Heller used the term ‘anticommons’ to describe a situation in which the ownership rights to a resource are distributed between multiple owners in such a way that each has the right to prevent use by the others, and hence none has the privilege to use for himself (except by consent of all the others, which they are freely entitled to withhold). A simple example (given by Lee Anne Fennell in ‘Common Interest Tragedies’, discussing Heller’s analysis) would be a garden communally owned by ten adjoining houseowners, each of whom has put a separate lock on the gate leading into the garden, so that each houseowner has effectively excluded all the others, but cannot herself use the garden without first persuading all the other houseowners to unlock their locks. However, Heller produced his reformulation in an attempt to explain a phenomenon he (and others) had noted in post-Soviet Moscow. After state ownership of shops was relinquished, shops in Moscow nevertheless remained virtually empty of consumer goods, while at the same time flimsy privately owned metal kiosks, crammed with goods, mushroomed on the pavements outside. Why did the kiosk operators not move into the shops, either by taking leases or by coming to some other arrangement with the shop-owners to operate from there? His diagnosis of the problem was that, because property rights in shops were distributed among a number of different bodies in an attempt to placate or compensate socialist-era stakeholders, shops had become anticommons property: no single individual was given full ownership rights. Instead:

[i]n a typical Moscow storefront [shop] one owner may be endowed initially with the right to sell, another to receive sale revenue, and still others to lease, receive lease revenue, occupy, and determine use. Each owner can block the others from using the space as a storefront. No one can set up shop without collecting the consent of all of the other owners. (Heller, ‘The Tragedy of the Anticommons’, p. 623).

This made it prohibitively difficult for the kiosk operators to come to any arrangement with the shop-owners, whereas it was relatively easy for them to operate illegally from the pavement: all they had to do was bribe the local officials responsible for keeping the pavements free from obstruction and pay protection money to the Mafia. As one kiosk operator explained to Heller: