Abstracts Philosophy, Religion, and Theology

In the Shadow of the Leviathan: Customary law and Property as a Bundle of Rights from Henry Sumner Maine to Elinor Ostrom

by Marc Eric Goetzmann

This work highlights the direct or indirect links between the contemporary study of « commons » by Elinor Ostrom and her colleagues and that of « village communities » by some late 19th century thinkers. In particular, these two corpuses explicitly challenge the use of the figure of the Leviathan as sovereign, source of the law and protector of individual property. The works of Henry Sumner Maine and John Stuart Mill show that the problem of managing colonial India fueled debates that interested their European contemporaries on questions such as the alternative between individual and collective property, the problem of legal codification, or the nature of sovereignty. The philosophical and legal paradigm inherited from Hobbes, Bentham and Austin is thus challenged in the face of the existence of these « village communities » and their complex structures of ownership, regulated by customary systems independent from any « sovereign ». Custom then appears in these communities as a set of rules designed to allow the collective management of resources, which is confirmed and clarified by Elinor Ostrom's study of the commons. It is also in this context that the origin of the idea of property as a « bundle of rights » can be found. We show that, in the 19th century as in the more recent studies on the commons, this idea does not refer to a fragmented set of rights, but rather to a specific structure, that encapsulates a patrimonial conception of property, to be distinguished from the idea of property as the absolute dominion of individuals over things. These parallels also offer valuable insights on problems of collective action and cooperation, by highlighting the role customary law plays in solving them.