Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00802.x |
| Published date | 01 May 2010 |
| Author | Christopher Rodgers |
| Date | 01 May 2010 |
LEGISLATION AND REPORTS
Reversing the ‘Tragedy’ of the Commons? Sustai nable
Management and the Commons Act 2006
Christopher Rodgers
n
The Commons Act 2006 is the ¢rst statute since the Commons Registration Act
1965 to addressthe problems associated with the management of common land in
England andWales. A key focus for the 2006 Act is the introduction of mechan-
isms for the sustainable management of common land, including self-regulatory
commons councils. This article examines the ‘sustainable’ management of com-
mon land in historical and contemporary perspective. It sets the 2006 Act, and
the sustainable management of common land, in the wider context of the
ongoing debate triggered by Hardin’s ‘Tragedyof the Commons’ and subsequent
institutional and post-institutional scholarship on common pool resource man-
agement. It uses historical andqualitativeresearch data drawn from three casestu-
dies to demonstrate the irrelevance of Hardin’s thesis in an English context, and
identi¢es the Commons Registration Actof 1965 as the true ‘tragedy’ of the Eng-
lish and Welsh commons.The case studies also illustrate the challenges posed by
the introduction of legal mechanisms to promote the ecologically sustainable
management of the modern commons, and informthe critique of the Commons
Act 2006 developed in the article.
INTRODUCTION
The Commons Act 2006 is the ¢rst statute to address the management of common
land in England and Wales since the Commons Registration Act 1965. It seeks to
provide a regulatory framework for the sustainablemanagement of the commons,
through reforms to the registers e stablished unde r the 1965 Act, and the establish-
ment of self-regulatorycommons councils.
1
This article has two objectives. It will
n
Professor of Law, Newcastle University.This paper draws on research funded by the AHRC under
project AH/E510310/1, ‘Contested Common Land: environmental governance, law and sustainable
land management c.1600^2006’, part of the AHRC Landscapea nd Environment programme. I am grate-
ful to AngusWinchester for the historical references in footnotes 29^32:and for his, Eleanor Straugh-
ton’s, Ole Pedersen’s andJulia Aglionby’scomments on earlier drafts of this paper.
1 Implementation of Part 1 of the Act (Registration) is currently the subject of a pilot exercise in
seven local authority registrationdistricts: Devon, Kent,Cornwall, Hertfordshire, Herefordshire,
Lancashire (excluding Blackpool)a nd Blackburnwith Darwen (see the Commons Registration
(England) Regulations20 08, SI 2008/1961). If successful, Part 1will be implemented on a rolling
basis from October 2010,with all commons registration authorities covered by 31October 2013.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(3) 461^486
set the management of common land in hi storical perspective, and co nsider in
particular the impactof the Commons Registration Act1965 on principlescaptur-
ing ‘sustainable’ commons management that were formerly expressed through
common law rules. Secondly, it will consider how sustainablemanagement objec-
tives are expressed in modern public pol icy, and how the reforms in the Commons
Act 2006 will assist their successful implementation. Itwi ll concludeby contextua-
lising the English Law on commons governance within the wider debate on the
institutional governance of common pool resources. These themes will be illu-
strated byh istoricala ndc ontemporary research data drawn from three case studies
of upland commons i n England and Wales: Eskdale (C umbria), Ingleborough
(NorthYorkshire) and Cwmdeuddwr common (Powys).
2
COMMONS MANAGEMENT IN CONTEXT
The ‘tragedy’thesis and commons governance
Garrett Hardin’s in£uential thesis on the ‘tragedy of the commons’ argued that the
incentive to put private gain before the common good meant that common pool
resources are inherently subject to atendency to degradation leading to‘ruin to all’.
3
As this paper will demonstrate,Hardi n’s thesis has no application to common land in
England and Wales. It is based on a false premise, namely that there is unrestricted
access to common pasture and othercommon la nd resources. Access to the resources
supplied by common land in E ngland andWales, and the manner i nwhich they are
used, have both been the subject of extensive regulation since the medieval period.
Hardin’s thesis has also been challenged by institutional writers, who have
stressed the wider e¡ectiveness of self-regulating common pool resource insti-
tutions.
4
Ostrom’s in£uential work, for example, posited eight ‘design principles’
that are displayed by successful common pool resource institutions,
5
and
new-institutional writers have also stressed the inherent re£exivity of institutions
for the management of common pool resources.
6
Re£exive institutionalism
Part2 ofthe 200 6 Act(commons councils) will be implemented in stages to be determined from
2010.
2 AHRC project AH/E510310/1 used four case studies to examine the sustainable governance of
common land in historical context, from the early modern period to the passing of the Com-
mons Act20 06.The fourthwas the North Norfolk grazing marshes at Brancasterand Thornham.
For further information, historical workingpapers and qualitative research data generated bythe
project,s ee the projectwebsite: http://commons.ncl.ac.uk/casestudies.
3 G. Hardin,‘The Tragedyof theCommons’, Science,162 (1968) 1243, 1244.
4 See generally E. Ostrom, Governing the Commons: the evolution of institutionsforcollectiveaction (Cam-
bridge: Cambridge UniversityPress 1990).
5 For example, the ability of i ndividuals a¡ected by operational rules to participate in their mod-
i¢cation, the applicationof monitoringby appropriators, of graduatedsanctions for violation of
appropriationrules, and the application of low cost dispute resolution mechanisms to resolve con-
£icts between resource appropriators. See Ostrom, Governingthe Commons ibid at 90^91.
6 For further elaboration of the institutional approachse e:A. Agrawal, and E.Ostrom ‘Collective
Action, PropertyRights, and Decentralization in Resource Use in India and Nepal’ in (2001)29
Politics and Society 485^514; A. Agrawal‘Sustainable Governance of Common-Pool Resources:
Context, Methods, and Politics’ in (2003) 32Annual Review ofAnthropology 243^262; T. Dietz, N.
Dolsak, E. Ostrom, and P. Stern,‘The Drama of the Commons’ in E. Ostrom, T. Dietz, N.
462 r2010 The Author. Journal Compilation r2010The Modern Law ReviewLimited.
(2010) 73(3) 461^486
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