The historical antecedents of Garrett Hardin’s “tragedy ofthe commons” are generally understood to lie in the common grazing lands of medieval and post-medieval England. The concept of the commons current in medieval England is significantly different from the modem concept; the English common was not available to the general public but rather only to certain individuals who inherited or were granted the right to use it, and use of the common even by these people was not unregulated. The types and (...) in some cases the numbers of animals each tenant could pasture were limited, based at least partly on a recognition of the limited carrying capacity of the land. The decline of the commons system was the result of a variety of actors having little to do with the system’s inherent worth. Among these factors were widespread abuse of the rules governing the commons, land “reforms” chiefly designed to increase the holdings of a few landowners, improved agricultural techniques, and the effects of the industrial revolution. Thus, the traditional commons system is not an example of an inherently flawed land-use policy, as is widely supposed, but of a policy which succeeded admirably in its time. (shrink)

Advocates of the privatization of law often assume that unless law springs from some act of agreement, some express or implicit social contract by which individuals consent to be bound, it is nothing more than force. In this Article, I argue that this is a false dilemma. Although law is rarely grounded in consent, this does not imply that law necessarily gives some individuals command over others. Law can arise through a process of evolution. When this is the case, those (...) subject to law are indeed bound, but not by the will of any particular human beings. Although this depoliticized law is inherently coercive, it is not inherently a vehicle for domination. This Article argues that such a system of depoliticized law is consistent with the ideal of the rule of law, and, in fact, is free market law, when that phrase is properly understood. (shrink)