Commons

Concept and Historical Development of the Commons

Die Commons refers to a collectively used asset or resource, which is not exclusively assigned to a single owner. Originally, the commons were a fixed component of pre-industrial agrarian law and economic systems, especially in German-speaking areas, and to this day remains a significant concept in resource, property, and communal law.

Commons originally relates to collectively used land provided to a specific community of users (usually a village community), for example, pastures, meadows, forests, or bodies of water. This legal term derives from the Middle High German ‘al(ge)meinde’ and is closely related to similar institutions in other European legal systems (e.g., ‘commons’ in the Anglo-American legal context).

Legal Structure of the Commons

Formal and Material Manifestations

The commons can be found in different legal systems and eras in various forms. All manifestations have in common that resources are used collectively, i.e., by multiple entitled parties or a collective user community under specific rules.

Collective Ownership

The commons differs from private property in that usage rights are exercised collectively by all entitled members of the community. The original ownership mostly remained with the municipality/common holders or later with certain public law entities. Individual members had the right of use (e.g., grazing, wood collection, or haymaking).

Distinction from Other Legal Institutions

The commons must be distinguished from

• private property (individual ownership),
• municipal property, which is available to a municipality as a legal entity, but cannot be used equally by all residents,
• and from public property, which belongs to public authorities (state, municipalities).

Legal Sources and Legal Framework

Historical Regulations

Use of the commons was frequently regulated by local customary law, statutes, or village ordinances. These covered among other things

• who was entitled to use,
• which types of use were permitted (e.g., grazing, wood usage),
• regulations for sustainable use and protection against overuse,
• procedures and sanctions for violations of usage rules.

Modern Law

With the transition to the modern property regime (e.g., after the introduction of the German Civil Code (BGB) in Germany), many common lands lost their original legal nature and were dissolved, privatized, or transformed into cooperatively or municipally managed areas.

Currently, there are still many legal forms with elements of the commons. Examples include

• real communities, forest cooperatives, common property associations,
• collective ownership under §§ 1008 et seq. BGB (joint ownership in fractional shares) or according to other special statutory provisions,
• special forms such as collective hunting rights, pasture cooperatives, or fisheries cooperatives.

International Law and Common Goods

The concept of the commons is internationally known under the term ‘commons’ and extends beyond land to other collectively used resources such as water, air, fish stocks, or digital resources. International treaties, such as the Convention on Biological Diversity, also take into account community resources and traditional usage rights.

Legal Issues and Protection of the Commons

Dangers of Overuse (Tragedy of the Commons)

The commons is frequently cited in literature as an example of the problem of overuse of collectively used resources (‘tragedy of the commons’). If effective self-governance or societal control is lacking, individual users may overuse the resource, to the detriment of the community and leading to the loss of the asset.

Protection Mechanisms and Governance Structures

Legal mechanisms for ensuring sustainable use of the commons include:

• statutes and regional ordinances,
• state or cooperative administrative oversight,
• usage restrictions and quotas,
• participation and oversight rights of the entitled users,
• legal protection in the event of disputes or abuse.

Case law recognizes the need for a clear statutory or customary basis that reflects both the rights and duties of community members.

Practical Relevance and Current Significance

Agriculture and Forestry

Particularly in communities in southern Germany, Switzerland, and Austria, there are still numerous forms of commons today, such as real communities or agricultural collectives, in which entitled users (mostly landowners) collectively regulate ownership and use.

Water Law, Fisheries, and Other Fields of Application

Collective rights still exist in water law and fisheries in many places, which can be traced back to historic common uses, for example, water and fisheries cooperatives.

New Commons (Digital Commons and Common Property Law)

With digitization, concepts of the commons are gaining new significance, for example, in relation to open-source software, free access to data, and digital resources, which are classified as ‘digital commons’ or ‘new commons’.

Summary

The commons is a legally significant institution both historically and today, regulating collective ownership and the joint use of certain resources. Legally, the commons is characterized by complex usage rights of community members, whose legal structuring is often regulated by statutes, customary law, and increasingly by special laws. Protection mechanisms and governance structures are necessary to prevent overuse and ensure the sustainable use of shared resources. The concept remains relevant in various areas of modern law and resource management and is constantly expanding through new fields of application.

See also:

• Common Property
• Cooperatives
• Property Law
• Resource Protection and Sustainability
• Commons and Digital Commons

Frequently Asked Questions

What rights and duties arise for users of a commons under German law?

Users of a commons, which in a legal context is often referred to as common land, community, or cooperative land, have specific usage rights typically governed by local customs, historical rights, or statutes (e.g., in municipal bylaws, cooperative bylaws, or property law). The rights often include the right to graze, gather wood and firewood, use litter (leaves, grass, bedding), or draw water. However, these rights are subject to strict limitations: they may not be exercised to the detriment of the common good or result in overuse (protection against overuse is often explicitly regulated by law or by statute). Obligations of users can include contributions to maintenance, care, and monitoring of the commons. Use may also be tied to observing deadlines (e.g., grazing periods), area limitations, or specific management forms. Breaches of these duties may result in sanctions up to the withdrawal of usage rights or civil liability.

Who is, in legal terms, the owner of common lands?

Ownership of common lands can belong to different legal entities. In Germany, municipalities or specific communities (e.g., real communities, cooperatives) are often registered as owners in the land register. In some cases, formal ownership remains with the public sector (federal government, states) or historical foundations, while the usage rights belong to members of a specific group of users (e.g., residents, beneficiaries of the real community). This separation of ownership and use is legally recognized and is often secured by entries in the land register (e.g., easements, community rights). A transfer or sale of the commons generally requires a special regulation and is governed by municipal law, statutory law, or historical contracts.

To what extent is the use of common land subject to public-law restrictions?

In addition to private law and the special regulations of the commons, public-law provisions must also regularly be observed. These include, in particular, nature conservation law, forestry law, water law, and spatial planning law. Thus, common lands can be designated as protected areas and made subject to specific, narrowly defined prohibitions on use or alteration. Usage restrictions may also result from emission control or public welfare compatibility (e.g., noise protection, restrictions on agricultural use). The enforcement of these public-law restrictions is the responsibility of the competent authorities – in the case of changes or special uses, a permit is often required.

How is liability regulated in cases of damage or unlawful use of the commons?

In the event of damage or unlawful use of a commons, those who committed or enabled the act are generally liable. Liability can be civil (damages according to §§ 823 et seq. BGB) as well as give rise to regulatory consequences (e.g., fines, orders by authorities). Moreover, the community may assert internal recourse claims to compensate for damages caused (for example, by overgrazing, illegal removal). Such liability issues are usually regulated in detail in statutes or contracts relating to the use of the commons, for example, through insurance obligations, collective compensation, or assistance with damage remediation.

Can common lands be converted into private property or sold?

The conversion of common lands into private property is possible but subject to strict legal requirements. In Germany, common lands are often historically and legally protected by purpose restrictions, public interest obligations, or special forms of ownership. Sale or conversion generally requires the consent of all entitled users, the municipality, and possibly higher government authorities. Often, this requires de-designation or a change of purpose that must be carried out by formal administrative acts or amendments to statutes. The transfer of ownership is then recorded in the land register. In some cases, common land is also subject to a statutory prohibition on sale.

How are decisions regarding the use and management of the commons made?

Decisions about the use and management of the commons are generally made democratically within the entitled user group or by the holders of the commons (municipality, cooperative). Decision-making is based on statutes, bylaws, or customary law and is often subject to majority decisions (members’ meetings or municipal council resolutions). Management and decision-making powers can also be exercised by specialized bodies such as common land administrations or management committees. Higher authorities have a say, if public-law interests (nature conservation, spatial planning) are affected.

What are the legal particularities regarding the use of commons by third parties?

Use by third parties who are not part of the entitled user group is subject to particularly restrictive regulations. As a rule, the letting or leasing of commons to external persons or companies is excluded or strictly limited in order to preserve the character of the common good. In exceptional cases, temporary use by third parties may be permitted, for example for events, film recordings, or scientific studies – but this usually requires a permit and may be subject to conditions. Compliance with the original purpose of the commons is always mandatory. Violations can be prosecuted both civilly and administratively.