Theoretic [vol.2:79 The Dynamic Analytics of Property Law B Commons Property C State Commons property has been the residual category that theorists usually use when they describe a regime that is not private or state property. Michelman State property, also sometimes called collective property, can be defined as a property regime in which defines a commons property regime as one where "there are never any exclusionary rights. All is privilege. People are legally free to do as they [i]n principle, material resources are answerable to the needs and wish, and are able to do, with whatever objects(conceivably including in the [commons]. "9 To restate, this definition n purposes of society as a whole, whatever they are and however they means that every are determined, rather than to the needs and purposes of particul individual may use any object of property and no individual has the right to individuals considered on their own no individual has such an intimate association with any object that he can make decis Although this is not the place to elaborate the point, a useful distinction without reference to the interests of the collective 2 Ons about its use could be drawn between the utilitarians'image of commons property and the liberals notion of a State of Nature: the two images share a core definition As Jeremy Waldron notes, a state property regime is similar to commons everyone has privileges of inclusion and no one has rights of exclusion property in that no individual stands in a specially privileged position with but have different emphases and contexts. Liberal property theorists usually regard to any resource, but is distinguished from commons property in deploy the State of Nature image to describe a pre-political common that the state has a special status or distinct interest- that of owner of which then evolves towards private property; while the commons metapho all resources, able to include or exclude all individuals according to the of modern law-and-economists reflects their goal of explaining the marginal rules of that particular state.2 In other words, the collective, represented evolution towards private property in specific scarce resources, such as the usually by the state, holds all rights of exclusion and is the sole locus of enclosure of the English commons. For all these scholars, the transition decision-making regarding use of resources. So, a subsidiary set of questions commons to private property is the paradigmatic problem that property need to be answered to specify a state property regime fully, including what seeks to explain. is the"collective interest"and what procedures will be used to apply that conception to a particular case Today, for most property theorists, state property has become a less and less important category, particularly since the decline of socialist states and rise of the worldwide movement towards privatization. 4 For liberal, communitarian, and utilitarian theorists alike, the trilogy may elman, supra note 4, at 5. effectively reduce down to a dichotomy private and commons -so 20 See Waldron, supra note 4, at 329(many philosophers have used the idea of that all theoretical work takes place in the interplay of these two regimes common property to characterize the initial situation of men in relation to resources For example, Michelman says that a commons can be seen as"a scheme in the so-called"State of Nature"); see, e.g, Blackstone, supra note 2, 88 2-8: 2 John Locke, Two Treatises of Government at ch. V( Peter Laslett rev. ed. 1963) of universally distributed, all-encompassing privilege that is opposite to (3d ed. 1698)(Of Property), Rose uncovers the contradictions that these narratives obscure in moving across the commons/private boundary, Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 22 Waldron, supra note 4, at 328-29, 329 n 45 2 Yale J. L& Human. 52 (1990) sO C.B. MacPherson, Property ee, e. g, Terry L. Anderson pJ Hill, The Evolution of Property Rights: A Study Mainstream and Critical Positions 5-6(1978)(substantially the same definition of tate property) of the American West, 12 J. L. Econ. 163( 1975)(westem land); Harold Demsetz, 23 Waldron, supra note 4, at 329 Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347, 354(1967)( fur trappers); H. Scott Gordon, The Economic Theory of a Common-Property Resource 24 Property theorists always recognize that any actual regime will contain all elements The Fishery, 62 J. Pol. Econ. 124(1954); D. Bruce Johnsen, The Formation and of the trilogy we have identified, but they maintain the distinctions among the types Protection of Property Rights Among the Southern Kwakiutl indians, 15 J. Legal See, e.g., Robert C. Ellickson, Property in Land, 102 Yale L.J. 1305, 1381, 1381 tud. 41( 1986)(potlaching): Arthur F. McEvoy, The Fisherman's Problem(1986) n342(1993)(noting that large U.S. cities devote about 25% of developed land to fisheries); John Umbeck, A Theory of Contract Choice and the California Gold a ghways and streets and 10% more to public parks); see also id. at 1397 n413 Rush, 20 J.L.& Econ. 421(1977)(gold fields) ommenting that both law-and-economics and critical legal scholars have come to share the view that land regimes inevitably will(and implicitly should)mix private and public elements)