How have community property rights developed historically?

Early colonial law treated community lands, largely held by indigenous peoples, as land belonging to nobody, or terra nullius. Any land that stood uncultivated, or untitled by European standards, lay open to whichever outsider chose to claim it. The doctrine of discovery let European powers dispossess indigenous people of their traditional lands and claim title over them. Colonial administrators assumed that indigenous communities held no property rights at all, largely because those communities used land collectively rather than through individual title, and this pattern of dispossession played out across the Americas, Australia, much of Africa, and the Indian subcontinent.

The economic argument for individual property rights largely echoes this colonial treatment of indigenous people. The “tragedy of the commons” argument holds that when a resource sits under collective ownership without clear governance rules, each individual gains an incentive to overexploit it at the collective’s expense. Classical liberals offer clear individual title as the solution, converting common property into private property to fix the incentive problem. That argument ignores both the social and cultural dimensions of community land holding and a community’s own ability to govern itself effectively.

By the mid-twentieth century, international law had evolved to recognise community and customary indigenous tenure as a genuine form of property, not merely as occupation of land by a people living on it. A state could no longer impose a Western title system to extinguish rights indigenous communities had already held for generations.

Elinor Ostrom’s empirical research overturned the tragedy-of-the-commons assumption directly. Communities across the world have governed their own commons successfully for generations, through locally crafted rules, monitoring, and graduated sanctions, without needing top-down state control or full privatisation. Collective property need not end in tragedy. It requires, instead, governance institutions that function well and rest on the rule of law.

In the debate between individual and community rights, liberal states should recognise and protect community property rights under law, rather than pushing to individualise them entirely. Insecure or unrecognised community rights remain just as vulnerable to expropriation by a state or an elite as unclear individual title does.