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«Emergence of Endogenous Legal Institutions: Property Rights and Community Governance in the Italian Alps MARCO CASARI This article examines changes ...»

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Governance Regimes There is abundant anecdotal evidence in the charters about the communal property of forests and grazing land. Quantitative evidence can be found in the 1780 Land Registers. Although a systematic analysis of this source has not yet been carried out, micro-level data from two very different communities show a clear pattern (Figure 3). First, almost all forest and a large portion of meadows and pastures were communal property (100 percent, 95 percent and 60 percent, 66 percent, respectively). Second, only a small portion of arable land was communal property (27 percent, 8 percent) while the remaining was private property.

This study will focus on land under communal property, which is mostly used as forest and high mountain meadow. More specifically, we focus on the choice between informal enforcement and private-order governance in the management of communal property. We do not investigate why communal property was chosen instead of private property and assume that this choice was exogenous. Although such an assumption simplifies the analysis, it is clearly a limitation of the present study. A possible reason for the exogeneity could be a legal constraint imposed by the feudal authorities in selling or dividing the communal land, or otherwise preventing changes to a possibly more efficient management regime. Giampaolo Andreatta and Silvio Pace argue that the communal land was inalienable and some charters explicitly mention a feudal authorization when selling the communal land.35 Although this reason may carry some weight, communal land could be sold. There are documented transactions that involved contracts to sell common property land to an individual and examples of division of the common property land among the community members resulting in its conversion into private property.36 Another possible reason for exogeneity could be the constraints imposed by the local topography combined An informal enforcement toward outsiders resembles to the community responsibility system discussed in Greif, Institutions, chapter 10. He argues that the system was employed to enforce trade transactions among merchants of distant cities.

Andreatta and Pace, Trentino. See Cagnò, 1587, c. 3 (modification of 1693). An example of restriction was the prohibition to sell land whose revenues were taxed to people that were exempted from tax payments.

Dossi, Le pergamene and Un antico ruolo. See also footnotes 46 and 51.

Emergence 203

–  –  –

Notes: A = Levico (larger community, in the bottom of a valley), Goio, “Ambiente economicosociale.” B = Predazzo (medium-size community, in a high mountain valley), Varesco, “Ambiente economico-sociale.” Individual ownership includes estates owned by clergy, parishes, and feudal landlords. Elaboration by the author.

Original Source: Catasti Teresiani of 1780–90, Archivo di Stato di Trento.

with the available production technology. As already mentioned, arable land accounted for only 8 percent of the regional surface in 1897 because in a mountain environment the surface suited for vineyards, grains, and fruit trees was extremely limited by the quality of the soil, the altitude, and the steepness of the land. Other Italian regions with a mountain landscape had similar problems.37 The high specific value of these crops made it worthwhile to enforce private property on the land.

Moreover, the high labor input prior to the harvest season necessary for crops on arable land gave private property a clear advantage.38 Given that there existed communal property as a mode of ownership, there was risk of tragedy of the commons. This article studies the emergence of alternative governance regimes that could solve the social dilemma generated by the communal property.

State enforcement of property rights was problematic. The Principality of Trento had a court system to protect property rights. When the isEpstein, “‘Italy’.” Netting, “Of Men” and Balancing on an Alp; and Casari, “Property Rights Arrangements” consider possible reasons for the persistence of communal property on forests and pastures. See also Anderson and Hill, “Evolution,” for a classic article on the rational for communal property.

Casari sue involved high stakes, such as the demarcation of property borderlines between communities, there is evidence of state justice involvement. The archives contain several documents about border disputes, mostly regarding communal property issues between neighboring communities.39 The use of state courts for many other controversies was often impractical because of their high costs relative to any smaller matters, such as a stolen tree.40 With such decentralization of powers, the central political authority could avoid the costs and the troubles of handling the small conflicts among peasants, while maintaining a firm control of criminal justice and of any economic controversy of relevant amount.41 According to Mauro Nequirito, the state had neither the willingness nor the interest to micro-enforce property rights for the peasants; hence, villagers were mostly left to fend for themselves to enforce property rights on the common land and could either adopt informal mechanisms or private-order institutions.42 Another issue to clarify before proceeding further is that forests and pastures in Trentino were common property and not open access resources. As a rule, only pater familias that were members of a community (vicini) could use the communal property, and this right was inherited from father to son. Although all the people who were permanently living in the community could generally harvest the resources under communal property, the decision powers were in the hands of one representative for each family, which was usually a mature male.43 Outsiders (forestieri) were excluded from the use of communal resources, even when they lived in the community.44





Stable Communities

Villagers stayed in the same community for generations. A comparison over time of last names of pater familias within the same communities shows a remarkable stability.45 The common land was shared The main archives are Archivio di Stato di Trento, Ferdinandeum Museum of Innsbruck, and the Archivio di Castel Bragher.

Welber, Riflessioni.

An example of intervention to limit the powers of the peasant assemblies is given by the Moderatio Betta, a resolution elaborated by Prince bureaucrats in 1586 and systematically imposed on local communities.

Nequirito, Le carte de regola.

The family could be represented by a widow, if her children were still too young. It is conventionally assumed that a pater familias represents on average four other people.

Examples of forestieri were the residents of neighboring communities, seasonal workers living in the village, occasional travelers. Similar systems were adopted in other regions of Europe (Popkin, Rational Peasant).

There was limited mobility of males across communities as it is evident from the list of participants to the general community meetings. A comparison of last names at intervals of one Emergence 205 among people of the same community, which was mostly limited to one village. According to the folk theorem, when a stable group of people is engaged in an infinitely repeated interaction, informal cooperation could emerge in the use of the communal resources.

Admission into and departures from the community were limited by the peculiar structure of property rights on the land. A person became an insider either by inheritance from his father or by the approval of the insiders’ assembly. Interestingly, a person could not become an insider by buying a fraction of the communal property from an existing insider because such trading with outsiders was not allowed. Selling communal land was always a collective right that belonged to the community as a whole. Moreover, an alienation decision required the consent of a supramajority of the community.46 An outsider could petition the villagers to become an insider. The villagers generally tried to screen out candidates whom they did not believe were trustworthy and would sometimes ask prospective residents for convincing proof of decency and of an honest life.47 Also, to admit a new user, a supramajority consensus was required.48 Upon admission, the newcomer had to pay an annual fee. Such fees were usually assessed on a case-by-case basis and were in proportion to the expected use of the forest and pasture, depending on the size of the family or on the number of animals owned.49 Admitting additional users to the common resource meant giving away a share of the community claims on the resource profits.50 Inor two centuries could be used as a proxy for mobility. The reason is that, first, most last names are village-specific; second, both membership rights and last names were transmitted through male lineage. Last name lists reveal little change within each community. This proxy is not perfect because a family name can also disappear from natural death, especially in the long run, and new last names can emerge as modifications of old last names.

A qualified majority of at least two-thirds was required to sell the common land in Cles 1641, c.5 and in Cis 1587, c.80.

Cles, 1641 (modification 1719, c.2), “attestati autentici della sua buona vita et costumi.” In addition to requiring the prospective member to give good references about his reputation, Nago and Torbole required some form of real warranty in case of misbehavior. For instance, see Nago and Torbole, 1647 (modification 1670, c. 72): outsiders cannot stay in the village for more than three days unless they own a piece of land or a house (stabili) worth at least 200 fiorini. No outlaw could be accepted (banditi or ricercati).

Not all charters described the admission procedure. Three examples are Cis, 1587 (all but three dissenters), Cles, 1641, Tres, 1551 (unanimity required in 1599).

For example Cles, 1641,c.57: “Che li forestieri habitanti nella communità di Cles siino colettati dalla regola per l’honesto in loro arbitrio, considerando la loro qualità et animali che tengono sopra li comuni, et in più concorrino ad ogni cosa ordinaria et straordinaria come li vicini,....” See also Tres, 1551 and following modifications.

The existing users wanted not only to have a say about the admission decision but also to be compensated for the reduction in their share of resources. In corporate law, this right is analogous to the right of shareholders to deliberate about the issuance of new preferred shares and decide about their price. Formally, when all users appropriate the resource at the same rate, the addition of a new user to a group is equivalent—for the original N agents—to alienate at least a 1 / (N + 1)th of the value of the resource. When the group is informally cooperating, the Casari terestingly enough, in 1671 the assembly of the community of Cis stated —in the very same article of their charter—that admitting a new member had to be deliberated with the same majority as the one adopted for selling the common land.51 Exiting the community was possible but costly because it involved losing the social support of the community and losing the right to use the common land. An insider could sell his individually owned house and fields but not his share in the community land. According to current property laws in civil law countries, if three people own a piece of land in common and one of them wants to get out of the estate for no reason, he or she has the right either to sell his part to anyone or to be refunded by the other two. The arrangement in the north Italian communities was rather different.52 While away from the community, the insider could no longer use the common resources. The right to return was also restricted. Regulations differ locally, but generally involve the temporary or permanent suspension of benefits upon return and other punishments.53 All these regulations on community membership and trading restrictions on the common land had the purpose of locking-in insiders in a long-term relationship.

In a charter, typically only a small part of the regulations concerned specifically outsiders (forestieri). Most articles of a charter were for “everyone” or directed toward insiders. The remainder of the section is devoted to the latter.54 Monitoring and Coordinating Once insiders face a continuing relationship, informal cooperation can be sustained provided that each insider can monitor the cooperasame group surplus is divided into N + 1 parts instead of N. When the outcome is the Nash equilibrium solution, a lower group surplus is divided in N + 1 parts.

See the modification to Cis, 1587, c.80: “... alienare beni comunali o ricevere alcuno forestiero per vicino se meno di 3 vicini son contrari” (any group of three or more insiders could veto the decision).

No charter ever mentions the right of an insider to be refunded the value of his share of common land in case he leaves the community, let alone the procedures to satisfy that right, but they prohibit the trading of rights to membership.

From Statuti et Ordini della Spet. Communità di Nago e Torbole (1683): Nago and Torbole, 1647: “Cittadini, che non habitaranno non possino goder beni communi” (c.73: They cannot bring timber outside the village borders; they can use the common land only if they still have individually owned land in the village). “Cittadini, che partono dal commune, et ritornano, che non possino goder beni communi, se non passato un anno” (c.74). Similar rules can be found in the charters of other communities, for instance Tres, 1551 (the 1599 modifications regulates the insider status) and Casez, 1632, c.45.

As we will see in the Empirical Analysis section, the absence of contagion effects from the neighboring communities in charter adoption may also suggests that the main concern was more of restraining resource use of insiders than stopping trespassing from outsiders.

Emergence 207 tion level of the others (informal enforcement). The available evidence suggests that monitoring was imperfect. This is puzzling at first considering the small size of communities. In 1810, about 80 percent of the communities had fewer than 1,000 inhabitants. Moreover, considerable information about insiders’ actions was freely acquired as a byproduct of daily activities. Still, there was underprovision of information in relation to the socially optimal level.



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