Bundle of Rights Reversed: Anticommons in a Japanese Common Property Forest Due to Legalization

Abstract

Commons studies have emphasized the importance of customary rights and informal institutions, arguing that if there is a gap between formal ownership titles and customary rights, then the latter must be respected. However, as customary practices weaken, the influence of state legal systems and registered titles becomes stronger. When the commons is registered under multiple co-owners’ names, the commoners come to believe that they hold a normal common property and keep these rights even after they leave the village. This phenomenon, called legalization, leads to the tragedy of the anticommons because the number of rights holders outside the village increases. This paper explains the underuse of Japanese common property forests due to this legalization, especially in terms of two points derived from microdata analysis of the 2000 census. First, in the case of multiple co-owners, the number of ex-villagers who keep their rights is very high. Second, when ex-villagers keep their rights and the registered name includes multiple coowners, forestry activities are most infrequent. This paper names this situation “Bundle of Rights Reversed,” in which those outside the community have strong rights to prevent change in forest use, and propose the application of a different legal rule. This framework would be useful for a comparative study on the formalization of commons tenure rights.