Regulatory regimes of rural commons in the Tyrol (~1750-1900)

The terms commons on public lands (Gemeindegut) and commons (Allmende) relate to real estates that are collectively used for predominately agricultural purposes by a certain group of persons (a municipality), which (also) minds public duties and has a territorial substratum. Since the late Middle Ages, fierce conflicts arose relating to the extent to which various parts of the population took part in the Gemeindegut, which often resulted in flexible adaptations by the existing regulatory regimes. The legal development of these regimes that is, the entirety of norms, which regulated admittance to the rural commons as well as the kind and extent of its use is the focus of this research project. Its time period ranges from the middle of the 18th century to the end of the 19th century, and it is situated in historical Tyrol (todays Austrian Federal State of Tyrol along with the current Italian provinces of South Tyrol and Trentino). By around 1750 the state legislature had gradually turned towards a standard Gemeindegut; by 1900 there was a unified Austrian legal framework, which left no more room for either autonomous settings of norms on the municipal level or customary legal regulations of use. This project, apart from establishing the corresponding regulatory regime for the Gemeindegut, will focus in particular on related legal argumentative strategies: How were the endeavours to exclude certain groups of municipal residents from the use of the public common lands or to include them legitimized, and what corresponding significance could therefore be attached to the concept of private property? The study will examine the topic discourse from both a legal (jurisprudential) point of view and, based on archival records, an internal one. Key in this context is to address why in Tyrol the commons were not transferred into the private property of those entitled to it: in contrast to most other contemporary European regions. Furthermore, we will analyse the at times very intensive and conflict- prone processes of implementing the rules of use, based on selected examples, and point out strategies that local actors used to assert their interests.

Regulatory regimes of rural commons in the Tyrol (~ 1750-1900) Rural commons are a historical constant in the area of the old Princely County of Tyrol. They were not eliminated by attempts at partition and privatisation as in other regions. Nevertheless, the legal history of such forms of land use is complicated: Even in the 21st century, relevant problems of interpretation led to disputes before the Austrian Constitutional Court and to heated debates in historiography. The aim of the research project was to analyse the development of the legal regime of such estates during the important transformations in the 18th and especially in the 19th century. At a time when Tyrol was experiencing fundamental social, legal and political changes, communal property became a field of tension between state reforms and local legal customs, as well as the object of many legal disputes. The Imperial Resolution of 6.2.1847 abolished the princely Allmendregal and allowed the division of forests between individuals, communities and the State. Archival sources allow a detailed analysis of these "forest assignment" (Waldzuweisung) in the political district of Brixen. Between 1847 and 1854, the Crown's treasure signed over the ownership of East and South Tyrolean forests to the municipalities ("politische Gemeinden") and to the so called "Gemeindefraktionen". As a legal transplant from the Napoleonic legislation, these Gemeidefraktionen, still disputed in research today, can be explained as former communities which retained their own properties and exclusive rural commons. For the sustainability of the use of their resources, the peasant communities had developed their own rules for participation in use: in most cases it depended on the ownership of an "entitled" household; in the South of the country, it was an inherited privilege of local families. The revolutionary "resident principle" (Einwohnerprinzip) introduced by the French and some provisions in liberal laws regulating (political) communities (Gemeindeordnungen) challenged these rules and seemed to support the claims of the excluded classes concerning full legitimate use. Those entitled to use the commons tried to defend their exclusive position as the result of co-ownership by usucapio; when this solution rooted in private law was not possible, they shifted the debate to the interpretation of the "old practice". Even after the Tyrolean Gemeindeordnung came into force in 1866, the right of use remained governed by customary law, whose judicial interpretation proved to be particularly conservative. Further results of the investigation are the importance of the historical role of the state as administrator and co-interested legal subject - up to now underestimated by economical and institutional research models - and the distribution of common lands in today's Bundesland (province) of Tyrol: commons are most frequent in the west, compared to peasant co-ownership dominating in the east.