Commons Law

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History

  • "Until the Justinian Code in Rome in 6th century AD—the first State decree to defend

the rights of the commons—there is no evidence of governmental protection for common-pool resources from the encroachment of private ownership."

- James Quilligan [1]


Discussion

Tommaso Fattori:

"We also need a more general recognition and a flexible system of legal protection for commoning activities and for the products of collective creativity: the state and institutions must take an active role in supporting commoning and to support the creation of new Commons.

This active role must translate into forms of public-common partnership, where the institutions enable and empower the collective/social peer-creation of common value. Governments could also provide seed funding, incentives and grants for Commons and commoning, just as it currently provides research and development support and assistance to businesses and corporations.

The drafting of one of more Charters of Commons must offer a broad range of forms of protection, which would go for example from the definition of special statutes for the safeguarding of biodiversity or of traditional knowledge to laws defending the collective interests of digital communities. At the same time a series of legal tools aiming to keep the results of collective creation under the control of the collectivity which produced them have been built and invented by the commoners themselves, for example by altering the legal tools which were originally designed to protect private property, redirecting them towards the protection of Commons, as has been the case with GPL and CC licenses, the product of a transformation and a turning onto their head of the logic of laws governing copyright.

The legal recognition of the sphere of Commons must lead to a delegation of authority and power by the state to commons-based institutions. That is to say, the constitution of self-regulating commons-based institutions must be authorized, protected and legally recognised (starting with the recognition of those which already exist.), through which commoners can protect, produce and reproduce Commons and common value.

Current debates (and experiments) focus on Trusts, Foundations, for-benefit institutions etc. Commons trusts are normally considered legal entities responsible for protecting shared assets, and which have a fiduciary duty to preserve natural and material commons - such as natural systems, water, air, land, and biodiversity - and to protect, regenerate or create social, cultural, digital and intellectual Commons, such as Wikipedia and the Internet itself. Such trusts can be located either inside the boundaries of one state or be trans-border, according to the size and range of the resource and/or of its relative community of interest. Finally, it is probably not sufficient to stop at meta-institutions designed to preserve and protect the common destiny of a Commons over time and prevent its alienation. Just as it is true that commoning normally produces use value which cannot be accounted for in monetary terms (values which are part of the range of positive social or environmental externalities) one should construct a special legal form which could recognise and protect a similar type of enterprise or “project” (a common social enterprise) and protect a similar form of production of use value of collective use, which will help build another type of economy."

More at: Towards a Legal Framework for the Commons



Commons Law regarding Common Land in England

As pertaining to Common Land in England, from the Wikipedia:

"The legal position concerning common land is confused. Most commons are based on ancient rights which pre-date the established law and even the monarchy. The exact rights which apply to individual commons may be documented but more often are based on long-held traditions. The UK government tried to regularise the definitions of common land with the Commons Registration Act 1965, which established a register of common land. However numerous inconsistencies and irregularities remain.

Prior to the Erection of Cottages Act 1588, an Englishman could build his house on common land, if he could raise the roof over his head and have a fire in the hearth between sunrise and sunset, and claim the dwelling as his home.

Registered commons often abut each other, so what may appear to be a single large common may in fact consist of several commons with no visible boundary between them — these may for example be in different parishes. The commoners will have reciprocal rights over each other's commons.

The maintenance of fences around a common is the responsibility of the occupiers of the adjacent enclosed land, not (as it would be with enclosed land) the responsibility of the owners of the grazed livestock. This can lead to difficulties where not all adjacent occupiers maintain their fences properly.

The act of transferring resources from the commons to purely private ownership is known as enclosure, or (especially in formal use, and in place names) Inclosure. The Inclosure Acts were a series of private Acts of Parliament, mainly from about 1750 to 1850, which enclosed large areas of common, especially the arable and haymeadow land and the better pasture land.

It is often thought that a common is somehow owned by everyone, or at least by the community in some sense. While that may have been true more than a thousand years ago, when waste [disambiguation needed] would be used for grazing by the local community and over which there would not be, nor would there need to be, any particular limit or control of usage; since at least late Anglo-Saxon times, the right to exercise a right of common has been restricted to a commoner.

The use of commons rights were carefully controlled, and so in practice commons did not usually suffer from the tragedy of the commons. For example, in response to overgrazing a common would be stinted, that is, a limit would be put on the number of animals each commoner was allowed to graze. These regulations were responsive to demographic and economic pressure — rather than let a common be degraded, access was usually restricted even further.

Commons are often crossed by public roads, and this leads to another problem on modern pasture commons where grazing survives (or is to be reintroduced). Historically, the roads would have been cart-tracks, and there would have been no conflict between their horse-drawn (or ox-drawn) traffic and the pastured animals, and no great difficulty if pastured animals wandered off the common along the roads. However, these roads now have fast motorised traffic which does not mix safely with animals. To continue (or restore) grazing, such roads may need fencing or at least blocking at the edge of the common with cattle grids — however permission for fencing on a common is a bureaucratic process which can be interrupted or prevented by objectors (see neglect of commons below).

Some commons are managed by Boards of Conservators for the wider public benefit. The Commons Act 2006 provides for the establishment of Commons Councils to manage common land. Those provisions of the Act are not yet in force, but the Department of the Environment, Food and Rural Affairs (DEFRA) plans to bring them into force in the spring of 2009. The Commons Councils established under the Act will have a similar role to that of existing Conservators.

Royal Forests are legally separate from ordinary commons, but most have a similar commoning system." (http://en.wikipedia.org/wiki/Common_land)


More Information

  1. Towards a Legal Framework for the Commons
  2. Public - Commons Partnership and the Commonification of that which is Public