Category:Law and the Commons Project

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David Bollier:

"This wiki contains resources on the history of commons-based law and emerging legal innovations that seek to empower commoners and protect commons. Historically, commons have had a problematic relationship with conventional law, which generally reflects the mindset and priorities of the sovereign (monarch, nation-state, corporation) and not the lived experiences and practices of commoners. Still, in grappling with political, economic and legal realities, commoners often find ways to secure control over their common wealth, livelihoods and modes of commoning. Often, they may entail working arrangements with the law.

Such a struggle is one factor that led to the Magna Carta and Charter of the Forest in the early thirteenth century. It is also what is spurring many commoners today to invent creative new types of law – formal, social, technological – to protect their shared interests, assets and social relationships. This wiki is intended as an introduction to key documents in the history of Law for the Commons, and as a survey of some of the more notable initiatives to invent contemporary forms of commons law in a variety of contexts and locations.

David Bollier [1] of the Commons Strategies Group prepared the initial curation of documents (August 15, 2015), identifying key clusters of commons-law activity and relevant literature and websites. He also compiled the listings below. They were augmented and placed on this wiki by Michel Bauwens, founder of the P2P Foundation and co-founder of the Commons Strategies Group, in collaboration with Stacco Troncoso of Guerrilla Translation."

Introductory Bibliography

Law for the Commons: Premodern Sources

The ancient Romans were the first society in recorded history to have made explicit laws regarding distinct categories of property, including common property and other categories of things that should not be privately owned. In 535 CE, the Codex Justinianus, or Institutes of Justinian, details the legal divisions of things, which included res communes, or things owned in common to all such as the seashore and rivers. This was the first known legal recognition of the commons. Other categories of things that cannot be privately owned included res publicae, or things that were crated by public authorities such as buildings and theaters; and res sacrae, or things that are sacred and dedicated to the service of God and cannot be sold or mortgaged.

The Magna Carta, or “Great Charter,” is often cited as one of the foundations of Western civilization because it enshrined the rule of law as a cornerstone of governance, limited the power of the sovereign and recognized specific rights and liberties of citizens. The “Great Charter,” which King John agreed to in 1215 after years of brutal armed conflict with feudal barons and commoners, is widely regarded as a source for legal principles such as habeas corpus, trial by jury, and the prohibition of torture. The document is less widely known as guaranteeing a right of access to commons, as set forth in a companion document, The Charter of the Forest.

See also:

- Peter Linebaugh book, The Magna Carta Manifesto: Liberty and Commons for All (University of California Press, 2008). Pdf file. [4]

- The BBC four-part radio series, “The Legacy of Magna Carta,” hosted by Melvyn Bragg. [5]

The Charter of the Forest was adopted in 1217, two years after Magna Carta, by King Henry III, the son and successor of King John (1166-1216). The Charter of the Forest formally recognized the vernacular traditions and practices (“laws”) of English commoners – that is, their traditional rights of access to and use of royal lands and forests. The document enumerates specific subsistence rights to the forest such as pannage (pasture for pigs), agistment (grazing of cattle), estover (collecting of firewood), and turbary (cutting of turf), all of which were considered elemental, traditional entitlements of commoners. The Charter of the Forest was later incorporated into Magna Carta and considered an integral part of it.

See also:

An excellent overview of the Charter of the Forest can be found in Peter Linebaugh’s “The Secret History of the Magna Carta,” in the Boston Review. [7]

Raymond Williams, “Enclosures, Commons and Communities,” in The Country and the City (Oxford University Press, 1973), pp. 96-107. Google version

From 1776 to 1825, the English Parliament passed more than 4,000 Acts that served to appropriate common lands from commoners, chiefly to the benefit of politically connected landowners. These enclosures of the commons seized about 25 percent of all cultivated acreage in England, according to historian Raymond Williams, and concentrated ownership of it in a small minority of the population. These “lawful” enclosures also dispossessed millions of citizens, swept away traditional ways of life, and forcibly introduced the new economy of industrialization, occupational specialties and large-scale production. “The many miles of new fences and walls, the new paper rights” – and the many “great houses” that came to dominate the rural landscape – “were the formal declaration of where the power now lay,” writes Williams.

Gerrard Winstanley (1609-1660) was an Protestant reformer during Oliver Cromwell’s rule who agitated for the commons and land redistribution through a group known as the True Levellers (or “Diggers”). To protest enclosures of land, Levellers occupied the land, knocked down hedges and filled in ditches meant to mark off private property boundaries, and grew crops that they distributed for free to other Levellers. Winstanley’s was a commons advocate who commanded a following through ringing declarations that are still quoted today, such as “The power of enclosing land and owning property was brought into creation by your ancestors by the sword; which first did murder their fellow creatures, men, and after plunder or steal away their land, and left this land successively to you, their children.” And: “In the beginning of Time, the great Creator Reason, made the Earth to be a Common Treasury, ... but not one word was spoken in the beginning, That one branch of mankind should rule over another.”

See also:

Law for the Commons in our Time

David Bollier:

"Historically, most commons have not needed nor sought formal protections of law. Their self-organized customs, socially negotiated rules and relative isolation from outside capital and markets, were enough to sustain them. This has changed dramatically over the past 30-40 years, however, as global commerce, technology and conventional law have relentlessly expanded, superimposing the logic and values of markets on nearly every corner of the nature and social life.

These trends have spurred commoners around the world to devise a wide variety of “hacks” around conventional law to protect their access and use of shared resources. These include adaptations of laws dealing with contracts, trusts, co-operatives, municipal government, copyright, patents, and other bodies of law, which in each instance aims to protect common assets and the social practices of commoning. One might say that this experimentation is producing a new, not-yet-recognized body of socio-legal-political innovation, Law for the Commons.

A longer treatment of this subject can be found in David Bollier’s memorandum, “Reinventing Law for the Commons.” Below are a select group of materials about commons-based legal innovation in nine distinct clusters: indigenous commons, subsistence commons in the global South, digital commons, stakeholder trusts, co-operative law, urban commons, localism, new organizational forms, and re-imagining state policy to empower commons."

Clusters of Contemporary Commons Law

1. Indigenous Commons

The legal rights of the world’s 300 million indigenous peoples is of particular interest to commoners because both face similar philosophical and strategic challenges in coming to terms with (unresponsive, sometimes hostile) national and international law. In that sense, the legal fights of indigenous peoples may be a bellwether for commoners and a source of guidance.

Biocultural Rights

Biocultural rights represent a new legal jurisprudence that aims to protect natural ecosystems and indigenous knowledge and ways of life, especially from the threats of trade treaties. The rights – based on the 1993 Convention on Biological Diversity, which has been ratified by 193 nations – have been developed by legal advocates such as Natural Justice in South Africa to give legal protection to a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape. This bold departure in human rights law seeks to validate community-led instruments for recognizing and supporting “ways of life that are based on the sustainable use of biodiversity, according to customary, national and international laws and policies.”

See also

A major international effort to facilitate “fair and equitable exchanges” of indigenous knowledge and culture is directed by the Intellectual Property Issues in Cultural Heritage (IPinCH) research project, an international collaboration of archaeologists, indigenous organizations, lawyers, anthropologists, ethicists, policy makers, and others. Based at Simon Fraser University in British Columbia, Canada, IPinCH explains that its focus is on “archaeology as a primary component of cultural heritage; however, this project is ultimately concerned with larger issues of the nature of knowledge and rights based on culture – how these are defined and used, who has control and access, and especially how fair and appropriate use and access can be achieved to the benefit of all stakeholders in the past.” The project includes fifty researchers and twenty-five partnering organizations from Canada, Australia, United States, New Zealand, South Africa, Germany, England, and Switzerland.

The Potato Park in Peru is a sui generis legal regime that empowers indigenous Quechua indigenous peoples in an area near Cusco, Peru, to act as stewards of a rich biodiversity of more than 900 genetically distinct potatoes that they have managed for millennia. The Quechua joined with a nonprofit group ANDES in the 1990s to develop a legal regime to recognize the Indigenous Biocultural Heritage Area (IBCHA). This consists of 12,000 hectares of traditional lands that the Quechua regard as essential to the agrobiodiversity of the region and to conserve their traditional culture, knowledge and livelihoods. Besides assuring a community-led and rights-based approach to conservation (rather than market development), the Potato Park seeks to prevent biopiracy of genetic knowledge by agro-biotech corporations. Although the Potato Park does not have state recognition within either Peruvian national law of the International Union for the Conservation of Nature, the IBCHA agreement is legally compatible with existing systems of national and international law, and is seen as an inspiration for similar projects to protect agrobiodiversity in the Andes. The IBCHA agreement does empower the Quechua societies to control scientific studies in the region and the Potato Park database can be used to thwart patent applications for indigenous medicinal plants and knowledge.

See also Alejandro Argumedo, “The Potato Park, Peru: Conserving Agro-Biodiversity in an Andean Indigenous Biocultural Heritage Area,” in Protected Landscapes and Agrobiodiversity Values, ed. Thora Amend et al. (Gland, Switzerland: International Union for the Conservation of Nature, 2008), 45-58.

2. Subsistence Commons in the Global South

There are many subsistence commons (not necessarily managed by indigenous peoples) that rely upon self-governed access and use of forests, fisheries, farmlands, coastal lands, bodies of water, wild game, and other natural resources. An estimated two billion people around the world depend on natural resource commons for their everyday (nonmarket) needs, according to the International Land Alliance. [8] But since these commons do not generally involve market activity and do not contribute to GDP, they are ignored by conventional economists as insufficiently interesting or as a deficiency to be remedied by “development.”

It is important to protect subsistence commons from enclosure as a way to preserve the collective wealth and autonomy of the communities involved; at the same time, it is important to try to improve their governance and functioning. This may require certain legal frameworks or selective, light-touch state support to help regularize self-governance; it may require new types of local dialogues and collaboration to get beyond entrenched corruption, patriarchy and adversarialism.

Subsistence commons in India based on farmland, forests, water and other natural resources have been formally recognized by Indian law as commons. This remarkable fact stems from a landmark ruling by the Indian Supreme Court in 2012 [9] that ruled against a real estate developer whose buildings had enclosed a village pond functioning as a commons. The political and legal repercussions of this ruling are still reverberating in India, but it is symbolically and perhaps substantively an important legal victory for commoners, whose “unowned” land and water have so often been regarded by conventional law as “wastelands.” The Indian commons advocacy group, the Foundation for Ecological Security (Jagdeesh Rao, director), is actively tracking the dozens of judgments and orders about the commons that have since emerged from Indian courts and state governments. (See its biomonthly e-publication, “The Case for the Commons.”) [10]

The Forests Act is one of the more significant legislative acts authorizing commons-based management of forests. The 1997 Act explicitly empowers village panchayats to act as commons-based stewards of forests, an authority that has not been faithfully respected by the government’s Forest Department. Still, many panchayats have mobilized to assert their authority to manage village forests as a more effective traditional method of conservation and stewardship. This has often resulting in conflicts between conventional bureaucratic authority and expertise against village-based participatory governance and local knowledge.

See Soma K P and Richa Audichya, “Our Ways of Knowing: Women Protect Common Forest Rights in Rajasthan,” in the forthcoming Patterns of Commoning (Off the Common Books, 2015).

Legal recognition for land used by subsistence commoners could help save tens of thousands of commons that people have relied upon for generations. These lands – an estimated 8.54 million hectares – are increasing being seized by investors as part of a massive land grab in the global South. Fortunately, there are some efforts to formally recognize customary rights to land use, which, if implemented, could help commoners resist the investor-oriented terms of national laws and international treaties. Liz Alden Wiley, a land reform expert and specialist based in Africa, and others are pushing for legal reforms that do not require property rights in land to be fungible, based on individual ownership, or formally registered in order for land to be recognized as real property – measures that have been adopted by some African and Latin America states.

Wiley has written: [11] “In light of the fact that most allocations to investors are in the form of renewable medium-term leases of up to 99 years, it may be expected that loss of common properties will remove these lands from meaningful access, use and livelihood benefit for at least one generation and potentially up to four generations.” This is a recipe for decades of famine, poverty, political turmoil and additional forms of fossil-fuel-intensive “development.”

For decades the timber industry in the US did great harm to forest ecosystems through the clear-cutting of forests, re-seeding with tree monocultures, and the building of roads – all with the sanction of the US Forest Service. The political and legal hostilities between environmentalists and the timber industry reached a peak in the Pacific Northwest of the US in 1991, when a federal court shut down timber operations in the entire region. In the aftermath, the US Forest Service improbably initiated a remarkable experiment in collaborative governance for the Siuslaw National Forest. As told by the film “Seeing the Forest,” [12] the government abandoned its standard bureaucratic processes, which were generally driven by congressional politics, industry lobbying and divisive public posturing, and instead convened a “watershed council” of the region’s stakeholders. Anyone who was interested could participate. The goal was to manage the forest through an informal process of open commoning, which included a strong advisory role in the allocation of funds, with the Forest Service hovering in the background as the final arbiter. It took many years, but the informal dialogues and pragmatic, consensus-based decisionmaking resulted in a significant restoration of the forest ecosystems and a radically different mindset toward forest stewardship. This history raises an urgent socio-legal challenge: How to adapt formal state law and regulation to authorize new sorts of locally empowered decisionmaking and commoning?

SRI is an agroecological system for improving the productivity of irrigated rice by changing the mix of plants, soil, water, and nutrients. While SRI is not a system of law, it is a self-organized social network of farmers in several dozen countries that has been tremendously empowering and productive. SRI collaborations in cyberspace have helped farmers boost rice yields by 20 to 100%; reduce the seed required by 90%; and reduce water usage by up to 50%. The project is notable for blending the use of online platforms with physical resource management – a trend exemplified by other “eco-digital commons.”

See Erika Styger, “The System of Rice Intensification and Its International Community of Practice,” in the forthcoming Patterns of Commoning (Off the Common Press, 2015).

3. Digital Commons

A recurring challenge for people working on open networks is to find ways to prevent businesses from treating the shared resources of commoners – code, information, images, videos, product design, etc. – as “free” feedstock for their proprietary market machines. For-profit corporations can mobilize enormous capital and other resources to convert socially generated wealth into marketable products and service, essentially privatizing the shared community wealth or at least its market rewards. This is a concern to participants in various digital commons, which include free and open source software, Wikipedia in dozens of languages, more than 10,000 open access scholarly journals, the open educational resources movement (Open CourseWare, Open Textbooks, etc.), the Open Data Movement, various Open Design and manufacturing commons, and others.

A variety of legal and technological innovations are now starting to address the structural limits of open platforms as vehicles for commoning. Below, a brief review of these new commons-friendly legal innovations in digital spaces.

Among the more prominent initiatives: One example of the latter are new systems that democratize the ability of collectives to authenticate digital identity without having to rely on Google, Facebook, and other tech giants who use their power to data-mine people’s personal information. Other examples include digital currencies that enable communities to capture and manage the value that its members create; “Smart Contracts” that enable self-executing contractual agreements on networks; a system of open-source modules of legal boilerplate that can be used on open platforms to minimize the need for expensive lawyers; and data-sharing commons that allow only stipulated usage of shared pools of data.

Licensed based on copyright ownership of a work have a long and respected history in digital spaces. The most notable licenses are probably the General Public License that enables countless free software (especially Linux) to remain freely usable by anyone; and the Creative Commons licenses, created in 2003, which are used in an estimated 85 million digital works around the world. To deal with the corporate appropriation of work from open platforms, the P2P Foundation, working with Dmytri Kleiner, are seriously exploring the idea of “Commons-Based Reciprocity Licenses.” [13]. These licenses would allow no-cost sharing among members of a commons, but require payment by any commercial users of the community’s work. [14].

Unlike the Creative Commons NonCommercial License, which absolutely stops commercial development of a line of information or creative work, the CopyFair License would allow commercialization, but on the basis of mandatory (monetized) reciprocity.

The Blockchain ledger – a software innovation that lies at the heart of Bitcoin – is a breakthrough that could be of enormous importance to the future of commoning on open network platforms. Although Bitcoin itself has been designed to serve familiar capitalist functions (tax avoidance, private accumulation through speculation), the blockchain ledger is significant because it can enable highly reliable, versatile forms of collective action on open networks. It does this by validating the authenticity of a digital object (for now, a bitcoin) without the need for a third-party guarantor such as a bank or government body. The blockchain ledger solves a particularly difficult collective-action problem in an open network context: How do you know that a given digital object -- a bitcoin, a legal document, digital certificate, dataset, a vote or digital identity asserted by an individual – is the “real thing” and not a forgery? Blockchain technology can help solve this problem by using a searchable online “ledger” that keeps track of all transactions (i.e., bitcoins). The ledger is updated about six times an hour, each time incorporating details of the latest transactions (the “block”) into the ledger – a record that is shared by everyone on the network using the Bitcoin software. The ledger acts as a kind of permanent record maintained by a vast distributed peer network, which makes it far more secure than data kept at a centralized location. The authenticity of a given bitcoin is assured because it’s virtually impossible to corrupt a ledger that is spread across so many nodes in the network.

See also:

A recently released report suggests that blockchain technology could provide a critical infrastructure for building what are called “Distributed Collaborative Organizations” (sometimes “Distributed Autonomous Organizations”). These are essentially self-organized online commons. A DCO could use blockchain technology to give its members specified rights within the organization, which could be managed and guaranteed by the blockchain. This set of rights, in turn, can be linked to the conventional legal system to make those rights legally cognizable.

One rudimentary example of how the blockchain might be used to facilitate a commons: former FCC Chairman Reed Hundt in the US has proposed using blockchain technology to create Distributed Networks of Solar Power on Residential Houses Coordinated as Commons. The ledger would keep track of how much energy a given homeowner generates and shares with others, and consumes. In effect the system would enable the efficient organization of decentralized solar grids and a “green currency” that could serve as a medium of exchange within Solar Microgrids or networks, helping to propel adoption of solar panels. The blockchain amounts to a network-based architecture for enabling commons-based governance.

See also

    • Morgen E. Peck, “The Future of the Web Looks a Lot Like Bitcoin,” [18] IEEE Spectrum, July 1, 2015.

A more generic aspect of this field of blockchain-related experimentation is smart contracts. These are dynamic software modules that may soon enable new types of group governance, decision-making and rules-enforcement on open network platforms. We are already familiar with rudimentary – and corporate-oriented versions – of this idea, such as Digital Rights Management (DRM), an encryption/authentication system that attempts to constrain how users may use their legally purchased technologies (DVDs, CDs, etc.). Based on the power of collaborative networks, some tech innovators have realized that the challenge is not how to lock up and privatize digital artifacts, but how to assure that they can be shared on open platforms in legally enforceable ways. Hence the many active efforts now underway to devise technical systems that would act as “smart” digital software agents whose transactions would also be enforceable under conventional law. The “transactions” could, of course, be used to invent new types of markets, but they also could be used to create new types of commons; ultimately, the two realms may bleed into each other and create social hybrids that conjoin community commitments and market activity.

See also Jay Cassano, “What are Smart Contracts? Cryptocurrency’s Killer App,” Fast Company, September 17, 2014; and Smart Contract. [20] Wikipedia entry, “Smart contract.”

Many websites use self-serving “contracts of adhesion” in their Terms of Service (ToS) as a way to impose their own one-sided terms of usage while formally abiding by the premises of contract law (a mutually negotiated set of legal terms that bind both parties). But what if a ToS, instead asserting strict proprietary rights for business purposes, legally authorized and required peer sharing among users of the website? Such a ToS would assert legal terms for automatic access, use and sharing of collectively “owned” digital resources, perhaps with customizable options for specific needs. This Peer Production ToS is now being developed by Intrinsic, [21] a startup company that is building an open-source architecture for online collaboration.

This is a fledgling project that is attempting to apply open source principles to the inefficiencies and costs of conventional lawyering. The goal is to decentralize the writing of legal documents and empower users by developing a massive global inventory of standard legal forms, libraries of legal clauses and specific use-cases in civil law. The many modular elements can then be mixed-and-matched by users to apply to their specific needs. Specific legal modules would be rated, annotated and commented up by recognized legal experts, in an open-source fashion, helping to provide a measure of credibility and trust in the legal draftsmanship of legal documents.

While the system would not necessarily eliminate the need for a real lawyer in a given situation, it could automate, simplify and reduce the legal costs for many standard commercial and civil transactions. Common Accord is also involved in devising machine-readable legal consent forms for contributors to peer production projects, such as open source software projects, data sharing by municipalities, patients who share their genetic information with hospitals and pharmaceutical companies, and musicians eager to collaborate on collective pieces of music. Such collaborations are often plagued by legal terms that favor the data-using institutions and by incompatibilities among national legal systems and digital technical standards.

See also the P2P Foundation wiki: [23]: “The goal is to make the documents so modular that much of the text disappears, leaving parties with only specific deal points and clear relationships. These relationships can be ‘rendered’ at any time into full legal documents, for verification and enforcement. Technically, this is a data-model for text, an extremely simple and expandable data-model that consists of a series of nested lists that render into texts. The texts can be improved, extended and forked by the community. As such, CommonAccord is expected to play the same role in facilitating and accelerating collaboration on legal texts as git has played for code.” The three active contributors to Common Accord are James Hazard, an American lawyer based in Paris; Primavera De Filippi of the Harvard Berkman Center and CERSA/CNRS; and Marc Dangeard of

See, e.g., CommonAccord version of a model contract [24]; patient consent forms; [25]; and Municipal Data Sharing. [26]

There are a wide variety of software platforms that are experimenting with better ways to facilitate group deliberations and decision-making. These programs t could have important implications for new types of governance. The more notable experiments include Loomio, [27] Democracy OS [28] and Liquid Feedback. [29] The point of such systems is to enable direct, sustained and somewhat complicated discussions that can then clarify group sentiment and foster commitments that participants see as legitimate and meaningful.

This project, headed by Italians Salvatore Iaconesi and Oriana Persico, [30] is attempting to overcome impediments to data-sharing in cities and develop better ways to use data to improve social research and governance. Ubiquitous Commons is trying to develop new systems that can creatively use enormous flows of data on social networks and public databases for public purposes, especially via maps of urban spaces. The idea is to enable citizens, city governments, scientists, health researchers and others to use dynamic data flows to understand actual social behaviors and design appropriate services and policies, while protecting individual privacy rights. Prototypes have been launched in Rome, Sao Paulo, and New Haven, Connecticut. The project has obvious implications for improving the quality of self-governance and participation.

Faircoin is a recently founded project of the Cooperativa Integrale Catalana (CIC), an “Omni Commons” based in Barcelona. CIC is attempting to build a new set of free economic tools that will “promote cooperation, ethics, solidarity and justice in our economic relations.” The CIC-founded group FairCoop has developed a new Cryptocurrency, Faircoin, a descendent of an earlier digital currency, Peercoin. The basic idea of Faircoin is “to hack the foreign exchange market” by developing a new currency that fosters cooperation over private competition. (Faircoin relies less on “mining” new coins than on “minting” them in more ecologically responsible ways and distributing them to those who want them.)

The Faircoin system aims to be “fractal” in character, meaning that “from the experience in the root platform, it can be moved and replicated at different regional and local scales around the globe, with interoperability at different levels for the entire ecosystem….,” as CIC founder Enric Duran has explained. /enric-duran-introduces-fair-coop/2014/09/18 While the project is unabashedly ambitious, CIC correctly recognizes that the existing monetary system and private banks pose insuperable barriers to reducing inequality and ensuring productive work and wealth for all. The only “realistic” alternative to existing fiat currencies and foreign exchange is to invent a new monetary system! CIC intends to use Faircoin to help build a larger ecosystem of economic institutions, which will include FairCredit, a worldwide mutual credit system for exchanging goods and services via Faircoin; and FairFunds, a group of Faircoin donation vehicles for various types of projects.

Formal government policies to assist digital commoning remain mostly on the margin of mainstream politics and policymaking. However, a significant initiative in this area was the 2013-14 research project of the FLOK Society [31] – Free/Libre Open Knowledge Society – in Ecuador. This project, headed by P2P Foundation founder Michel Bauwens, sought to “envisage an economy that would no longer be dependent on limited material resources, but on infinite immaterial resources.” The project developed a policy framework to promote online commons-based peer production in its many diverse forms, resulting in more than eighteen legislative proposals including a dozen pilot projects, which were validated in the Buen Conocer Summit at the end of May 2014.

The FLOK project’s detailed research paper addresses the many challenges of building commons-oriented productive capacities (sustainable agriculture, distributed manufacturing and energy), social infrastructure and institutional innovation (the social economy, the Partner State, Open Government), open technical infrastructures (free software, free hardware, cybersecurity), and policies to protect traditional and ancestral knowledge and biodiversity, among other topics. The general FLOK Society agenda, which has larger implications beyond Ecuador, is now continuing under the auspices of the Commons Transition Initiative, [32] headed by Michel Bauwens and Stacco Troncoso.

See also Bauwens’ assessment of post-FLOK priorities. [33]

A notable new form of Commons-Based Peer Production, Open Value Networks, is described below in #8, “New Organizational Forms.”

4. Stakeholder Trusts

Stakeholder trusts are a species of large-scale commons that distributes revenues from a shared asset, typically a natural resource, and distributes it to citizens with a recognized “stake” in the resource. Stakeholder trusts are also touted as “common wealth trusts” that can safeguard natural and social resources that are our collective inheritance.

The archetypical example of a stakeholder trust is the Alaska Permanent Fund, a state-chartered trust that is authorized to collect, manage and distribute revenues from oil drilled on state land, on behalf of Alaska residents. In 2015, the Fund held $52 billion, which has typically generated an annual dividend of between $1,000 to $2,000 for every resident of the state. The Fund’s endowment comes from royalties paid to it from corporations extracting oil on Alaska state lands. The annual dividends paid to individual citizens are praised by both progressives and conservatives as a welcome display of citizen sovereignty over “what we own” and a source of non-wage income for ordinary people that can reduce inequality.

In his 2014 book, Liberty and Dividends for All, [34] Peter Barnes extended the idea of stakeholder trusts to wide variety of “common assets” that could be responsibly monetized and revenues shared via common wealth trusts. The trusts would act as trustees for revenues collected from various commercial users of common assets (where monetization is appropriate): industries that use the atmosphere for their wastes (and thus must buy air pollution rights to use that scarce resource); banks and stock sellers who must pay a financial transaction tax (in recognition of public support for the financial infrastructure); copyright-, trademark- and patent-based industries that rely on government-created property rights and enforcement systems; and broadcasters and other users of the public’s electromagnetic spectrum. Stakeholder trusts could be applied at the state or provincial level.

See also Peter Barnes’ essay for the Great Transition Initiative website. [35]

In Vermont, a 2008 report [36] outlined the various state assets that could be managed via stakeholder trusts – forests, rocks and minerals, water used in bottling, broadcast spectrum, land, wind. In 2011, a bill was introduced in the Vermont state legislature to establish a “Vermont Common Assets Trust” for a variety of natural resources; the bill was never enacted but the idea is still viable in Vermont and other legal jurisdictions. Versions of the stakeholder trust governance/management model have also been proposed the atmosphere (“Earth Atmospheric Trust”), oceans, and the human genome.

See also:

    • Peter H. Sand, “Public Trusteeship for the Oceans,” in Law of the Sea, Environmental Law and Settlement of Disputes, eds. Tafsir Malic Ndiaye and Rudiger Wolfrum (Boston: Martinus Nijhoff, 2007), 521.

Working with Peter Barnes, the Sustainable Economies Law Center [38] (Janelle Orsi, director) is currently exploring ways to extend and adapt the stakeholder trust idea to different contexts. For example, local commons trusts could serve as a steward of local forests, watersheds or open spaces (e.g., community forests or the cooperative management of a public forest described above). [insert link to corresponding paragraphs]

Interested citizens and legislatures could use standard organizational forms for creating commons-managed trusts. In such a scheme, as Peter Barnes explains, “Outwardly, the shells [of trusts] would be not-for-profit corporations with state charters, self-governance, perpetual life and legal personhood. Inwardly, they’d be coded to protect their assets for future generations and to share current income. In this vein, the Sustainable Economies Law Center (SELC) currently exploring the [[Agrarian Trust Model [39] – the idea of putting farm land into trusts as a strategy to help retiring farmers sell their farms while preserving the land for agricultural uses.

The Sustainable Economies Law Center is also exploring new legal and financial structures to provide universal basic incomes and to create “Baby Bonds” – “child trust funds” in the UK [40] – which consist of assets that appreciate in value and pay dividends to children when they become 18 years old. All of these trust forms seek to protect common wealth from marketization, especially over intergenerational periods of time, and promote greater social equity.

See also Will Paxton and Stuart White, “Universal Capital Grants: The Issue of Responsible Use,” in Will Paxton and Stuart White, with Dominic Maxwell, The Citizen’s Stake: Exploring the Future of Universal Asset Policies (Bristol, UK: Policy Press, 2006), pp. 121-134.

5. Co-operative Law

There are a number of legal and organizational innovations transforming co-operatives these days, making them more oriented to commoning and the common good than just marketplace success. However, these innovations are geographically dispersed and not necessarily widely known, even within the co-operative movement.

One of the most notable new organizational forms is the multistakeholder cooperative (or “Social and Solidarity Cooperative”), which has been rapidly proliferating in recent years. It got its start in Italy in 1963 when families in Italy joined forces with paid care workers to develop co-operatives to provide social care, healthcare and educational services. This new paradigm collectivizes and centralizes basic overhead services (administration, personnel, accounting, etc.) and in this way empowers smaller social economy ventures (similar to “omni-commons”). [insert link to that paragraph in section #8 below]

In a sense, multistakeholder co-ops regularize governance for co-stewardship of commons spaces and move away from rigid bureaucratic methods that increasingly don’t work. Multistakeholder co-ops now employ more than 360,000 in paid jobs, including the disabled, the formerly imprisoned and marginalized people, and more than 40,000 volunteers. Social co-operatives have spread to all regions of Italy and today number more than 14,000, making it a significant sector of the Italian economy that is neither market- nor state-based. Today there are multi-stakeholder co-operative movements [41] in Quebec in Canada and in a wide number of countries in Europe including France, Spain, Poland, Hungary, Finland and Greece.

See also:

    • A listing of articles and reports about multistakeholder coops. [44].

In recent years, there have also been a number of new strategies for implementing community land trusts and cooperative housing. Since land values typically account for 25% to 75% of house prices, a community land trust (CLT) can serve to remove land from the market and thus drastically reduce housing prices and keep homes permanently affordable. There are now over 250 CLTs in the USA and about 50 established with more than 100 in the pipeline in the UK. The model is being developed in Canada and in Belgium, and interest is gaining in France and Portugal. CLTs are attractive because they are flexible models for a wide variety of urban commons development – not just housing but workspace development, community-owned energy generation, and new forms of urban agriculture and community gardens.

There are some interesting legal innovations in the internal governance structures for co-operatives. The Sustainable Economies Law Center is currently developing an impressive set of new legal provisions for governance of co-operatives to assure a “true sharing economy.” Among the goals: genuine sharing of the wealth by co-operatives with local communities; safeguard against market buy-outs such as the one orchestrated by Couchsurfing; assure fair and balanced wages and avoid large wage disparities within the co-op; shared capitalization to prevent disproportionate losses or harm to any single stakeholder; highly participatory governance structures instead of concentrated power based on capital ownership; and greater sharing of resources (food seeds, water, energy) rather than artificially limiting access; and prioritization of advancing the common good.

Along these same lines, one can point to the ingenious legal scheme developed by a housing co-op, Mietshäuser Syndikat, [45] in Germany, which assure residents the right of self-management of their building while making any sell-off of the building in the future difficult. How? The building is jointly owned by the not-for-profit residents’ association of 300 members and by a limited liability corporation, each of which has one vote. Any fundamental changes require a “yes” vote by both partners, essentially giving each veto power. The associated corporation can act as a check upon a potential stampede by co-op members to sell the building.

Following a 2014 conference of garden cities in the UK, there has been renewed interest in the model of citywide mutualization of infrastructure, a model pioneered by the Letchworth Garden City. This city was built in 1903 on 5,000 acres of co-operatively owned land north of London; all utilities were municipally owned until 1945. The income and the economic rents paid by the businesses in the town made Letchworth economically resilient. For more, see a 2014 report by Pat Conaty, “Commons Sense: Co-operative Place Making and the Capturing of Landf Value for 21st Century Garden Cities.”

Another new co-op based model now being explored is open co-operativism, which consists of using familiar co-operative structures on open network platforms to carry out Crowdfunding, Crowdsourcing of knowledge and governance through online platforms. This idea was given focus at a gathering in Berlin in August 2014 that tried to “imagine a new sort of synthesis or synergy between the emerging peer production and commons movement on the one hand, and growing, innovative elements of the co-operative and solidarity economy movements on the other.” (For more, see footnote 39.) The Enspiral open value network mentioned above might be considered an open co-operative; so might the FairCoop and multistakeholder co-operative models cited above. The point is to try to use the distinct capacities of open platforms – for self-selected participation, iterative innovation, knowledge-sharing and high-quality, low-cost self-provisioning – to avoid conventional market providers and become more self-directed.

To promote this new model by providing financial administrative and political support, UK academic and co-operative advocate Henry Tam has proposed the establishment of an Open Cooperative Development Agency. Besides propagating new co-ops, the goal would be to promote an “open ethical economy” through which co-operative entrepreneurs could co-produce commons through coalitions of ethical entrepreneurs and a market sector comprised of collectively oriented enterprises. This topic is gained more relevance now that some venture capitalists are realizing that respect for online user communities – including meaningful voice and governance – may be the key to the success of investor-owned social media platforms.

See also

Another new type of co-operative venture – which draws inspiration from the licenses created to protect open source software -- are seed sharing licenses to protect and promote the co-operative use of shared seeds. Sociologist Jack Kloppenberg at the University of Wisconsin has started the Open Source Seed Initiative [46] to provide legally protection for non-proprietary seeds, making sure that the genes in at least some seeds will not be locked up by patents. Launched in April 2014, the project asks breeders and stewards of crop varieties to sign to a pledge to make their seeds available without restrictions on use, and to ask recipients of those seeds to make the same commitment.

6. Urban Commons

In 2015, there was a big surge of interest in urban commons, many of which rely upon new legal frameworks or specific municipal ordinances.

One of the most significant such experiments in urban commons is the Bologna Regulation for the Care and Regeneration of Urban Commons. [47] This one-year old project in Bologna, Italy, is attempting to remake local government and transform standard bureaucratic process by inviting ordinary citizens and neighborhoods to come up with their own urban commons ideas, and then work with the government to make them real. The city now has more than 90 “pacts of cooperation” with self-nominated citizen groups, each of which works with the city in three areas – “living together, growing together and making together.” Examples include a neighborhood becoming a designated steward of certain public spaces or gardens; residents of a street removing graffiti with the city’s help; parents who are managing a local kindergarten; and neighbors creating “social streets” that encourage socializing. Originally developed by the Laboratory for the Governance of Commons [48] (LabGov; Professor Christian Iaione) and by Labsus [49] (Laboratory for Subsidiarity; Professor Gregorio Arena), the Bologna Regulation is now being emulated by dozens of Italian cities.

A broader, US-based initiative is seeking to promote “shareable cities.” Two Bay Area organizations – Shareable [50] and the Sustainable Economies Law Center [51] -- released an October 2013 report, “Policies for Shareable Cities: A Sharing Economy Policy Primer for Urban Leaders.” [52] The report identifies “scores of innovative, high impact policies that US city governments have put in place to help citizens share resources, co-produce and creative their own jobs.” Examples include carsharing, bikesharing and ridesharing, as well as changes in local taxes and other policies to promote them. Other “sharing policies” encourage urban agriculture on vacant lots, easier permitting to encourage home-based micro-enterprises, and city permission for the selling of homegrown vegetables in the neighborhood. A “sharing city” can also include city-supported co-working spaces, shared commercial kitchens, community-financed startups, and spaces for “pop-up” businesses. A number of cities have very aggressive sharing cities initiatives, including Seoul, Korea [53]; Lille, France [54]; and Barcelona, Spain. [55]

See also

[56] a major conference on urban commons in Bologna, Italy, November 6-7, 2015, co-hosted by LabGov and the International Association for the Study of the Commons. [57]

One notable socio-legal-ecological experiment for urban living is the Charter of the Eco-Quartier of Lausanne quartier_brochure.pdf (Switzerland). On a site of 30 hectares in the city, Plaines-du-Loup, the city will build a new eco-neighborhood in 2017 that will ultimately have about 3,500 homes and more than 10,000 residents. This section of the city aims to create and implement new models of property and social norms that will facilitate more ecological forms of urban life. The neighborhood is envisioned as a living, self-governing community of commoners that will “negotiate” with the city government and undertake systemic social and design approaches to buildings, transportation, energy, waste and social activities. Apartments, for example, will be designed to accommodate adaptive changes during the life cycle of the inhabitants, such as adding rooms to accommodate new children and removing rooms as children leave home.

A process pioneered in Porto Alegre Brazil in 1969 is continuing to gain in popularity, particularly in the US. [59] This procedure invites city residents to democratically determine how a (modest) portion of their city’s budget is allocated. Since coming to the US in 2009, participatory budgeting has been used in Chicago, San Francisco, St. Louis, Boston, Vallejo, much of it promoted by the Brooklyn-based Participatory Budgeting organization. Worldwide, there are now more than 1,500 participatory budgeting projects being carried out.

A number of cities have pioneered new sorts of digital initiatives to improve cities (in addition to the open data efforts mentioned in this wiki). [link to “Ubiquitous Commons”] One of the more significant is the pioneering work of Linz, Austria, which launched the Open Commons Linz initiative to foster open information and digital access in many guises: free email and wifi for residents, public space server, use of open data, use of Creative Commons licenses, access to government information, geodata based complaint management, and more.

See also: Thomas Gegenhuber, Naumi Haque and Stefan Pawel, “From Blue Collar to Open Commons Region: How Linz, Austria, has Benefited from Committing to the Commons,” [60] in Bollier & Helfrich, The Wealth of the Commons: A World Beyond Market and State.

  • Government Procurement Policies

Some cities recognize that government procurement policies could be an especially powerful force for improving urban life and livelihoods. The Evergreen Cooperatives of Cleveland, Ohio, are a pioneering example of leveraging the power of public monies to create green jobs at a living wage, and to boost local economies. In the digital context, government procurement can also be used to advance open technical standards, open source software, worker co-ops, open data, open educational resources, and the use of Creative Commons-licensed works. The Sustainable Economies Law Center [61] has gone further, suggesting that perhaps city governments should develop open platforms for taxis, short-term housing and other resources as “Municipal Software Cooperatives.” This idea of an “open information commons” for cities has great potential in other cities, but it requires new legal authorizations and programs.

  • Top Level Domains (Web URLs) for Major Cities

Newly available Top Level Domains (Web URLs) for major cities could be an unprecedented tool for urban planning and livelier cities. Ever since ICANN, [62] the Internet domain-name body, authorized cities to apply for their own Top Level Domains (e.g., .nyc, .paris, .berlin), major cities have had the opportunity to use electronic networks as part of their urban planning – something that has become highly appealing as smartphones become ubiquitous. The TLDs provide a way for people to have easy access to city resources via the Web. For example, New York City could in principle put all museums under the domain name, and a neighborhood could have its own domain name ( However, many cities appear more inclined to auction off the TLDs [63] rather than use them as urban planning tools to make the city more lively and easier to navigate: another political contestation over digital space. Thomas Lowenhaupt of [64] has been a long-time advocate for using the TLDs as a shared urban resource.

  • Timebanks and Alternative Regional Currencies

Timebanks and alternative currencies have great potential to help revive the social and economic fortunes of cities. The Helsinki Timebank, for example, is a robust barter-credit system that helps people without much money both provide and receive everyday services that might not be able to afford: dog-walking, lawn-moving, care-taking, rides to doctors, and so. In other cities, local currencies are attempting to relocalize economic activity, such as the successful effort of the Bangla-Pesa – in effect a currency, but officially “a credit-clearing system for multilateral reciprocal exchange” – that enables hundreds of poor residents in a poor neighborhood in Mombasa, Kenya, to meet their basic needs. But in the face of state fears about Bitcoin and other self-organized currencies, the legal complications in using and expanding such currencies are increasing. There are also sometimes tax and legal complications in using such currencies, and resistance by city governments to payment of taxes with them.

7. Localism

A subset of work on urban commons is specifically directed at fostering relocalization of the economy and governance. Several of the items mentioned above have these effects indirectly – the Evergreen Cooperatives, Linz Open Commons, local currencies and timebanks, Top Level Domains [add links to these terms using wiki entries above] – but there are many notable legal initiatives that are expressing attempting to expand the self-determination of local communities.

These initiatives include:

This project run by CELDF, the Community Environmental Legal Defense Fund, in the US, seeks to empower local communities to resist fracking, the transport of hazardous materials, and other violations of local self-determination, especially on environmental matters. The ultimate legality of such ordinances under state and federal law may be problematic, but in some ways that is the point – to dramatize how outsider investors, in collusion with state and federal governments, are riding roughshod over community sentiment, and to provoke test cases and political controversy about enclosures of local commons.

In a number of countries, people are drafting their own community charters to assert moral and legal right to control certain local resources. Inspired in part by CELDF’s “Community Bill of Rights,” [65] community charters have been drafted to protect a wide variety of resources at different scales: neighborhoods in Dakar, Senegal; the entire city of Bologna, Italy [link to Bologna Regulation in section #6]; the venerated Teatro Valle in Rome [66] which the city government tried to sell to private investors; and the Great Lakes Commons Declaration. [67] There is a Felkirk City Charter in the UK, [68] and a charter developed by the self-managed cultural space, the Aqua Bene Comune, in Milan.

See also:

    • Ugo Mattei, “The Valle Theater Commons Foundation: How to Deploy the Law in Current and Future Struggles,” in Peter Weibel, Global Activism: Art and Conflict in the 21st Century (MIT Press, 2014).

Remix The Commons has recently begun a project to compile a compendium of community charters and mapping tool – an “Atlas of the Charters of Urban Commons” [69] – in concert with actors directly involved in the field, using collaborative and participatory methodologies. The goal is to promote more community charters through a process that Remix describes as “exploratory, pragmatic, pedagogical and political” as well “interdisciplinary and inter-cultural.” The Remix database will include the players in each charter, the purpose of sharing, the goods and means being used, the fundamental rights asserted, the mechanisms for meeting user rights, etc., as well as the types of shareholder organizations.

is a tool by which a local community in England can assert a legal interest in a pub, public library, community center, sports team or other resource that citizens regard as an “asset of community value.” Use of the law can give buildings, land and enterprises a degree of legal protection from development or relocation, and enable citizens to try to buy them. It can be quite difficult for the community to raise necessary funds, but the law has nonetheless resulted in more than 100 beloved pubs being declared assets of community value and many other facilities have been saved.

8. New Organizational Forms

There is a great deal of experimentation going on with new organizational forms because old structures, whether for-profit or nonprofit, do not adequately recognize and support the types of commoning that people are doing or aspire to do. The old organizational structures, even in their variations (co-operatives, limited partnerships, charities, nonprofits) often reflect institutional orientations to markets and the economics of scarcity. How, then, to devise organizational forms that can both serve the interests of commons while being legally recognized by the state?

Perhaps the most salient American experiment in devising new organizational forms is the benefit corporation, or B Corporation, which has been approved by 28 American states as of October 2014. These state laws explicitly expand the definition of the fiduciary duty for corporate boards of directors, allowing enterprises to take non-financial interests – i.e., the public good, the environment – into explicit account in their investment and management decisions. However, it is unclear how significant benefit corporations will be in actually fostering socially minded change, given the hierarchical, market-oriented and legalistic structures that remain, or indeed, whether the validity of B corporations will be challenged in court.

One of the more interesting new organizational forms is the “omni-commons,” which are enterprises that take on administrative, fiscal and legal tasks for collectives of small, artisanal enterprises with a commons orientation. The Omni Commons of Oakland, California, is one notable example. It is a large “collective space to share and commune” comprised of several Bay Area collectives that has a shared political vision of “equitable commoning of resources and meeting of human needs over private interests or corporate profit.” In its large building, it hosts the Contemporary Art Museum of Oakland, a citizen-science and DIY bio space for open sourcing biology, a small book publisher, a food justice advocacy and support group, a radical film and video collective, a hackerspace, a worker-owned café, and a print shop.

There are other fascinating omni-commons elsewhere in the world, such as Cooperativa Integrale Cataluna (CIC) – mentioned earlier [insert link to above] – which sees itself as a strategic intermediary for commoners in dealing with state taxes and regulations and with complex legal and bureaucratic issues. CIC also provides financial support to such enterprises, and is now launching FairCoop and FairCoin [insert link] in an audacious attempt to invent a new global financial system.

Another impressive omni-commons is Cecosesola [70] in the Venezuelan state of Lara. Cecosesola is a network of about sixty cooperatives and grassroots organizations, with about 20,000 members. It provides healthcare to 200,000 patients every year, funeral services, produce selling in local markets, and a variety of co-ops that are run on the basis of consensus, trust and egalitarian principles.

See also, “We Are One Big Conversation”: Commoning in Venezuela,” in the forthcoming Bollier and Helfrich, Patterns of Commoning (Amherst, MA: Off the Common Books, 2015).

It may be premature to declare the Food Commons Fresno, [71] an omni-commons, but this fledgling enterprise – legally a trust – certainly seems headed in that direction. The organization is attempting to integrate the major components of the food production system in the Fresno, California, region, so that the “surplus value” produced by member-organizations can be mutualized. This will allow it to lower costs; meet the needs of more poor people; improve working conditions and pay for agricultural workers; and adopt safer, more ecological agricultural practices. In New England, local food producers in six states have banded together as Food Solutions New England to improve locally sourceable agriculture. One aspect of this challenge is to develop a new organizational form for regional agriculture, distribution and retailing that can federate local agriculture across the region. The aim is to produce 50% of all food locally by 2060.

Digital platforms are also incubating some innovative new organizational forms. One of the most intriguing is the Open Value Network, which have been described as an “operating system for a new kind of organization” and a “pilot project for the new economy.” OVNs consist of digital platforms that facilitate new modes of open, decentralized and self-organized social governance, production and livelihoods. Two of the leading OVN projects, Sensorica [72] and Enspiral, [73] are organized in ways that let anyone to contribute to the project, and be rewarded based on their contributions, as measured by actual contributions, experience and other collectively determined criteria. Unlike “conventional commons” that tend to eschew market-based activity, open value networks [74] have no reservations about engaging with markets; OVNs simply wish to maintain their organizational and cultural integrity as commons-based peer producers. This means open, horizontal and large-scale cooperation and coordination; responsible stewardship of the shared wealth and assets while allowing individual access, use, authorship and ownership of resources “where appropriate”; careful accounting of individual “inputs and outcomes” via a common ledger system; and the distribution of fair rewards based on individual contributions to the project. Some notable keywords for describing OVNs: equipotentiality, anti-credentialism, self-selection, communal validation and holoptism.

OVN stress that while they may be legally nonprofits or for-profits, they are not functionally either in that they have no retained earnings or fixed assets. They instead function as “a flow-through entity which is as formless as possible,” but which functions as a trust for members, as outlined by a “nondominium” agreement. A Nondominium [75] is a new form of common property governed, in the words of Chris Cook, by “a consensual legal framework agreement within which value may be created, shared and exchanged (P2P) on credit terms by reference to a unit of account (note that a unit of account is NOT a currency).” While still fairly rudimentary, OVNs represent a new type of consensual governance/production regime, bound by contractual terms, that blends commons principles and market activity. Other OVNs include the projects iAGRI innovation portfolio, Greener Acres, [76], Metamaps [77] and Guerrilla Translation. [78]

Some digital communities with open-source commitments are developing their own constitutions as ways to govern their network-based community. In obvious ways these “constitutions” are not binding in the way that conventional constitutional law is. Yet they are serious attempts to give definition to the social and political structures that govern a networked community; the documents provide a moral basis for social sanctioning of violators – and in some cases, provide resort to conventional courts for enforcement.

For example, the open design and production community Wikihouse [79] has developed a constitution [80] outlining how it functions as an open community. Officially a British nonprofit, Wikihouse invites users to submit design work and collaborate with others, and officially renounces intellectual property rights in the designs on its website (while disclaiming any legal responsibility for the uses of designs). However, Wikihouse does license its trademark to chapters that it approves, official partners, certified designers and manufacturers. Similarly, open source Linux groups like Debian (a community that produces a “Debian distribution” of GNU Linux) have a constitution. [81] One tool to make a digital constitution more enforceable is to embed it in the Terms of Service, thereby making it part of an enforceable contract if users opt in to the website. For more, see the Terms of Service contract for peer production mentioned above. [insert link]

9. Re-imagining State Policy to Empower Commons

The deficiencies of the nation-state as a form of governance are becoming increasingly clear, and often resented, largely because nation-states tend to be tightly aligned with large corporations and neoliberal economic policies, and thus hostile to initiatives to protect ecosystems, human rights and commons from market enclosure. In addition, beyond any matters of politics or ideology, the centralized bureaucratic state seeking to assert comprehensive territorial control is increasingly incompetent. Decentralized networks are proving to be faster, more innovative and more responsive to local circumstances than the conventional state apparatus.

This mismatch between archaic forms of national and international law on the one hand, and the unmet needs of people and the environment on the other, is causing new tensions – as well as new proposals seeking to re-imagine state policy and commoning. I will review some of the more prominent proposals, which range from the conceptually familiar to the daring, experimental and paradigm-shifting.

The most prosaic reform efforts are surely the Government 2.0 (or Gov 2.0) initiatives that are attempting to remake conventional bureaucracy. The basic goal is to engraft network functions on to existing government bodies through such add-ons as crowdsourcing, social media and citizen-science. For example, city government are implementing “smart cities” digital systems to improve traffic control, parking, street lighting and energy management. Regulatory agencies are open to citizen-science projects that submit ecological data and species sightings. The US Patent and Trademark Office’s “Peer to Patent” website invites crowdsourcing of “prior art” (existing inventions that may invalidate a patent application).

A fascinating tech-based proposal seeks to leverage the power of open networks to erect a new legal architecture for government regulation. The idea, offered by tech entrepreneur John Clippinger, is to use open APIs as a portal for real-time, automatic reporting by regulated entities. Much as Apple has open APIs (application programming interfaces) for app developers for the iPhone, government could provide an open API through which all regulated parties (e.g., financial services, polluters) could devise appropriate apps that would submit real-time data as they pertain to regulatory compliance. This could bypass the many cumbersome bureaucratic steps of conventional regulation and enable broader discretion for how enterprises meet performance standards (without the abuses that tend to come with regulatory flexibility). In Madrid, there is an effort underway by Medialab-Prado [83] to facilitate access to public databases by creating an API that would let them use the data for their own purposes, including self-management of their enterprises or civic projects.

A more serious attempt to remake conventional government by introducing the commons paradigm can be seen in the newly formed task force of the European Parliament known as the European Parliamentary Intergroup on Common Goods and Public Services. It is one of 28 Intergroups established by the Parliament that may or may not have much actual effect on law, but can often stimulate important political and policy debates. [84] The group conjoins “common assets” with traditional public services, without really calling attention to how the commons entails a different logic and set of social practices and relationships than those of the modern liberal state. Still, the task force may be a useful forum for focusing the actual philosophical and operational differences between a liberal state and commons.

Another attempt to use existing legal venues to protect the commons involves broader applications of the public trust doctrine, pursued through litigation. The public trust doctrine is an ancient legal principle that affirmatively requires the sovereign or governments to protect resources that belong to the unorganized public and to future generations. Historically, courts have applied this legal principle mostly to coastal areas, rivers, lakes and other bodies of water, with modest extensions for other elements of nature.

However, in 2013, law professor Christina Wood of the University of Oregon helped develop an ambitious set of lawsuits, the Atmospheric Trust Litigation, [85] to attempt to get US courts to force governments to implement enforceable science-based Climate Recovery Plans, under the authority of the public trust doctrine. On behalf of children associated with an advocacy group, Our Children’s Trust, [86] lawsuits were filed in all fifty states and in federal court. While the U.S. Supreme declined in October 2014 to rule on the lawsuit, five state lawsuits are now pending – in Oregon, Massachusetts, Colorado, Washington and North Carolina. Litigation efforts are also being pursued in nine nations around the world.

See also:

    • For a treatise exploring how the public trust doctrine could reinvigorate state trusteeship of common assets on a global scale, see law professor Klaus Bosselmann’s Earth Governance: Trusteeship of the Global Commons, which proposes a new international regime in which states are now “owners” of natural resources but trustees of Earth as an integrated whole.

In 2015, a lawsuit waged by 886 Dutch citizens and the Dutch NGO Urgenda against the Dutch state prevailed in making a case that the state had neglected its duty of care towards the citizenry and future generations by not reducing CO2 emissions quickly enough to avoid catastrophic climate change. As one plaintiff wrote, [87] “We asked the judge to order the Dutch State to reduce its CO2 emissions with 25-40% in 2020, the percentage that science and international agreements tell us is needed if we want to stay below the 2 degrees threshold.” The court relied on Dutch tort law; European human rights standards such as article 2 and 8 of the European Convention of Human Rights; the precautionary principle; the UN Framework Convention on Climate Change; among other legal provisions. In June 2015, a Dutch court ruled in favor the plaintiffs. [88] Given the reluctance of courts to be instigators of dramatic political or social change – however warranted by legal doctrines and case history – the Dutch ruling may end up as an aberration, with courts shifting the burden to legislatures and elected officials to take action.

Another ingenious legal strategy used by commoners has been the development of a new legal doctrine guaranteeing access to commons goods as a fundamental human right. This idea had its origins with Professor Stefano Rodotà of Rome, a prominent legal scholar and politician. The government-sanctioned Rodotà Commission in 2007 produced the first legal definition of the commons as assets to be managed in the interest of future generations. Commons were defined as “goods that provide utilities essential to the satisfaction of fundamental rights of the person,” and access to such goods would be guaranteed no matter if the formal title of ownership were public or private; in all cases the asset must be protected in the “interest of future generations.”

This initiative did not succeed, but it did inspire a cultural movement to defend commons as a fundamental right, most conspicuously in a successful campaign against the privatization of Italian water systems and in a three-year occupation of the Teatro Valle in Rome when the city government threatened to sell it to investors. [link to this reference in section #7 above]

See Stefano Rodotà on “The Reasonable Madness of Common Goods.”

Another important attempt to link commons and human rights, and to advance fuller dimensions of both, is a Universal Covenant Affirming a Human Right to Commons- and Rights-Based Governance of Earth’s Natural Wealth and Resources, as outlined in by international human rights scholar Burns H. Weston and commons activist David Bollier in their 2013 book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons. [89] The Universal Covenant is a declaration for citizens, organizations and governments to affirm. It encapsulates many of the themes of Green Governance in calling for a legal framework for commons-based governance of large-scale common pool resources such as the atmosphere.

A failed (or at least dormant) effort to introduce the commons paradigm to European law deserves mention. In 2013, law scholar and charter organizer Ugo Mattei of International University College in Torino, and a number of organizations mounted an effort to secure an EU voter initiative for a European Charter of the Commons. [90] Pursued under the Lisbon Treaty Regulation No. 211/2011, the initiative sought to establish the legal status and protection of the commons within the European Union. The initiative was prompted by a wave of privatizations and demanded shifts of power from the centralized state and free market to local communities, and empowerment of bottom-up, local and direct democracy. The effort drew inspiration from legal scholar Bonaventura de Sousa Santos, who, writing in his book Law and Globalization from Below, created the term “subaltern cosmopolitan legality” to refer to “the plurality of efforts at counter-hegemonic globalization.”

See also this account [91] and this account of the project’s progress. [92].

A similar effort to establish a new kind of “people’s law” – separate from the legality of the state, and asserting greater legitimacy – is the Permanent People’s Tribunal Session on the Human Rights Impacts of Fracking. Based in Rome, the Permanent Peoples’ Tribunal is an internationally recognized public opinion tribunal functioning independently of state authorities that applies human rights law and policy to cases brought before it. The Tribunal had its origins with the Bertrand Russell-Jean Paul Sartre Vietnam War Crimes Tribunal in 1967, and hears cases in which prima facie evidence suggests abridgement of basic rights of ordinary people.

Many activists and legal scholars are interested in expanding existing bodies of law to take cognizance of the commons. One focused effort in this regard was a one-day conference held in Paris in April 2015 on “European juridical strategies for the commons.” It was attended by an illustrious group of legal scholars, activists, NGOs and others, to explore practical ways to move this agenda forward.

One strain of legal innovation has been to give legal recognition to Nature itself, or “Nature’s rights” – an idea that Ecuador and Bolivia have recognized in their constitutions, inspired in part by indigenous peoples in those nations. The idea of “Pachamama” or “Earth Jurisprudence” has spread beyond those nations, and Evo Morales, President of Bolivia, has urged the UN to recognize the “Inherent Rights of Mother Earth” – and to move away from the anthropocentric rights paradigm of environmental protection. While these legal ideas may or may not become incorporated into conventional jurisprudence, they are having an effect on people’s thinking and behavior. In New Zealand, after many clashes between Maori and the state over ecological governance, “some non-Maori New Zealanders now speak of themselves as kai-tiaki or guardians for rivers, beaches and endangered species.” In a few cases, such as a settlement with an indigenous Whanganui iwi (kin group), the Crown recognized the group’s iconic river as a legal being. These ideas are not being driven by law or politics alone, but by a deeper recognition (which manifests in politics and law) that the prevailing “cosmo-logic” of western capitalism, which clings to dichotomies of subject and object, mind and matter, culture and nature, is falling apart as the relational thinking inherent to commons comes to the fore.

See also:

    • Anne Salmond, “The Fountain of Fish: Ontological Collisions at Sea,” in the forthcoming Bollier & Helfrich, Patterns of Commoning (Amherst, MA: Off the Common Books, 2015).

The forthcoming book, Ugo Mattei and Fritof Capra, The Ecology of Law: Toward a Legal System in Tune with Nature and Community (Berrett-Koehler), in fall 2015.

Michel Bauwens of the P2P Foundation has been advancing the idea of the state acting as a “Partner State” in support of commons and peer production. (A prime example is the Bologna Regulation.) [link to it above.] In a world with a flourishing commons sector, the role of the state changes. As Bauwens puts it, “One the one hand, market competition will be balanced by cooperation, the invisible hand will be combined with a visible handshake. On the other hand, the state is no longer the sovereignty authority. It becomes just one participant among other sin the pluralistic guidance systems and contributes its own distinctive resources to the negotiation process….official apparatuses remain at best first among equals. The state’s involvement would become less hierarchical, less centralized and less directive in character. The exchange of information and moral suasion become key sources of legitimation and the state’s influence depends as much on its role as a prime source and mediator of collective intelligence as on its command over economic resources or legitimate coercion.” The idea of the partner state is intriguing, but will require further theoretical elaboration and investigations in how it might be politically actualized.

Detailed and Expanded Bibliography

See, as of September: Reinventing Law for the Commons

Pages in category "Law and the Commons Project"

The following 45 pages are in this category, out of 45 total.