Commons-Public Partnerships

Contextual Citation

Pat Conaty:

"We should link up social-public partnership and Commons-Public Partnerships. The important point to highlight is that social or commons must precede the state. Our elected representatives need to become again public servants and arrogant masters need to be rapidly recalled." (email, February 2014)

Description

David Bollier:

"A favorite scheme for many neoliberal politicians is to create public/private partnerships, or PPPs, that attempt to address pressing social problems through businesses/government collaboration in building infrastructure, providing services and so forth. However, many PPPs amount to little more than disguised giveaways. The state showers generous sums on companies that take on traditional state functions such as running prisons, healthcare systems, and schools. Or they buy the right to privatize revenues generated by public infrastructures such as toll-roads, bridges, and parking garages.

A clever twist on the public/private partnership is the commons/public partnership in which commoners act as working partners with municipal governments in tackling important need. An early example of this is the Bologna Regulation for the Care and Regeneration of Urban Commons. This initiative of the Bologna, Italy, municipal government established a system whereby the city bureaucracy provides legal, financial, and technical support to projects initiated by commoners. These projects have included the management of eldercare centers, kindergartens, and public spaces as well as rehabilitating abandoned buildings. As Chris Iaione and Elena De Nictolis describe in Chapter xy, the Bologna Regulation – developed by the Italian think tank LabGov – has evolved into the Co-City Protocols, a methodology for guiding co-governance initiatives. The protocols are based on five design principles: “collective governance, enabling state, pooling economies, experimentalism, and technological justice.”

The point of the Co-City Protocols as a legal innovation is to leap beyond the known limitations of bureaucratic administration and leverage the social and creative energies of commoning. Numerous cities in Italy have adopted the Protocols as a way to rethink and enlarge the relationship between city bureaucracies and residents. It is an insight that the City of Ghent, Belgium, has taken to heart as well. In 2017, it commissioned an intensive study of scores of commons-based projects within its borders. It wanted to learn how it might augment the work of a neighborhood-managed church building, a renewable energy coop, and a temporary urban commons lab that provides space to many community projects. Any commons/public partnerships that result are likely to require legal hacks to define the shifting contours of state collaboration with commons."

(https://www.resilience.org/stories/2020-11-17/hacking-the-law-to-open-up-zones-of-commoning/?)

Status

David Bollier:

"Commons/public partnerships As municipal governments struggle with waning budgets and service-delivery, and declining public trust, a number of city governments, academics and activists, especially in Europe, are actively developing commons/public partnerships as a new organizational form. The idea is to dismantle and redistribute some of the centralized, consolidated power of the state, so that collaborative partnerships between commoners and municipal government can develop, based on new types of distributed authority and responsibility.

We can get a sense of this trend in essays by Manuela Zechner (2024), by Pera and Bussu (2024), and Antonio Vesco and Sandro Busso (2024) in this volume, which discuss experiments in Barcelona, Bologna, Naples, along with other cities around the world including Bangkok, Ghent, and Seoul (New Geographies, 2021; Shareable, 2017). Both Bologna and Naples have boldly explored the use of legal innovations to support urban commons, blurring the public/private distinction and easing the public/commons clash. The experiments have opened the door for new forms of public/commons collaboration, leveraging the under-appreciated powers of ordinary people acting as commoners (Foster & Iaione, 2022). The tensions between commons and representative liberal democracy have not been erased – bureaucrats and politicians still take credit for the work of commoners, for example – but these experiments have created a new socio-political logic and validated the “micro-political” powers that Zechner identifies. This type of bottom-up energy is also playing out in fifteen cities that have declared themselves “Doughnut Cities” – inspired by Kate Raworth’s book, Doughnut Economics. Cities from Copenhagen and Amsterdam to Brussels and Melbourne are exploring innovative ways in which cities can renovate their economies to stay within ecological limits while meeting basic social needs. Another forty places around the world are internally exploring the potential of “the Doughnut” framework (Raworth, 2019; Doughnut Economics Action Lab, 2024).

These ambitions are encouraging, but of course it remains to be seen if such brave gambits will endure and expand. Despite some noteworthy commons/public partnerships around the world — mostly with municipal, not national governments – politicians and state officials generally find it difficult to embrace commons and other post-growth systems. They may realize that if people decommodify more aspects of their lives and reduce their dependencies on the market/state system, it could diminish their moral and political authority, along with economic growth and tax revenues."

(https://thecommonsjournal.org/articles/10.5334/ijc.1389)

Discussion

Regulating Public-Commons Collaboration

David Bollier:

* New infrastructures to make commoning easier

"One impediment to the growth of local commons is the lack of supportive infrastructures and new organizational forms. Creating and maintaining commons should not require heroic individual struggle and pioneering creativity; they need support at the meso-level of social and political organization and law. Much of the state apparatus, however, is designed to support market activity and growth. If the state is going to leverage the energies of commoners in an open source manner – which is arguably essential if the state is going to recover the trust of citizens and its own administrative efficacy – it needs to develop infrastructures and policy regimes that enable decentralized delegations of authority.

An early attempt to regularize state–commons collaboration was the Bologna Regulation for the Care and Regeneration of Cities, an initiative that has been adopted by a number of other Italian cities (P2P Foundation, 2024). Its primary purpose is to offer legal and policy structures by which city governments can enter into constructive, good-faith partnerships with self-organized groups of commoners. City bureaucracies provide legal, financial and technical support for specific projects initiated by commoners, and commoners in turn acquire significant measures of formal authority and resources to peer-manage commons that matter to them, such as eldercare centers, parks and public spaces, or rehabilitated buildings. This innovation has been further developed by the Co-City Protocols, a methodology developed by the LabGov.City project to facilitate commons/public partnerships (Foster & Iaione). Legal charters are used to explicitly authorize commoning and community rights, or the use of state-owned land and facilities.

While many municipal and national governments have formal ministries or agencies dedicated to promoting commerce, why not special state agencies to support commons, cooperatives, and solidarity economy projects? In 1987, Brazil actually had a ministry dedicated to helping cooperatives. States could take other steps to help develop commons as a stable, fair-minded, democratic alternative to markets. They could recognize socially embedded forms of property – “relationalized property” (Bollier & Helfrich, 2019, 201–281) – and they could offer legal support for noncapitalist forms of “relationalized finance” (Bollier, 2023a). Governments could be helpful in convening interested parties to sort through the legal, financial, and administrative complications of new systems to support commons and cooperatives.

* Legal hacks to open up zones of commoning

Because commons are strongly oriented toward respecting ecological limits and devising fair-minded allocations of shared wealth through flexible peer governance, they could address many societal problems better than existing organizational forms, especially state bureaucracies. But commoning as a legal activity, as mentioned earlier, is philosophically alien to many aspects of the liberal state and market. Law in the modern liberal state is mostly geared to serve markets and businesses, and to uphold private property rights, “contract freedom” among individuals, and legal privileges and subsidies for businesses (Pistor, 2019; Fligstein, 2001).

As commons grow in scale, it’s important to figure out how law and public policy can be crafted to affirmatively support commoning and to decriminalize it, as needed. Historically, one important strategy has been the use of legal hacks that use existing law — for property rights, copyrights, contracts, and other relams – by modifying the law in clever ways so that it can advance purposes that lawmakers may not have envisioned. For example, the General Public License for free software, various open source software licenses, and Creative Commons licenses use copyright law – a state-created regime of private rights in creative works and information – to authorize free, permissionless copying, re-use and modifications of works (St. Laurent, 2004; Creative Commons, 2024; Suber, 2012). A copyright holder need only attach the license to their work to allow others to share and re-use content: a legal maneuver that is essential to creating knowledge commons such as Wikipedia, open access scholarly publishing, open educational resources, among others.

In recent years, some intriguing new legal hacks have emerged to get beyond the modern presumption that humans and nature are separate and that humans can essentially use nature as they wish. Legislatures and courts in twelve countries have now recognized the “rights of nature” at the state, local, and/or national levels in a dozen nations (Boyd, 2017; Kauffman & Martin, 2021; Tănăsescu, 2022b; Bollier, 2023b). These laws authorize the appointment of legal guardians to represent specified natural systems (rivers, watersheds, mountains, landscapes) in legal actions that may affect them. In the United States, some three dozen communities – from Pittsburgh and Toledo to Orange County, Florida (population 1.5 million people) – have now enacted such laws, often with overwhelming public support. Ecuador now has a constitutional provision recognizing the rights of nature. The idea has now expanded to include “self-owning land,” which is a legal provision that enables a landowner to set aside specific tracts of land to be represented by legal guardians (Bollier, 2023b).5

To be sure, legislatures and courts will not readily welcome legal hacks on the law, and the law as it exists may itself may be intractable. Still, through persistence and ingenious legal draftsmanship, it is possible to usher in legal innovations and/or political mobilizations that can be quite catalytic. Creative legal hacks hold much potential in many areas such as seed sharing, peer governance, commons-based land stewardship, and mutual credit systems, for example (Sustainable Economies Law Center, 2024).

Legal hacks raise a larger, more significant question: Can liberalism as a governing polity come to accept and support commons on their own terms, or are its philosophical commitments (to individualism, private property rights, capitalist markets, etc.) too entrenched and rigid? It is becoming increasingly clear that neoliberal capitalism in our time is reaching some alarming, rigid extremes. Global financialization is preying upon the productive real economy, leveraging its control over it and siphoning away greater profits. Heedless market extraction and growth is destroying planetary ecosystems beyond state power’s capacity to control them. Soaring household debt, wealth inequality, and social dysfunction are eroding social stability. And reactionary, authoritarian responses to these outcomes are surging. Legal hacks may be one way to advance commons in the face of a politically captured liberal polity, but it remains to be seen whether the guardians of capitalist markets and liberal states are willing to enter into productive, good-faith relationships with system-change movements."

((https://thecommonsjournal.org/articles/10.5334/ijc.1389) )