Creating Legal Foundations for the Commons

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Ugo Mattei:

"All this, evidently requires the jurist’s attention to the difficult and urgent task of constructing the new foundation of a legal order capable of transcending the dualisms discussed inherent in the current order. Given the dominance of private property, individualism, and competition as the basis of the current legal order, the new order must correct this imbalance by focusing on the collective and the commons as the center, creating an institutional setting reflecting long term sustainability and full inclusion of all the global commoners especially the poorest and most vulnerable. To do so we need first an epistemic (and political) emancipation from the predatory appetites of both the State and private property, the two fundamental components of the dominant imperialistic Western wisdom.

The creation of a demand for commons requires a specific investment, which can be described as a “critical culture,” representing a commons in itself. Common goods lie beyond the reductionist opposition of “subject-object”, producing the commodification of both. Commons, unlike private goods and public goods, cannot be turned into commodities. They express a qualitative relation. It would be reductive to say that we have a common good: we should rather see to what extent we are the commons, in as much as we are part of an environment, an urban or rural ecosystem. Here, the subject is part of the object. For this reason commons are inseparably related and linked individuals, communities, and the ecosystem itself.

* Political Shift

Today we can see from examples all around us, from global warming to the economic collapse, that the politically recessive but philosophically more sophisticated holistic paradigm offers us a fundamental and necessary shift in the perception of reality. In this context the commons can offer an institutional setting reflexive of the need to reject the false illusion of modern liberalism and rationalism. This is why we cannot settle to see the “commons” as a mere third way between private property and the state as most of the current debate seems to suggest. To be sure, in the current academic resurgence of interest (celebrated by ideological apparatuses of global power, such as the Nobel Prize) the commons are reduced to an institutional setting proposed to manage the leftovers of the Western historical banquet which occupies with States and private property (the mythological market) almost the totality of the political scene. To the contrary we believe that the commons must be promoted to an institutional structure that genuinely questions the domains of private property (and its ideological apparatuses such as self-determination and “the market”) and that of the State: not a third way but an ecologically legitimized foe of the unholy alliance between private property and the state. The commons should become an alternative legal institution, based on a different world vision, capable of returning the power to the people (including the poor) to directly participate in the management and control of what belongs to them as parts of a human and ecological community.[27] Within such a vision of the commons, social rights are secured within institutional settings that do not require the mediation of the State. The shift that we need now to accomplish politically, not only theoretically, is to change the dominant wisdom from the absolute domination of the subject (as owner or State) over the object (territory or more generally the environment) to a focus on the relationship of the two (subject-nature). From anthropocentrism, constructed as the domain of the rights bearing individual to eco-centrism constructed as the domain of communal duties towards its members and the environment. We need to generalize an idea based on something like reciprocal care,( nutrition) within a type of dependence between the individual and earth which is either symbiotically or parasitically relational. We need a new common sense recognizing, outside of the Western liberal hubris, that each individual’s survival depends on its relationship with others, with the community, with the environment. The first necessary shift that becomes apparent is the move from a focus on quantity (the fundamental idea of the scientific revolution and of capitalist accumulation) to quality a key notion of the alternative holistic vision. Care, nutrition, and dependence are qualitative kinds of relationships, while the requirements of survival, as measured by the dominant technological perspective, are met in terms of a quantity constant for each individual entity (liters of water, Calories…). Quality differences belong to relationships and patterns, not to individuals, and thus cannot be accumulated.

Common property frameworks must use the “ecosystem” as a model, where a community of individuals or social groups are linked by a horizontal mutual connection to a network where power is dispersed; generally rejecting the idea of hierarchy (and competition, produced by the same logic) in favor of a participatory and collaborative model, which prevents the concentration of power in one party or entity, and puts community interests at the center. Only in such a framework social rights can actually be satisfied. In this logic a common (water, culture, the internet, land) is not a “commodity” but rather a shared conception of the reality which radically challenges with the arms of critique and sometimes with the critique of the arms (many movements of resistance especially in the South of the world are motivated by the defense of commons especially land and water against the rapacity of crony capitalist governments) the seemingly unstoppable trend of privatization\corporatization. This does not mean that a radical change of conception refusing all sorts of privatizations means a return of management to a bureaucratic, authoritarian or collusive public sector. Nor do we mean that the pre-enclosure commons can be restored by a return to a pre-modern logic. Rather we believe that we finally need a catalogue of best legal practices in participation to the commons in order to free ourselves from the ideology of the zero sum game between the market and the State. By understanding these genuine alternatives to corporatization we can develop and offer a viable legal and political alternative legitimized by the needs of survival of life on Earth.

* Conclusion

For the time being the way forward seems a highly diffused form of institutionalization of participative governance, stemming from spontaneous practices of struggle, able to engage directly in a cooperative spirit users and worker communities, in a dialectic capable of claiming back new turf for anti-corporate systems of production: As Article 43 of the Italian Constitution of 1948 clearly states : “For the purpose of general welfare the law can originally reserve or subsequently transfer through taking with compensation to the State, public entities or communities of workers or of users certain enterprises or categories of enterprises sharing aspects of fundamental general interest dealing with essential public services or with energy sources or with monopolies”. Today in Italy an impressive movement against privatization of water and corporatization of the public utilities has collected almost 1.5 million signatures to reverse a predatory law, making it mandatory the sale to corporations of public utilities, including the national water supply.

Political clarity on this point is essential because even today, despite the dramatic crisis of 2008, when the free market ideology has shown its catastrophic nature, State intervention dubbed Keynesian policy, has been utilized to transfer massive amounts of public money to the private sector. The logic of plunder shared by both the private and the state sector could not be more open. It should be clear that what we need is rather a very large extension of the commons framework to subvert the domination of private property (with its rhetoric of autonomy and of the rule of law) currently sustained by both the State and the market. Commons expansion favors the opposite logic of authentic participatory democracy in both the State and market domains. The agenda of “less government, less market, more commons” is, we believe, the only way to resurrect an alternative narrative of social inclusion (and direct satisfaction of social rights) capable of re-gaining hegemony. Translating these preliminary observations into an actual legal and institutional agenda able to obtain inclusion of those must vulnerable is no easy task, however if we are truly to understand the role of common assets in combating poverty and securing access to rights for the weak in society, we must unearth the legal and economic structural deficiencies at the heart of the issue." (