Law of the Commons
= Concept but also a conference devoted to “The Law of the Commons.” Organized by the Seattle Chapter of the National Lawyers Guild, the Seattle University School of Law
Discussion: Towards more Law of the Commons
"historically, most commons have not needed nor sought formal protections of law. Their self-organized customs and relative isolation from outside capital and markets, were enough to sustain them. This has changed dramatically over the past thirty or forty years, however, as global commerce technology and conventional property law have expanded relentlessly, superimposing the logic and values of markets on nearly every corner of nature and social life.
Our common wealth is vulnerable because typically the state has no formal, clear property rights protecting them. Indeed, the state has little interest in granting or clarifying collective property interests because it would prefer to collude with investors and corporations to privatize this collective wealth. As usual, invoking the tragedy parable, the state presumes that only the private appropriation and monetization of common wealth can produce prosperity and human progress. Expansive private property rights are crucial instruments in advancing this process. And inequality, Pikketty and others have documented, is an inevitable result.
I wish to suggest, therefore, that – apart from some of the redistributionist strategies mentioned yesterday – the commons is a vital tool for assuring a more equitable predistibution of wealth for all. By that, the commons provides the most durable, structurally effective way to ensure that people’s basic needs are met – and this in turn will foster greater political equality. Citizens must have legally guaranteed access to and use of the resources that they require for their survival, dignity and cultural identity.
If we truly wish to address inequality, then we must find ways to reclaim the commons and reinvent the Law of the Commons. (Re)inventing the Law of the Commons may sound way ambitious, but consider this: People in the thirteenth century arguably had stronger legal rights to subsistence and survival than people do today. Thanks to Magna Carta and its companion document, the Charter of the Forest, people had guaranteed legal access to the forest to gather firewood, water for drinking and planting, acorns for their pigs, the right to hunt wild game and collect fruit, and much else.
Commoners had legal access to the means of production and subsistence – which is more than contemporary markets and many states are willing to guarantee today. If you ain’t got the do re mi, as Woody Guthrie put it, you’re out of luck." (http://bollier.org/blog/property-rights-inequality-and-commons)
What Role should Property Law play in the revival of a Law of the Commons?
"What role should property law play in all of this? If the commons is a richly generative system for meeting people’s needs, then surely property law ought to take account of this fact. Unfortunately, as I mentioned earlier, traditional property law simply does not recognize the actual value of commons.
I am happy to report, however, that there is a massive amount of legal innovation already underway to protect the commons, using property rights and other forms of law. Our ambitious challenge, I would argue, is to invent a new amalgamated field of inquiry that I call the Law of the Commons.
This is a complicated challenge, mostly because the modern liberal polity and conventional law are philosophically hostile to the commons. A system of law focused on individual rights, private property and economic growth, is not especially receptive to the paradigm of the commons. Most commons-based legal innovations that I’ve encountered amount to hacks – i.e., they are ingenious subterfuges and creative workarounds to the standard forms of state law.
This is exactly what Richard Stallman and the free software movement did in inventing the General Public License, of GPL, which provided a critical legal foundation for the evolution of free and open source software. It’s what Larry Lessig and his colleagues did in inventing the Creative Commons licenses, another copyright-based license that turns copyright law inside out to make creative works automatically shareable rather than automatically private property.
Let me quickly review some of the more significant forms of commons-based law that commoners are putting forward these days.
In the global South, in order to subsistence commons, some indigenous peoples have been rallying around a legal instrument known as “biocultural protocols,” which the South African group Natural Justice developed. The protocols are seen as a way to protect indigenous peoples from the market enclosures that would otherwise be sanctioned by international trade treaties, by declaring agro-ecological and cultural practices off-limits to markets and trade.
In India, ever since its Supreme Court formally recognized commons in a landmark 2012 ruling, Indians have been attempting to work out the legal and political implications of managing all sorts of commons such as forests, farmland and water. There are also fascinating legal innovations such as the Potato Park in Peru, which gives indigenous peoples near Cusco the right to manage their “agroecological heritage landscape.”
Stakeholder trusts are a new frontier of legal innovation, especially in the US. These are state-chartered trusts to collect, manage and distribute revenues from natural resources such as oil, water, minerals and forests. The great precedent for this is the Alaska Permanent Fund, which generates about US$1,000 a year for every resident of Alaska – a rare source of non-wage income for ordinary people. Commons scholar Peter Barnes has expanded this idea to apply to many other common assets, in his book, Liberty and Dividends for All in an attempt to deal concretely, and with direct cash payments, to address in inequality.
New sorts of legal frameworks for digital commons are a robust field of innovation as well. There is now an attempt to move beyond copyright based licenses on open platforms, such as the GPL and Creative Commons licenses, to enable digital communities to retain for themselves the surplus value that they create. Michel Bauwens of the P2P Foundation has proposed commons-based reciprocity licenses – of what he calls CopyFair – to ensure that digital communities can reap any monetization of their content from commercial users, while allowing non-commercial users to continue to use the work for free. In a similar fashion, there are now efforts afoot to develop seed-sharing licenses so that farmers can protect their seeds from third parties who might appropriate and patent them.
The blockchain ledger, as pioneered by Bitcoin, may be one of the most revolutionary innovations in the Law of the Commons. This technology is significant because it allows digital identity authentication and secure transfers of assets without third-party guarantors like banks or governments. Although Bitcoin has used the blockchain ledger for standard libertarian, capitalist purposes, especially speculation, the technology can be used to facilitate social cooperation in radically new ways – in effect, moving law from the oral and written to digital media.
One important offshoot that many “computational lawyers” are working on is smart contracts, algorithm-based technologies that would new sorts of network-based contracts that could be negotiated on the fly, online, without the standard written contracts and lethargic court system. This, too, is an important realm of new types of commons-based law.
Co-operative law is another form of commons-based law that is reviving many little-used historical models while developing new types of governance. For example, there are many multistakeholder co-operatives in Italy and Quebec that go beyond worker and consumer co-op models, to empower third-parties to participate in such things as eldercare and social services.
The Sustainable Economies Law Center in Oakland, California, is exploring new forms of co-operative governance to empower members. Old forms like community land trusts and “garden cities” – in which the city owns the water systems, land and other infrastructure, which it mutualizes for everyone’s benefit – are experiencing a revival.
There are many important experiments in urban commons underway, many of which require legal innovation. One of the most significant is the Bologna Regulation in Bologna, Italy, which is remaking local government by inviting ordinary citizens and neighborhoods to self-organize their own projects – urban agriculture, care of public spaces, parent-run kindergartens, “social street” programs – which the city then helps. The city now has more than 90 “pacts of cooperation” with self-nominated groups in three thematic areas – “living together, growing together and making together.”
Along the same lines, a San Francisco-based group called Shareable has developed a series of papers outlining “Shareable Cities” policies, which are aimed at helping city governments work with residents to develop “sharing projects” ranging from car-sharing to tool-sharing to neighborhood services. A number of cities such as Linz, Austria, are pioneering open digital platforms for urban renewal by making all sorts of information available online for free.
I have not yet mentioned the many new legal initiatives attempting to strengthen local self-determination, mostly through community ordinances and so-called community charters. There are also new organizational forms such as “omni-commons,” which provide administrative, fiscal and legal assistance to help incubate small enterprises with a commons orientation.
At an even larger level, there are many legal initiatives underway attempting to re-imagine governance according to commons principles. Some of these look to the public trust doctrine in environmental law to uphold the interests of commoners, as in a series of lawsuits seeking to force governments to deal with climate change. Others, such as a project by some Italian jurists, are trying to establish a human right of people to access and use common assets, protecting them from market enclosure. Just a few months ago, French legal scholars held a conference on European juridicial strategies for the commons.
We are seeing a remarkable burst of creativity to find new structures of law – in contract law, trusts, co-operative law, municipal government, copyright and patents, organizational charters, and more – to protect the social practices of commoning and the values it stands for.
What is this all about, ultimately? It’s about honoring the sovereignty of people to devise their own forms of governance to meet their needs and local context. It’s about the importance of bottom-up initiatives and participation, and of transparency and accountability. It’s about meeting people’s needs without relying on the dysfunctional formalities of bureaucracy, the market/state duopoly of power, or the social inequities associated with markets.
Given the explosion of legal creativity in creating, maintaining and protecting commons, old and new, I have high hopes that this new field of legal inquiry, the Law of the Commons, will help move us beyond the limits of conventional law, governance and bureaucracy. At bottom, the Law of the Commons is about nurturing the social norms, policy structures and institutional practices that can help human beings flourish. There is a great deal of research, creative theorizing and activist experimentation that must proceed, but I believe that commoning, as enabled by a reinvented Law of the Commons, will help address some of the most urgent ecological, social and political problems of our time." ((http://bollier.org/blog/property-rights-inequality-and-commons))
"“A dominant concept of British and American civil law is that everything is based on property rights, and it is the lawyer’s job to protect and exalt those rights. This program will offer attorneys a different set of glasses through which to view the traditional property-based legal structure. Although legal concepts of ‘property,’ overlaid on fundamental concepts of ‘common law,’ have antecedents that long predate the U.S. Constitution, in the 21st Century, these ‘common law’ antecedents, together with science and computer technology, have developed along a new legal trajectory that many attorneys and judges still do not have the experience or knowledge to appreciate.”
The program will focus on such themes as personal and communal property as it plays out in science, technology, culture, natural resources and civil rights. Among the distinguished speakers planned: Peter Linebaugh, a history professor at the University of Toledo and author of the Manga Carta Manifesto talking about “Magna Carta and the Commons: the Ultimate Stare Decisis”; Eben Moglen, a law professor at the Columbia School of Law and the long-time general counsel of the Free Software Foundation and founding director of the Software Freedom Law Center, talking about “Free & Open Software: Paradigm for a New Intellectual Commons”; Beth Elpern Burrows “Research, Technology Transfer and the Theft from the Commons”; and Laura Nader, an anthropology professor at the University of California Berkeley, talking about “The Law of the Commons, or Lawyers against the commons.”
For more information, visit http://www.law.seattleu.edu/Continuing_Legal_Education/Event_Archives/2009/Law_of_the_Commons.xml