Legal Hacks as a Strategy for Commons-Based Social Change
"The future impact of legal hacks in empowering commons and transforming state power remains an open question. Much will depend upon the beleaguered fortunes of the market/state system in the years ahead as well as on the tenacity of commoners in pressing for new modes of governance and provisioning. Still, as a mid-term strategy that seizes available opportunities to decriminalize commoning and create protected spaces for it, legal hacks are an important, promising tool. They can exploit state legality in unexpected ways to open new zones for commoning. And they can disrupt the inertia and staid thinking that so often afflicts mainstream political life, policymaking, and progressive activism.
Legal hacks stand as a way to revivify Vernacular Law, giving it standing and impact. This has great appeal in its own right. While legal hacks remain fairly rare and underdeveloped, they open up attractive ways for people to gain greater direct control over important aspects of their lives. They help people insulate themselves from the predatory forces of capital-driven markets. And hacks may also serve to weaken the influence of unaccountable state power, which indirectly helps strengthen democratic sovereignty.
Finally, legal hacks begin a process to bridge the chasm that separates state legality and vernacular legitimacy. At this point it is unclear where such a process might lead, and how rapidly. But legal hacks can be effective strategies for changing the exercise of state power, making it more supportive of commoning." (https://www.resilience.org/stories/2020-11-17/hacking-the-law-to-open-up-zones-of-commoning/?)
It may be premature to try to theorize about the dynamics of legal hacks or develop a coherent typology of them. Part of the point is that unpredictable experience, not theory or other regularities, drives the process. It’s not always clear when legal feasibility will intersect with social need and interest, nor how special circumstances and individual leadership may be critical. Too, the actual significance of a legal hack may not be initially known, and post hoc assessments may be skewed as well. The CC licenses are now so widely accepted and commonplace that an Internet user in 2019 might never realize that it took a heroic mobilization of law scholars and activists in the early 2000s to develop and popularize the then-daring idea.
With these caveats in mind, I wish to introduce other legal hacks to suggest the breadth of possibilities. I focus on three general areas – catalyzing new social norms, innovative organizational forms, and commons/public partnerships – which constitute a small subset of the areas for which legal hacks are being invented.
The GPL and CC licenses are clearly prime instances of using a legal hack to validate and popularize new social norms. There are others worth mentioning. The Open Source Seed Initiative (OSSI) – launched by a number of farmers, seed breeders, and others – clearly attempts to emulate the free licenses used by free and open source software. The OSSI license gives a user the right to share the seed and any future derivations so long as the user make them available for public use. (A fuller description of the OSSI, by Maywa Montenegro, can be found in Chapter xy.) This license is a significant legal hack because it challenges the standard industry practice of locking up seeds through patents and subjecting their genetic information and use to restrictive proprietary licenses.
As Montenegro explains, a companion effort by like-minded farmers and seed breeders has chosen to eschew patent licensing and instead use a quasi-legal Pledge to “ensure that germplasm can be freely exchanged now and into the future.” As Montenegro explains, the Pledge abandons the putative power of formal law – legality – and boldly embraces moral suasion, normative practice, and public shaming as the best way to protect seeds from enclosure. In other words, commoning, not state law, is seen as the more practical, powerful tool. “The Pledge is much simpler and much more powerful as a discursive tool,” said seed activist Jack Kloppenburg. “The license approach is cumbersome [and] over-legalized in our view.”
The Community Environmental Legal Defense Fund
The CELDF, based in Pennsylvania, has pioneered a fascinating strategy to use local ordinances to change social and political views.47 Its general approach is to use municipal ordinances, home rule charters, and other legal strategies to preserve local governance over things that matter to the community. CELDF has, for example, helped communities enact local ordinances that recognize the “rights of nature,” prohibit fracking, and ban big-box retailers Even though courts at the state and federal levels are unlikely to uphold many of these legal gambits, CELDF apparently sees them as a powerful way to provoke potential test cases and call into question the moral and political credibility of state law.
Within the framework of law governing corporations, cooperatives, and nonprofits, for example, there is often sufficient leeway to develop legal regimes that are hospitable to commoning as a dynamic, evolving social form. One of the pioneering explorers of new possibilities is Janelle Orsi, founder of the Sustainable Economies Law Center, in Oakland, California. The SELC specializes in developing innovative governance regimes for cooperatives, digital communities, land trusts, shared housing, and other commons.48 By changing the bylaws and financial structures governing cooperatives, for example, Orsi and her team attempts to build movement cooperatives, not just consumer cooperatives; decentralized organizations designed to grow from the grassroots; self-managed staff collectives; and permanent community ownership.49 To enhance this process, SELC makes the boring, arcane aspects of organizational bylaws more accessible through plain-English, cartoons, and diagrams. While such legal hacks may not sound dramatic, they are a frontier in rethinking organizational governance. They also have started to raise ambitions for enlarging the scope of democratic peer governance.
One of the most creative uses of organizational forms to protect commoning may be the Indigenous Biocultural Heritage Area, or Potato Park, created by indigenous Quechua people of Peru. This is a sui generis legal regime that authorizes the Quechua to act as stewards of the unique biodiversity of the region, which features more than 900 different types of native potatoes.50 By having a legal instrument that can be recognized by Peruvian courts to protect the agrobiodiversity of some 12,000 hectares, the Quechua have greater assurance that they can live in their ancient ways, in intimate reciprocal relationship with the land, each other, and the spirit world.51 Equally important, the Quechua’s legal protections help them protect their ancient commons against ag-biotech companies that wish to appropriate and patent the genetic information of rare varieties of potatoes.
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/?)
Creative Hacks on Copyright Law: Two Iconic Successes
Perhaps it is helpful to start with two of the most seminal and effective legal hacks in recent history — the General Public License (GPL) for software and six Creative Commons (CC) licenses for digital and other content. Copyright law is intended to privatize control over all creative works and information, based on the premise that would-be creators need the incentive of monopoly control over their work in order to produce in the first place and earn revenue. These two legal hacks, the GPL and CC licenses, dramatically reverse the intentions of copyright law by making works legally shareable in perpetuity, without any permission or payment required. The copyright holder merely affixes the license notice to his or her work (software code, music, text, etc.), which thereby grants formal legal permission to anyone to copy, re-use, modify, and share a work under the terms specified by the license.36 Both of these hacks, instigated by Richard Stallman of the Free Software Foundation and Professor Lawrence Lessig and a merry band of legal scholars and activists, represent bold private hacks on a well-established legal form.
The introduction of the GPL in 1985 (and more significantly, its second iteration in 1991) and the CC licenses in 2004, has had an enormous impact in legalizing the sharing of works. Both empowered people to share their works with the general public without paying the costs and overcoming cash-hungry gatekeepers to the market (such as publishers, broadcasters, or film studios). The licenses arrived just as network effects were becoming a significant marketplace and cultural phenomena. This is the idea, barely understood idea in the early 2000s, that making works freely available on open networks greatly enhances their value, rather than diminishing it. One wag, channeling Oscar Wilde, observed, “The only thing worse than being sampled on the Internet is not being sampled.”37
The GPL gave rise to a burgeoning world of free software (meaning “freely available,” not necessarily no-cost). In time, the GPL inspired the birth of a cousin, open source software, based on similar licenses that have revolutionized software development by decommodifying a central resource of the trade. The Linux computer operating system emerged out of nowhere to compete with proprietary systems like Windows, and countless open source programs have become the engines powering the Internet and digital marketplaces.
As for the CC licenses, they initially spurred a burgeoning video mashup and music remix scene, and went on to catalyze the rise of more than 12,000 open access scholarly journals,38 the open educational resources (OER) movement,39 open data initiatives40 and open textbooks,41 among many other projects to make knowledge more accessible. An estimated 1.4 billion works worldwide used the CC licenses in 2017, providing an enormous pool of legally shareable books, reports, Web content, photos, videos, music, and more.42 Behind all this “open content,” and not necessarily seen, are thousands of commoners engaging in a mode of provisioning known as “commons-based peer production.”43
While the impact of the GPL and CC licenses has been enormous, the actual impact of legal hacks is variable and unpredictable. Some attempts fizzle, perhaps because they are not truly defensible in courts; others may have negligible impact because as a practical matter they may not attract people to participate in new zones of commoning. That said, many artfully designed and well-timed legal hacks do end up unleashing powerful social energies and even forge movements. One might say that the “master’s tools” can be used to dismantle the master’s house, at least in the sense that they may trigger a dynamic dialectic between law and social action. The jolts of new possibility caused by legal hacks may attract new players to a scene, induce creative experimentation, or in other ways open up new affordances for change. Consider how the fairly prosaic legal innovation of CC licenses have brought legal sharing to a variety of unexpected corners, including major websites such as Google Images, YouTube, Flickr, Wikimedia Commons, Jamendo, and Europeana.
The short history of the GPL and CC licenses is instructive in showing how, even though a legal hack may not effect a legal revolution or transform capitalism, it may nonetheless propel transformational behaviors. In the early 2000s, some leftists criticized the CC licenses as mere reformism because the licenses are based on capitalist property law (copyright). Yet the licenses’ greatest impact may have been outside of the law, in building a diversified social, academic, and cultural movement based on everyday sharing practices. The true significance of legal hacks may lie in their capacity to facilitate social action and movements. That is no small thing when commoners, immured within a stifling market/state order, have few options but to play the cards they are dealt. Improvisation and opportunistic brilliance make the most of necessity. Progress does not proceed along straight lines, but from zigs and zags through an uncharted frontier. Sometimes the results are impressive." (https://www.resilience.org/stories/2020-11-17/hacking-the-law-to-open-up-zones-of-commoning/?)
- See David Bollier’s review of more than sixty legal hacks in “Reinventing Law for the Commons,” September 4, 2015, at https://www.boell.de/en/2015/09/04/reinventing-law-commons.