Introduction

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 http://www.bollier.org 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.The listings below were compiled by David Bollier, cofounder of the Commons Strategies Group. They were augmented and placed on this wiki by Michel Bauwens, founder of the P2P Foundation and cofounder of the Commons Strategies Group, in collaboration with Stacco Troncoso of Guerrilla Translation."

Introductory Bibliography

Law for the Commons: Premodern Sources

• Institutes of Justinian [1]

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 [2]

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. https://provisionaluniversity.files.wordpress.com/2012/12/peter-linebaugh-the-magna-carta-manifesto-liberties-and-commons-for-all-2008.pdf

- The BBC four-part radio series, “The Legacy of Magna Carta,” hosted by Melvyn Bragg. http://www.bbc.co.uk/programmes/b04y6wdt

• The Charter of the Forest [3]

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. http://bostonreview.net/archives/BR28.3/linebaugh.html

• The Enclosures of the England Commons

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 and the Levellers

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.”

Wikipedia entry: https://en.wikipedia.org/wiki/Gerrard_Winstanley The Gerrard Winstanley Archive: https://www.marxists.org/reference/archive/winstanley/1649/levellers-standard.htm

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.” [add link once document is completed in late August] 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."

Detailed and Expanded Bibliography

See, as of September: Reinventing Law for the Commons