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

URL = http://www.law.seattleu.edu/Continuing_Legal_Education/Event_Archives/2009/Law_of_the_Commons.xml

Concept

Discussion: Towards more Law of the Commons

David Bollier:

"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)

Conference Description

"“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.”

More Information

For more information, visit http://www.law.seattleu.edu/Continuing_Legal_Education/Event_Archives/2009/Law_of_the_Commons.xml