Commoning as Vernacular Law

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Discussion

David Bollier:

"In effect, commoning is itself a form of law because it serves to organize people into orderly wholes to achieve shared ends. People are able to generate consensual rules, practices, and ethical norms that preserve both shared wealth and the community. I call this form of law and governance Vernacular Law, taking a cue from social critic Ivan Illich who celebrated vernacular practice as a way to re-humanize people caught up in systems of institutional domination.16

Today, most forms of Vernacular Law have been eclipsed by positive law enacted by legislatures to serve the interests of capital and the market economy. Custom has little stature here. Intent on building globally integrated value-chains to enhance capital accumulation, the leaders of market capitalism regard Vernacular Law as a vestigial oddity, a bothersome “friction” impeding market efficiency and growth. Ecologically minded or locally committed behaviors are often seen as hostile to business interests, which is one reason why World Trade Organization treaties seek to supersede state, provincial, and local self-determination.17 The mandarins of global trade regard the idea of subsidiarity – assigning authority at the lowest, most appropriate level in a system, or indeed, robust democratic sovereignty – as derailing the quest for a globally integrated system of commerce and law. (Not incidentally, it would also splinter and diminish corporate political influence over legislatures.)

In the face of such realities, the idea that the commons can effect transformational change from within the market/state system may seem quixotic. After all, commoners are not a terribly well-organized or visible constituency, at least in the traditional political sense. Their influence in elections, political parties, policy, and law is barely discernible. However, the unappreciated power of commoning is its ability to incubate durable new forms of consciousness, culture, and (in time) political power.

In The Human Condition, Hannah Arendt wrote that power is something that “springs up between men when they act together and vanishes the moment they disperse.”18 By this reckoning, power arises whenever people come together and organize themselves, and so it is always capable of being “created” and expanded. In effect, that is what commoning does. It is a quasi-sovereign, living social organism that empowers people to know, act and be, in ways unknown to the market/state system. When a community builds and manages its own Wi-Fi system (Guifi.net in Barcelona), controls its coastal fishery through peer governance (Maine lobsterman), shares services with each other via a timebank (hundreds of places around the world), or uses a local currency to keep value within a community (scores of examples around the world), a meaningful shift in experience and consciousness occurs. People do not enact and reproduce their roles as consumers and producers, or even as state-focused citizens. They enter into commoning and its ethos, logic, and sense of inclusive fairness. Everyone who participates in commoning incrementally contributes to the growth of a different culture. A shared discourse makes shared intentionality more feasible.

This development has political implications over time because, in a world of commoning, people are quite emotionally attached to the “care-wealth” that they love and depend upon. They do not have relationships with commodities or resources, but with things that belong to them in a deeper sense: ancient lands, beloved traditions, stable livelihoods, a sense of purpose and meaning. People’s lives become somewhat more enmeshed with each other; new social circuits emerge and proliferate. The iron grip of capital recedes, if only a bit, as people recover a sense of the local, affective, and collective. Life becomes more relational, and not merely transactional. Commoning becomes an enactment of Thomas Berry’s insight, “The universe is not a collection of objects, but a communion of subjects.”19 A sense of belonging and shared meaning emerges.

Commoners who manage their own fisheries, or contribute to open-access scholarly journals, or steward scarce supplies of irrigation water, or participate in CSA farms, or contribute to mutual aid networks, tend to realize how their activities offer relief from the relentless demands of neoliberal capitalism. Many see the commons as counter-hegemonic, as J. McCarthy writes, because it asserts “collective ownership and rights against relentless privatization and commodification” and resists the “neoliberalization of nature.”20 Such ideas are not policy opinions; they are convictions based on personal experience.

Geographer Andreas J. Nightingale notes how Scottish fishermen who manage their fisheries have developed “nonrational subjectivities” that stand in stark contrast to the market-based “rationality” of state policymaking.21 Working on small fishing vessels in the ocean is dangerous, difficult work, and so fishermen have learned the importance of cooperation and interdependence. Their lives are defined by “community obligations, the need to preserve kinship relationships [with fellow villagers], and an emotive attachment to the sea,” writes Nightingale. Vernacular law is an attempt to validate and protect the “nonrational subjectivities” of local commoners. State law, by contrast, often attempts to use law to impose a very different worldview on people using rigid rules and coercion. The crude limitations of state law are especially evident in clashes with indigenous peoples. In her account of conflicts between Maori communities and the New Zealand state over how ocean fisheries shall be used, scholar Anne Salmond notes that disagreements are not really political, economic, or policy-based. They are ontological. She calls the decades of conflict over the proper uses of ocean spaces as “ontological collisions at sea.”22 Where the state sees extractive resources, the Maori see living systems and sacred beings.

One reason that Vernacular Law is so potentially powerful is because commoning reveals that power – which is presumed to inhere in state institutions and officials – really resides in all of us, if only we can organize the collective institutions, social practices, and shared language to sustain it. Power is revealed as more immanent that we may imagine it to be. As geographers J.K. Gibson-Graham memorably put it, “If to change ourselves is to change our worlds, and the relation is reciprocal, then the project of history making is never a distant one but always right here, on the borders of our sensing, thinking, feeling, moving bodies.”23 Commoning is significant in catalyzing and manifesting this inner awareness while building new archipelagos of proto-political power. One sees this in various transnational federations: diverse digital commoners that work loosely with each other (Creative Commons, free and open source software, open access scholarly publishing, open science, and more); coordination among indigenous peoples worldwide (UN Working Group on Indigenous Populations); the global peasant-farmer network known as La Via Campesina; the Brazilian Landless Rural Worker Movement (known by its acronym MST); the fledgling network of urban commoners, especially in European cities; the Transition Town movement seeking to relocalize economies.

While these movements often feel compelled to seek supportive, or at least non-threatening policies, from state power, their primary long-term goal is the exercise of Vernacular Law. This means having the capacity to function as living social organisms capable of addressing unique situational realities using flexible, self-determined practices. A vexing question arises for conventional law and commoners alike: Can law in its current forms can provide sufficient authority and “epistemological awareness” to help commoning flourish? Belgian scholar Serge Gutwirth explains the challenge:

The commons demand a law that takes seriously the way they weave practices, sensibilities, modes of cooperation, vernacular habits, and interdependence into a local and self-sustainable, thus dynamic, whole.…The commons demand an inductive topic and ‘becoming’ law, rather than the one we know, which is abstract, axiomatic, deductive. The ‘law of the commons’ would rather have case-law and customs, than legislation and ‘doctrine’ as sources, since they [commons] generate their own law responding to the practical constraints of the interdependence of those who are engaged in their becoming.29

Conventional law posits universal principles that are presumptively binding in all localities and circumstances. But Vernacular Law enacted by commons recognizes a great many behaviors and circumstances that are local, time-specific, and not capable of being generalized. It is precisely the imposition of a rough-hewn universal law designed to impose state priorities and power that commoners find objectionable." (https://www.resilience.org/stories/2020-11-17/hacking-the-law-to-open-up-zones-of-commoning/?)