Commoning as Vernacular Law
"An urgent practical question for commoners is how to stop enclosures and protect traditional practices, if possible through law. But can commoning be affirmatively protected via conventional state law while respecting the integrity of commoning as a post-capitalist social form? Can Vernacular Law and modern law be artfully blended, if only as a makeshift venture?
The primary burden for imagining transformations along these lines will rest, as it always does, on the subaltern – in this case, on commoners."
- David Bollier 
"The state has a keen interest in asserting the supremacy of its terms of legality over and against the legitimacy for alternative orders claimed by commoners. Political and corporate elites use state power, which includes formal law, bureaucratic rules, and jurisprudence, to fortify a market/state system around which their lives revolve. The guardians of state power, understandably, have a big stake in defending legality. They have far less interest in the vernacular norms, practices, and experiences of ordinary people that embody a different vision of “law.” Commoners may not have legality on their side, but they often command a great deal of street cred.
The discrepancy between legality and legitimacy is the spot of vulnerability that holds opportunities for counter-hegemonic legal strategies, or legal hacks. Creative legal draftsmanship can often repurpose state law in ways not originally imagined or intended by lawmakers. The attempt to use law to serve different, unanticipated ends is not just a matter confined to the legal universe. The point is to hack out a new zone of legality from within existing law, and then to fill that zone with social and political action. This can leverage popular legitimacy and community practice to establish a “new legality.” The remainder of this chapter will review several examples."
"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.
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.” 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.” 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. 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.” 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/?)
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.52 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.""