At the upcoming COP Summit in Paris (the UN Framework Convention on Climate Change), no one expects the world’s governments to make serious headway against global climate change. Neoliberal-obsessed governments are more concerned with propping up collapsing capitalist structures than in reducing carbon emissions (which have doubled over the past generation). Corporations are more intent on preserving their market share and investors in preserving their net worth than in entertaining an environmentally benign economic paradigm shift. We can be sure, following COP21, however, that world leaders will declare the event a success and let loose their own copious emissions of PR blather.
Let’s face it – we’re more or less on our own. The impetus for change has to come from the bottom and the local.
Which brings me to the inspirational work of POC21 – Proof of Concept 21 – which stands for “a proof of concept that the future we need can be built with our own hands.” For five weeks – August 15 to September 20 – more than 100 makers, designers, engineers, scientists and geeks converged on Château de Millemont, an ancient castle near Paris. Their mission: to work together in developing prototype machines that could radically reduce our dependence on carbon fuels.
The idea of POC21 is to invent inexpensive, modular household devices, farm tools, energy systems and other appropriate technologies that can be replicated cheaply, repaired easily and copied and shared by anyone. “Imagine a new breed of open source products available in your neighborhood,” POC organizers have announced. “This is our vision.”
Below are the final sections of the memo, "Reinventing Law for the Commons," whose three earlier parts were excerpted over the past several days. The wiki of examples in Part II can be found on the Commons Transition website, and the final document can be downloaded here.
III. The Strategic Value of Developing Law for the Commons
Some Legal and Philosophical Reflections
Having surveyed a rather remarkable array of commons-based law initiatives, it is worth pausing for a moment to reflect on their significance for law, governance and politics. These innovations in commons-based law challenge the tacit premise that the best, most natural system of governance and social order is the market/state, as dominated by transnational corporations and capital. Law for the Commons attempts to open up new spaces through which commoners can have greater freedom and autonomy to devise governance forms of their own making, conBsistent with overarching principles of democracy and human rights. It is perhaps risky to stipulate a specific set of principles that a Law for the Commons seeks to uphold, but there are clearly affinities among the diverse examples described above. In different ways, commons projects are attempting to use law to achieve these purposes:
Provide structure for internal, participatory, bottom-up deliberation and governance (e.g., omni-commons, subsistence commons, Loomio, DemocracyOS);
Protect shared assets that are threatened by market enclosure (e.g., stakeholder trusts, blockchain ledger, community charters);
Provide a legal structure and identity to commons so that they can be legally cognizable to the state or international law (e.g., omni-commons, biocultural protocols for indigenous peoples, Terms of Service for peer production);
Provide commoners with access to state law to enforce their practices and norms (e.g., General Public License, Creative Commons licenses, community land trusts);
Secure state authority for commoning by modifying or extending state law through legal “work-arounds” (e.g., copyright-based licenses, stakeholder trusts, multistakeholder co-operatives, Bologna Regulation for urban commons);
Openly challenge recognized boundaries of law as a way to provoke a political debate or validate a particular commons (e.g., community ordinances; biocultural protocols; the commons-based foundation for Teatro Valle in Rome); and
Use digital technologies to create superior functional alternatives to state law (e.g., open value networks, smart contracts, the blockchain ledger).
The very idea of Law for the Commons constitutes a profound philosophical challenge to the liberal capitalist polity. After all, many commons seek to enact different ideals of human flourishing and governance than the formal, universal and rational/utilitarian ones of the modern liberal state and neoliberal economics. In this sense, Law for the Commons as it expands could help propel a paradigm shift because it asserts a differenttheory of value than that of conventional economics and the (formally) neutral apparatus of the liberal state. Law for the Commons generally rejects capital accumulation and market exchange as the default engine of social and economic progress, and in this sense proposes a very different vision of human development.
So what might a commons-based economy actually look like in its broadest dimensions, and how might we achieve it? My colleague Michel Bauwens of the P2P Foundation offers a remarkably thoughtful and detailed explanation in a just-released YouTube talk, produced by FutureSharp. It’s not really a video – just Michel’s voiceover and a simple schematic chart – but the 20-minute talk does a great job of sketching the big-picture strategies that must be pursued if we are going to invent a new type of post-capitalist economy.
Michel focuses on the importance of three specific realms that are crucial to this new vision – ecological sustainability, open knowledge and social solidarity. Each is critical as a field of action for overturning the existing logic of market capitalism.
Fortunately, there are many promising developments in each of these realms. Many parts of the environmental movement seek to go beyond the standard “market-oriented solutions.” There is a growing body of open source-inspired projects for software code, information, design and physical production, which is now spawning new types of global sharing of information with distributed local production. And there are many advocates and initiatives for social justice and fairness in the economy, such as cooperatives and the solidarity economy movement.
The problem, says Bauwens, is that these movements do not generally connect with each other or coordinate internationally. He therefore sees the need for “meta-economic networks” to bridge these fields of action. So, for example, we need “open cooperativism” enterprises to bridge open knowledge systems and cooperatives, so that open network (or licensed) systems are not simply dominated by large corporations in the way that Google, Uber and Airbnb have done. We also need to develop an “open source circular economy” to bridge the worlds of eco-sustainability and open knowledge. We will never address major environmental problems if the technological and product solutions are based on proprietary knowledge; open circulation of knowledge can change that.
I recently spoke at a conference, “Property and Inequality in the 21st Century,” hosted by The Common Core of European Private Law, an annual gathering of legal scholars, mostly from Europe. They had asked me how the commons might be a force for reducing inequality. Below are my remarks, “The Commons as a Tool for Sharing the Wealth.” The conference was held at the University of Göteborg, Sweden, on June 12-13, 2015.
Thank you for inviting me to speak today about the relationship between property law and inequality – a topic that receives far too little attention. This should not be surprising. Now that free-market ideology has become the default worldview and political consensus around the world, private property is seen as synonymous with freedom, economic growth and human progress.
Oh yes, there is this nasty side issue known as inequality. Malcontents like the Occupy movement and renegade economists like Thomas Pikketty have brought this problem to the fore after years of neglect. Their success has been quite an achievement because for years the very existence of inequality has been portrayed as an accident, an aberration, a mysterious and shadowy guest at the grand banquet of human progress.
I wish to argue that hunger, poverty, inadequate education and medical care, and assaults on human dignity and human rights, are not bugs in the system. They are features. Indeed, market ideologues often argue that such deprivations are a necessary incentive to human enterprise and economic growth; poverty is supposedly needed to spur people to escape through the work ethic and entrepreneurialism.
Property rights lie at the heart of this dynamic because they are a vital tool for defining and patrolling the boundaries of private wealth, and for justifying the inevitably unequal outcomes. So it’s important that we focus on the role of property rights in producing social inequality – without ignoring the many other forces, including social practice, culture and politics, that also play important roles.
I’d like to focus on the obsession in modern industrial societies to propertize everything, including life itself, and to use law as a tool to impose a social order of markets and private property as expansively as possible. This cultural reflex is known as the enclosure of the commons. The term describes how property owners assert sweeping rights – often with the active complicity of governments – as a way to appropriate collectively owned resources for private gain.
We can see this dynamic in the international land grab now underway, the incessant attempts to privatize groundwater and municipal water systems, the grotesque expansion of copyright and patent law to privatize scientific knowledge and cultural works, and the use of the Earth’s atmosphere as a free waste dump by polluters. The mania for privatizing the world has reached such an extreme stage that even intangible wealth as public spaces, microorganisms, genetically created mammals, artificially created nanomatter and human consciousness itself are claimed as objects of private property rights.
Anarchist anthropologist David Graeber argues in his recent book, The Utopia of Rules, that bureaucracy is the standard mechanism in contemporary life for coercing people to comply with the top-down priorities of institutions, especially corporations and government. Anyone concerned with the commons, therefore, must eventually address the realities of bureaucratic power and the feasible alternatives. Is there a more human, participatory alternative that can actually work?
The good news is that the City of Bologna, Italy, is pioneering a new paradigm of municipal governance that suggests, yes, there are some practical, bottom-up alternatives to bureaucracy.
Two weeks ago, the city government celebrated the first anniversary of its Bologna Regulation on public collaboration for urban commons, a system that actively invites ordinary citizens and neighborhoods to invent their own urban commons, with the government’s active assistance. I joined about 200 people from Bologna and other Italian cities on May 15 for a conference that celebrated the Regulation, which is the formal legal authority empowering citizens to take charge of problems in their city.
How does the program work?
It starts by regarding the city as a collaborative social ecosystem. Instead of seeing the city simply as an inventory of resources to be administered by politicians and bureaucratic experts, the Bologna Regulation sees the city’s residents as resourceful, imaginative agents in their own right. Citizen initiative and collaboration are regarded as under-leveraged energies that – with suitable government assistance – can be recognized and given space to work. Government is re-imagined as a hosting infrastructure for countless self-organized commons.
To date, the city and citizens have entered into more than 90 different “pacts of collaboration” – formal contracts between citizen groups and the Bolognese government that outline the scope of specific projects and everyone’s responsibilities. The projects fall into three general categories – living together (collaborative services), growing together (co-ventures) and working together (co-production).
In the 1990s, many communities in central Oregon were torn asunder by the “War of the Woods.” Environmentalists had brought lawsuits against the U.S. Forest Service for violating its own governing statutes. For decades, timber companies had been allowed to clear-cut public forests, re-seed with tree monocultures, and build ecologically harmful roads on mountain landscapes.
Environmentalists won their lawsuit in 1991 when a federal judge issued an injunction that in effect shut down timber operations in the Pacific Northwest of the US. While the endangered northern spotted owl was the focus of much of the debate, the health of the entire ecosystem was at risk, including the Pacific salmon, which swim upstream to spawn.
There is often no substitute for litigation and government mandates, and the 1991 litigation was clearly needed. But what is really interesting is the aftermath: Rather than just designating the forest as a wilderness preserve off-limits to everyone, the Forest Service instigated a remarkable experiment in collaborative governance.
Instead of relying on the standard regime of bureaucratic process driven by congressional politics, industry lobbying and divisive public posturing, the various stakeholders in the region formed a “watershed council” to manage the Siuslaw National Forest. Twenty years later, this process of open commoning has produced a significant restoration of the forest ecosystems, implicitly indicting the previous forest management regime driven by politics and the formal legal system.
This story is told in a wonderful thirty-minute film documentary, “Seeing the Forest,” produced by writer and filmmaker Alan Honick, with support from Forest Service Employees for Environmental Ethics. Honick writes how the public lands in Oregon contained most of the remaining old growth forests outside of protected parks:
These were complex and ancient ecosystems, particularly on the west side of the Cascades, where the moisture from Pacific storms gave rise to rich and diverse temperate rainforests. Hundreds of species of animals and plants depended on this habitat to survive.
For 40 years, these forests were logged with the same industrial methods practiced on private land. Vast swaths were clearcut, then densely replanted with monocultures of the fastest growing trees. When they reached sufficient size, they were scheduled to be clearcut and replanted again, in an ongoing cycle considered sustainable by those who employed it.
The aftermath of the 1991 litigation could have been simmering hostility and litigation, which would likely flare up again. It was based on the old, familiar narrative of “jobs vs. the environment,” a debate that government was supposed to mediate and resolve.
In Oregon, however, it was decided to develop a “Northwest Forest Plan” that inaugurated a new space and shared narrative. The Siuslaw Watershed Council invited anyone with an interest in the forest to attend its open, roundtable meetings, to discuss how to manage the forest and resolve or mitigate the competing interests of timber companies, environmentalists, recreational fishers, local communities, hikers, and others. Outcomes were based on consensus agreement.
By identifying “care” as an essential category of value-creation, Praetorius opens up a fresh, wider frame for how we should talk about a new economic order. We can begin to see how care work is linked to other non-market realms that create value -- such as commons, gifts of nature and colonized peoples --all of which are vulnerable to market enclosure.
The basic problem today is that capitalist markets and economics routinely ignore the “care economy” -- the world of household life and social conviviality may be essential for a stable, sane, rewarding life. Economics regards these things as essentially free, self-replenishing resources that exist outside of the market realm. It sees them as “pre-economic” or “non-economic” resources, which therefore don’t have any standing at all. They can be ignored or exploited at will.
In this sense, the victimization of women in doing care work is remarkably akin to the victimization suffered by commoners, colonized persons and nature. They all generate important non-market value that capitalists depend on – yet market economics refuses to recognize this value. It is no surprise that market enclosures of care work and commons proliferate.
A 1980 report by the UN stated the situation with savage clarity: “Women represent 50 percent of the world adult population and one third of the official labor force, they perform nearly two thirds of all working hours, receive only one tenth of the world income and own less than 1 percent of world property.”
The Catalan Integral Cooperative (CIC, pronounced “seek”) is surely one of the more audacious commons-based innovations to have emerged in the past five years. It is notable for providing a legal and financial superstructure that is helping to support a wide variety of smaller self-organized commons. Some of us are calling this proto-form an “omni-commons,” inspired by the example of the Omni Commons in Oakland.
CIC is smart, resourceful, socially committed and politically sophisticated. It has bravely criticized the Spanish government’s behavior in the aftermath of the 2008 financial crisis, which has included massive bank bailouts, foreclosures on millions of homes, draconian cutbacks in social services, a lack of transparency in policymaking. CIC regards all of this as evidence that the state is no longer willing to honor its social contract with citizens. Accordingly, it has called for civil disobedience to unjust laws and is doing everything it can to establish its own social order with a more humane logic and ethic.
Journalist Nathan Schneider provides a fascinating, well-reported profile of CIC in the April issue of Vice magazine. The piece focuses heavily on the role of the visionary activist Enric Duran, who in 2008 borrowed $500,000 from banks, and then he gave the money away to various activist projects. Despite being on the run from Spanish prosecutors, Duran went on to launch CIC in early 2010 with others.
His avowed goal is to build a new economy from the ground up. CIC is a fascinating model because it provides a legal and financial framework for supporting a diverse network of independent workers who trade with and support each other. This is allowing participants to develop some massive social and economic synergies among CIC's many enterprises, which include a restaurant, hostel, wellness center, Bitcoin ATM, library, among hundreds of others.
As Schneider writes:
At last count, the CIC consisted of 674 different projects spread across Catalonia, with 954 people working on them. The CIC provides these projects a legal umbrella, as far as taxes and incorporation are concerned, and their members trade with one another using their own social currency, called ecos. They share health workers, legal experts, software developers, scientists, and babysitters. They finance one another with the CIC's $438,000 annual budget, a crowdfunding platform, and an interest-free investment bank called Casx. (In Catalan, x makes an sh sound.) To be part of the CIC, projects need to be managed by consensus and to follow certain basic principles like transparency and sustainability. Once the assembly admits a new project, its income runs through the CIC accounting office, where a portion goes toward funding the shared infrastructure. Any participant can benefit from the services and help decide how the common pool is used.
Can law be used to protect and advance the commons? One of the most promising new developments here is a new jurisprudence of “biocultural rights.” Biocultural rights represent a bold new departure in human rights law that recognizes the importance of a community’s stewardship over lands and waters. Instead of focusing on individual rights and private property, biocultural rights explicitly recognize a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape. In other words, it recognizes the existence of a commons.
The history and character of biocultural rights are wonderfully explained in a recent law review article in the Journal of Human Rights and the Environment. The article, “Community Stewardship: The Foundation of Biocultural Rights,” is by Kabir Sanjay Bavkiatte, a cofounder of Natural Justice, an international collective of environmental lawyers, and Thomas Bennett, a professor at the university of Cape Town, South Africa. (Vol. 6, No. 1, March 2015, pp. 7-29)
Here’s an abstract of the article:
The term ‘biocultural rights’ denotes a community's long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.
Certain core principles lie at the heart of biocultural rights, write Bavkiatte and Bennett. These include “non-discrimination, protection of cultural integrity, self-government, title to lands and natural resources, together with social welfare for economic well-being.”
The authors concede that “international lawyers have undertaken little or no research into the development of biocultural rights” – something that this article sets out to rectify. They argue persuasively, however, that these rights have clearly surfaced in a variety of international covenants, declarations, conventions and codes of conduct.
Biocultural rights as a new field of law have not emerged magically on their own, but through the convergence of four interrelated movements that have contributed important ethical principles, legal concepts and political advocacy. Together, these movements have brought the idea of biocultural rights into sharp focus.
The four movements identified by the authors consist of:
“post-development” advocates who are articulating a vision for human society beyond the discredited neoliberal paradigm;
the commons movement that rejects the “tragedy” fable and empirically demonstrates the effectiveness of local self-governance;
the movement of indigenous peoples asserting their right to self-determination, cultural heritage and stewardship of the land; and
the push for a “third generation” of environmental human rights that go beyond basic civil and political rights (first generation) and socio-economic and cultural rights (second generation), to recognize community rights to self-determination, economic and social development, cultural heritage and a clean and healthy environment.
Over the past twenty years, there has been such a proliferation of computers, smartphones, digital devices, surveillance cameras, maps, mobile applications, sensors and much else – all of it networked through the Internet, wireless and telephone connections – that an unimaginably vast new body of personal data is being generated about us, individually and collectively.
The question is, Can we possibly control this data to serve our own desires and purposes? Or will we be modern-day techno-peasants controlled by the neo-feudal masters on the hill, Facebook, Google and Twitter and their secret and not-so-secret partners in the US Government?
Finding an effective response to this worsening situation is not going to be easy, but one brave initiative is attempting to start a new conversation about how to build a new, more socially benign data order. The Ubiquitous Commons, a project launched by Italians Salvatore Iaconesi and Oriana Persico, seeks to find new technological, legal and social protocols for managing the sheer ubiquity of networked information, and for assuring us some control over our digital identities. Their basic idea is “to promote the adoption of a new type of public space in which knowledge is a common," which they describe as "ubiquitous commons."
Iaconesi and Persico believe that vital public and personal information should not be controlled by large proprietary enterprises whose profit-driven activities are largely hidden from public view and accountability. Rather, we should be able to use our own data to make our own choices and develop “ubiquitous commons” to meet our needs.
Why should Facebook and its social networking peers be able to control the authentication of our digital identities? Why should they decide what visual and textual works shall be publicly available and archived for posterity? Why should their business models control the types of insights that can be gleaned from “their” (proprietary) Big Data based on our information -- while government, academic researchers and the general public are left in the dark?
I remember how Google crowed that its search results could make better, more timely predictions about the flu and other contagious diseases than the Centers for Disease Control. I don't see this type of unaccountable, god-like power over social information as so wonderful and benign, especially when lucrative business self-interests may selectively govern what gets disclosed and what is used for private strategic advantage.