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 different theory 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.