This is the third of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance: Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press. The essays originally appeared on CSRWire. I am re-posting them here to introduce the paperback edition, which was recently released.
In the previous two essays in this series, we outlined our approach to Green Governance as a new model or paradigm for how we can relate to the natural environment. We also stressed how “Vernacular Law” – a kind of socially based “micro-law” that evolves through commons activity (“commoning”) – can establish legitimacy and trust in official state law, and thereby unleash new sorts of grassroots innovation in environmental stewardship.
In this essay, we explore another major dimension of the large shift we are proposing: how human rights can help propel a shift to Green Governance and thereafter help administer such governance once achieved.
Nothing is more basic to life than having sustainable access to food, clean air and water, and other resources that ecosystems provide. Surely a clean and healthy environment upon which life itself depends should be recognized as a fundamental human right.
This is the second of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance: Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013. The essays originally appeared on CSRWire.
Is it possible to solve our many environmental problems through ingenious interventions by government and markets alone? Not likely. Apart from calls for eco-minded behavior (recycle your cans, insulate your house), ordinary citizens have been more or less exiled from environmental policymaking.
The big oil, coal and nuclear power companies have easy access to the President and Congress and expert lawyers and scientists have privileged seats at the table. But opponents of, say, the Keystone Pipeline are mostly ignored unless they get arrested for protesting outside of the White House.A New Kind of Law to Underpin the Commons
That’s why we believe it’s important to talk about a “new” category of law that has little recognition among legislators and regulators, judges and lobbyists. We call it “Vernacular Law.” “Vernacular” is a term that the dissident sociologist Ivan Illich used to describe the informal, everyday spaces in people’s lives where they negotiate their own rules and devise their own norms and practices.
In our last essay, we introduced the idea of commons- and rights-based governance for natural ecosystems. We turn now to Vernacular Law because its matrix of socially negotiated values, principles and rules are what make a commons work.
Vernacular Law originates in the informal, unofficial zones of society – the cafes and barber shops, Main Street and schools, our parks and social networking websites. What emerges in these zones is a shared wisdom and a source of moral legitimacy and authority. Colonial powers frequently used their formal law to forcibly repress the use of local languages so that their controlling mother tongue could prevail.
In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law. What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding? Who has legal rights in these various contexts, and what do they look like? Who holds the legal liabilities?
These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided. But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants. Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people.
But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules?
Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy: Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing). The book covers a monumental array of legal topics that are relevant to the sharing economy. Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work. There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.
Last week, at the Edge Funders Alliance conference in Berkeley, California, I learned how participatory budgeting is starting to get some real traction here in the US. Participatory budgeting, or PB to aficionados, is a process by which ordinary people determine how to spend municipal funds. Ginny Browne of the Participatory Budgeting Project, which is based in Brooklyn, gave a terrific overview of the history and current state of this rare form of citizen engagement in government. The basic point is to let people have a direct say about the services that most affect them.
Participatory budgeting got its start in 1969 in Porto Alegre, Brazil, a city of 1.5 million residents. Launched as an effort to bypass political corruption, PB is now used in that city to allocate 20 percent of the budget, or $200 million. The process engages some 50,000 citizens in Porto Alegre, and has resulted in a doubling of sanitation services and more school buses for underserved areas. (For more on PB in Porto Alegre, see the excellent book chapter by Hilary Wainwright in her 2009 book Reclaim the State.)
Participatory budgeting first came to the US in 2009 when a Chicago city councilman attending the U.S. Social Forum decided to try it out in that city’s 29th ward. In 2011 four New York City council members introduced PB in their districts. About 1.5 million people participated in deciding how to spend $14 million for infrastructure projects.
A year later, the city of Vallejo, California, introduced PB for $3.2 million in city programs and services. The idea had real appeal because the city had just gone through bankruptcy proceedings and citizen trust in government was low. A twenty-person steering committee for PB was created. After brainstorming ideas and developing project proposals, 4,000 citizens chose which of twelve different projects to fund.
The past thirty years have seen a massive patent grab to control agricultural seeds and the crops that are grown, not just in the US but around the world. In the name of progress and greater yields, seed companies introduced proprietary GMO and hybrid seeds, slowly squeezing out seeds that are more common and shareable. This is exactly what Microsoft did in software, using Windows to marginalize competing software systems, and this is what bottling companies have done to water, trying to supplant tap water with heavily marketed branded water.
Some folks at the University of Wisconsin have launched a new effort to fight this trend in the seed market through what they call the Open Source Seed Initiative. The project last week released 29 new varieties of broccoli, celery, kale, quinoa and other vegetables and grains, all of them licensed under the equivalent of software’s General Public License (GPL), which is what has allowed GNU/Linux to remain in the commons.
The license, known as the Open Source Seed Pledge, lets anyone use the open source seeds for whatever purpose they want – provided that any subsequent seeds produced are also made available on the same basis. The idea is to bypass the built-in bias of proprietary control in the patent system, and assure that the new seeds will be available for anyone to grow, breed and share in perpetuity, without the fear of someone imposing intellectual property restrictions on later uses of the seeds.
The University of Wisconsin-Madison news office quoted horticulture professor and plant breeder Irwin Goldman, one of the authors of the pledge, as saying: “These vegetables are part of our common cultural heritage, and our goal is to make sure these seeds remain in the public domain for people to use in the future.” Last week Goldman released two carrot varieties he developed, named Sovereign and Oranje, at a public ceremony outside of the university’s microbial sciences building.
For people who care about socially engaged, commons-minded tech innovation, there are few institutions in the world as bold and courageous as Medialab Prado, in Madrid. For the past ten years it has been a technology lab, an interdisciplinary forum, a space that welcomes public participation, a hub for citizen activism, and a host of provocative workshops and conferences. And yes, the Medialab Prado has also been deeply engaged with the commons paradigm as an important way of shaping a better, more socially constructive future.
Now, after a decade of fantastic work as a pioneering social/technological laboratory, the Madrid city council is threatening to let a giant telecom corporation, Telefónica, take over its new building. The municipal government – apparently clueless about the international stature and significance of Medialab – is in talks to let Telefónica use the brand new building that MLP moved into less than a year ago. Telefónica wants to open its own startup incubator there. The move would cast Medialab into limbo, without any assurance of appropriate space in a suitable location or adequate funds.
Many of us who participate in the international tech, P2P, commons or activist worlds are appalled at this recent turn of events. Doesn’t the Madrid political establishment recognize the immense value that Medialab Prado has for the city and Spain (and the rest of the world)?
Doesn’t it realize that Medialab is a magnet for the most exciting thinkers, technologists and social activists – a place that elevates Madrid’s reputation and Spain’s leadership in cultural and tech circles? After citizen uprisings in so many countries around the world, does the Madrid political establishment not appreciate the need to explore new models of social outreach and public engagement, as Medilab Prado does?
Currently, less than 3% of the food that Americans eat is grown within 100 to 200 miles of where they live. And many people in poorer neighborhoods simply do not have ready access to affordable local produce.
A fascinating new project, the Food Commons, aspires to radically change this reality. It seeks to reinvent the entire “value-chain” of food production and distribution through a series of regional experiments to invent local food economies as commons.
By owning many elements of a local food system infrastructure – farms, distribution, retail and more – but operating them as a trust governed by stakeholders, the Food Commons believes it can be economically practical to build a new type of food system that is labor-friendly, ecologically responsible, hospitable to a variety of small enterprises, and able to grow high-quality food for local consumption.
Food Commons explains its orientation to the world by quoting economist Herman Daly:
“If economics is reconceived in the service of community, it will begin with a concern for agriculture and specifically for the production of food. This is because a healthy community will be a relatively self-sufficient one. A community’s complete dependency on outsiders for its mere survival weakens it….The most fundamental requirement for survival is food. Hence, how and where food is grown is foundational to an economics for community.”
Food Commons is a nonprofit project that was officially begun in 2010 by Larry Yee and James Cochran. Yee is a former academic with the University of California Cooperative Extension who has been involved in sustainable agriculture for years. Cochran is the founder and president of Swanton Berry Farms, a mid-scale organic farming enterprise near Santa Cruz, California.
Michel Bauwens, Founder of the P2P Foundation, has recorded four short videos describing the FLOK Society’s pioneering research project in Ecuador. FLOK stands for “Free, Libre, Open Knowledge,” and the FLOK Society is a government-sponsored project to imagine how Ecuador might make a strategic transition to a workable post-capitalist knowledge economy. As Research Director of the project, Michel and his team are exploring the practical challenges of making commons-based peer production a widespread, feasible reality as a matter of national policy and law.
The four videos – each four to six minutes in length – are a model of succinct clarity. Here is a short summary of each one, which I hope will entice you to watch all of them (links are in the titles below):
Bauwens explains the significant of the FLOK Society project as “the first time in the history of mankind that a nation-state has asked for a transition proposal to a P2P economy.” He asks us to “imagine that for every human activity, there is a commons of knowledge that every citizen, business and public official can use.” This regime of open, shareable knowledge would move away from the idea of privatized knowledge accessible only to those with the money to pay for copyrighted and patented knowledge. The system could be adapted for education, science, medical research and civic life, among other areas.
The FLOK Society project is actively looking for what it calls the “feeding mechanisms” to enable and empower commons-based peer production. For open education, for example, open textbooks and open educational resources would help people enter into this alternative regime. However, there are both material and immaterial conditions that must be addressed as well.
One material condition is proprietary hardware, for example. If open systems could replace the existing lock-down of proprietary systems, all users could spend one-eighth of what they are currently paying, on average. Moreover, eight times more students could participate in creating and sharing, said Bauwens, which itself would yield enormous gains. As for "immaterial conditions" that need to change, innovations like “open certification” are needed to recognize the skills of those who learn outside of traditional institutions, as in hacker communities.
Several years ago some software programmers in Berlin came up with a new software platform to let diverse groups of people self-organize themselves to make democratic decisions online. The program, LiquidFeedback, gives everyone a chance to participate without the need for physical assemblies or in-person voting.
The program was first used by the German Pirate Party, but it has been also been used by citizen associations, cooperatives and even corporations to elicit the collective sentiment of groups of people, including for binding votes. The idea behind the program is to avoid the classic problems of representative democracy and hierarchies. As we all know, elected leaders are often happy to ignore or misrepresent the will of the people if it helps them stay in power. LiquidFeedback was intended as something of an antidote.
Now, the programmers behind LiquidFeedback, the Public Software Group of Berlin, have published a book, The Principles of LiquidFeedback, describing the philosophical, political and operational details of the software system. The authors – Jan Behrens, Axel Kistner, Andreas Nitsche and Bjorn Swierczek – bill their book as “a must-read for anybody planning to make online decisions or to build online decision platforms and is also interesting for anybody interested in the future of democracy in the digital age.”
At a time when elections, legislatures and other democratic processes do a poor job at representing the will of the people, LiquidFeedback is a welcome experiment in demonstrating a better way. It is not seen as a substitute for representative democracy, but more as a complement to it. I blogged about the program in 2012 and concluded that it “clearly shows the potential for re-imagining more open, legitimate and responsive forms of governance.”
LiquidFeedback empowers any accredited member of a group to propose a new initiative; make suggestions about it; create alternatives to the proposed initiative; and vote on a final proposal. Discussion generally takes place on other platforms, however, outside of LiquidFeedback. But the authors warn that "in the real world it is not possible to implement a secret electronic voting system whose functionality can be verified by the voters." Liquid Feedback uses open ballots.