If you’re a good ancestor of the Enlightenment, you probably believe that “nature” is something entirely separate from us. We moderns live at a sanitized distance from messy biophysical realities, after all. Lately, this casual premise of ours has been taking some serious hits, however, with the acceleration of climate change, species extinctions, collapsing coral reefs, cataclysmic weather events, and more.
In recent weeks, I've noticed a big uptick in the number of creative overtures to the realm previously known as nature (a term that implies that humanity and nature are separate). I decided to bring together some of the more imaginative gambits that I've encountered.
What underlies each example, it seems, is our aspiration to treat “nature” as a living system of diverse elements, each with its own agency and imperatives. Or as Oren Lyons, a Native American Faithkeeper of the Seneca Nation, put it years ago: “What you people call your natural resources, our people call our relatives.”
So how do we get better acquainted with our nonhuman relatives?
A New Pronoun for the Natural World
Robin Wall Kimmerer, the celebrated author of Braiding Sweetgrass, suggests we should start with the idea of using a new pronoun when referring to nature. In a recent essay in The Ecologist magazine, she urges us to avoid the use of the pronoun “it” in such circumstances:
“Objectification of the natural world reinforces the notion that our species is somehow more deserving of the gifts of the world than the other 8.7 million species with whom we share the planet. Using 'it' absolves us of moral responsibility and opens the door to exploitation. When Sugar Maple is an 'it' we give ourselves permission to pick up the saw. 'It' means it doesn't matter….
The following essay is my contribution to the recently published anthology, 'The Great Awakening: New Modes of Life amidst Capitalist Ruins' (Punctum Books), published under a Creative Commons Attribution-ShareAlike license. I co-edited this volume with my colleague Professor Anna Grear of Cardiff University. More about the book at the Punctum Books website.
The chapter asks some basic questions about the future of commons within a system of state power and law: 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 essay is about 7,000 words, so it's not a quick read, but it outlines some salient legal challenges that we face in moving commons forward. It feels like a nice companion piece to my recent podcast interview with Janelle Orsi of Sustainable Economies Law Center.
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In recent years, the power and diversity of commoning in contemporary life has increased dramatically. Commoning is both an ancient and rediscovered social form that can be seen in the stewardship of forests, fisheries, and farmland, especially in subsistence and indigenous contexts. It lies at the heart of community land trusts, local currencies, mutual aid networks, and cohousing. It is embodied in community-supported agriculture, agroecology, and permaculture, and in digital spaces that produce open source software, hardware, and design. Commoning is at work in open access scholarly journals, crowdfunding tools, and platform cooperatives, and in academia, arts and culture, and many other realms.
Because commons are strongly inclined to respect ecological limits and devise fair-minded, flexible governance through inclusive participation, they hold great promise in dealing with many societal problems. However, commoning as a legal activity faces an uncertain future. Its practices and values are philosophically alien to many aspects of the liberal market and state and their mutual focus on individualism, calculative rationality, material gain, and market growth. Commoning therefore has trouble gaining legal recognition and support. Indeed, the state is predisposed to ignore the commons, criminalize its activities, or exploit its resources in alliance with the business class.
The commons may be a pariah within the world of conventional politics because it challenges the foundational terms of ideological debate, which presumes that the market and state are ideological adversaries – the “private sector” battling the “public sector.” This is a specious binary because market and state are in fact deeply interdependent and both subscribe to the grand narrative of “social progress through economic growth.” The state looks to the market for economic growth, tax revenues, and social mobility for its citizens, while market players look to the state for a stable legal order, subsidies, state support and privileges, and the mitigation of market abuses (pollution, social disruption, inequality). State and market are so utterly symbiotic it is entirely warranted to speak about the market/state system.
From within this dominant worldview, it is almost a foregone conclusion that collective management of wealth would be seen as a “tragedy of the commons” – the over-exploitation and ruin of a resource. To the guardians of the market/state, after all, individual agency and rights are supreme. Collective action is not perceived as feasible or attractive. By definition, human beings are defined as atomistic individuals, not as co-participants in shared histories, cultures, interests, and values. When people are conceived of as “rational individuals” with boundless “incentives” to take as much as they can, it should not be surprising that heedless consumption and the reckless “externalization of costs” follows.
Now, however, this convenient fiction is starting to fall apart. Critics are increasingly calling out the claim that a commons is simply a selfish free-for-all when, in fact, this scenario more accurately describes what we might call the tragedy of the market. The commons is in fact a durable social form that orchestrates shared intentionality to steward wealth responsibly and inclusively over the long term. In a commons, people willingly negotiate rules of peer governance, resolve group conflicts, and enforce rules. They develop ways to pool and share (or divide up or mutualize) their collective wealth, without resort to a state Leviathan to maintain law, order, and personal safety.
In our legal system -- designed to protect private property, individual rights, and market exchange – it can actually be very difficult to share things legally. Attorney Janelle Orsi found this out the hard way as she worked with co-housing groups, worker cooperatives, and community gardens. “Our clients kept running up against legal barriers that make no sense: employment laws for co-ops in which people are both employer and employee. Landlord-tenant law for cohousing projects in which people are both landlords and tenants.”
Such frustrations led Orsi to co-found (with Jenny Kassan) the Sustainable Economies Law Center (SELC) in Oakland, California, in late 2009. It has since become a singlular team of venturesome lawyers attempting creative hacks on antiquated laws and regulations.Their clients are not corporations or other deep-pocket moguls, but grassroots groups, cooperatives, and social justice organizations, especially in the Bay Area.
The story of the Sustainable Economies Law Center’s amazing work is the subject of my latest Frontiers of Commoning podcast, Episode #8. Janelle explains some of the innovative legal strategies that the Law Center uses to try to help cooperatives, commons, low-income communities, and Native Americans, among others. (Full disclosure: I am on SELC’s advisory board.)
“The law treats people as atomized, bounded individuals in conflict with each other, in an attempt to keep people separate,” said Orsi. Much of the work at the Law Center is therefore about coming up with ingenious hacks on the law so that people can solve their problems together. The organization describes its theory of change this way:
“Neither our communities nor our ecosystems are well served by an economic system that incentivizes perpetual growth, wealth concentration, and the exploitation of land and people. Communities everywhere are responding to these converging economic and ecological crises with a grassroots transformation of our economy that is rapidly re-localizing production, reducing resource consumption, and rebuilding the relationships that make our communities thrive."
In a variation on my last post, on the commons in South East Europe, it seems apt to mention another regional history of the commons, in Italy. This history was written by Ugo Mattei in 2014 as a chapter in a book, Global Activism: Art and Conflict in the 21st Century, edited by Peter Weibel (and published by ZKM/Center for Art Media Karlsruhe, in Germany, and MIT Press in the US).
Mattei is the noted international law scholar, lawyer and activist who has been at the center of some of the most significant commons initiatives in Italy. His chapter is a welcome synthesis of how the commons discourse in Italy arose from the misty-eyed imagination of a few far-sighted legal commoners, to become a rally cry in critical fights against the privatization of water, the Teatro Valley theater in Rome, and other cherished shared wealth. The concept of the commons has since gone mainstream in Italian political culture, animating new initiatives and providing an indispensable vocabulary for fighting neoliberal capitalist policies.
Ugo’s piece is called “Institutionalizing the Commons: An Italian Primer.” (PDF file) In it, he describes the history of the commons in Italy as “a unique experiment in transforming indignation into new institutions of the commons,” adding, “perhaps this praxis ‘Italian style’ could become an example for a global strategy.”
For centuries, ordinary Brits have enjoyed a legal “right to ramble” throughout the countryside even when they might cross someone’s private property. In England and Wales alone, there are an estimated 140,000 miles of footpaths and bridlepaths that are considered public rights of way. Now, as reported by the website Boing Boing, the full scope of this right -- and access to a vast network of paths -- is in question.
The legal right to ramble stems from the Charter of the Forest, the 1217 social compact grudgingly ratified by King John that formally recognized commoners’ rights of access to the forest. The right was part of a larger constellation of rights won by commoners after their long struggle with the Crown over who shall have access to the forest – only the King and his lords and retainers, or ordinary people, too?
Because of the right to ramble, a sprawling network of paths evolved in Great Britain over the centuries, bringing together villages, roads, farms, and natural landmarks throughout the landscape. The pathways were once regarded as vital infrastructure for commerce, social tradition, and everyday convenience. Now the pathways are mostly seen as a beloved cultural heritage and recreational commons. Millions of people roam the pathways every year.
Like so many social limitations on private private property, however, people forget about what belongs to them – while property owners are ever-alert to the prospect of expanding their rights. Many modern-day property owners in England and Wales despise the right to ramble because it limits, however marginally, their absolute, exclusive control of the land.
Two years ago, we heard a great deal of hoopla on the 800th anniversary of the Magna Carta, celebrating it as the landmark advance for the rule of law and limits on the power of the sovereign. Far less attention was given to a companion document, the Charter of the Forest, which guaranteed the customary rights of commoners to access the forests that were so vital to their livelihoods.
These rights were secured after a long civil war against the King, who had relentlessly expanded his claims of exclusive control of the forest, punishing violators with fines, imprisonment and sometimes death. So it is fitting that we pause a moment and recall that 800 years ago, on November 6, 1217, King Henry III granted the Charter of the Forest, formally recognizing in writing the customary rights of commoners to have access to the things essential to their everyday lives.
Commoners depended on the forest for nearly everything. It provided wood for their fires and houses, pastures for sheep and cattle, and wild game for food. The forest had mushrooms, hazelnuts, berries, dandelion leaves, and countless herbs. The forests were a source of acorns and beech mast for pigs; brush with which to make brooms; and medicinal plants for all sorts of illnesses and diseases.
“More than any other kind of landscape,” wrote English naturalist Richard Mabey, “[the English forests of the 13th Century] are communal places, with generations of shared natural and human history inscribed in their structures.”
How is it that the Charter of the Forest has been nearly forgotten? Historian Peter Linebaugh explains in his wonderful book The Magna Carta Manifesto that the two charters of liberty were often publicly linked. Indeed, the very term Magna Carta was used to distinguish the Great Charter of 1215 with the "lesser" one issued two years later, the Charter of the Forest.
It wasn’t until 1297 that King Edward I directed that the two be treated as the single law of the land. In 1369, King Edward III issued a law that incorporated the two into a single statute, with the Charter of the Forest becoming chapter 7 of the Magna Carta. Over the centuries, the Charter of the Forest, seen as a minor subset of the Great Charter, receded from public memory.
A few months ago, the New Zealand Government took an amazing step – prodded by indigenous peoples – to legally recognize the rights of a river. A new law, the Te Awa Tupua Act, recognizes that the Whanganui River (known to the iwi and hapū people as Te Awa Tupua) is “an indivisible and living whole, …from the mountains to the sea, incorporating all its physical and metaphysical elements.”
The metaphysical reality that the law recognizes is one that remains quite alien to the western mind: “I am the river, and the river is me.” That's how the Iwi express their relationship to the Whanganui; the two are indivisible, an utterly organic whole. The river is not a mere “resource” to be managed.
The idea of conferring of a “legal personality” on a river and explicitly guaranteeing its “health and well-being” is a major departure for Western law, needless to say. We westerners have no legal categories for recognizing the intrinsic nature of nonhuman living systems and how we relate to them ontologically. As if to underscore this fact, the practical legal challenges of defining and enforcing the rights of the Whanganui are far from resolved, notwithstanding the creation of a new legal framework.
Still, the law is an important start. It settles the historical claims on the river made by indigenous peoples, and it makes nineteen remarkable “acknowledgements” of the Crown’s behavior over the past century. The law even recognizes the “inalienable connection” of the iwi and hapū to the river, and tenders an official apology.
Every time Uber, the Web-based taxi intermediary, enters a new city, it provokes controversy about its race-to-the-bottom business practices and bullying of regulators and politicians. The problem with Uber and other network-based intermediaries such as Lyft, Task Rabbit, Mechanical Turk and others, is that they are trying to introduce brave new market structures as a fait accompli. They have only secondary interest in acceptable pay rates, labor standards, consumer protections, civic and environmental impacts or democratic debate itself.
Rather than cede these choices to self-selected venture capitalists and profit-focused entrepreneurs, some European cities and regional governments came up with a brilliant idea: devise an upfront, before-the-fact policy framework for dealing with the disruptions of the “sharing economy.”
If we can agree in advance about what constitutes a socially respectful marketplace – and what constitutes a predatory free-riding on the commonweal – we’ll all be a lot better off. Consumers, workers and a community will have certain basic protections. Investors and executives won’t be able to complain about “unlevel playing fields” or unfair regulation. And public debate won’t be a money-fueled free-for-all, but a more thoughtful, rational deliberation.
Now, if only the European Union will listen to the Committee of the Regions (CoR)! The CoR is an official assembly of regional presidents, mayors and elected representatives from 28 EU countries. It routinely expresses its views on all sorts of major policy issues that may have local or regional impacts. In December, the CoR submitted a formal statement about the “sharing economy” to the EU in an opinion written by rapporteur Benedetta Brighenti, the deputy mayor of the municipality of Castelnuovo Rangone, in the province of Modena, Italy.
While much of the momentum to fight climate change is focused on political channels, there are parallel efforts using law to force government to take specific, enforceable actions to reduce carbon emissions. It’s a difficult battle, but in recent weeks two notable initiatives have gained further momentum – a court ruling relying on the public trust doctrine and a new human rights declaration that has broad international support.
The court ruling is related to a series of lawsuits brought by young people invoking the public trust doctrine to force governments to protect the atmosphere. Orchestrated by the advocacy organization Our Children’s Trust, the Atmospheric Trust Litigation suits have been filed in all state courts and in federal courts.
On November 19, one of those lawsuits succeeded. A superior court judge in Seattle issued a ruling that strongly recognizes the public trust doctrine as a applying to the atmosphere. The case sought to uphold science-based plans for carbon emissions reductions developed by Washington State’s Department of Ecology, as a way to protect the atmosphere for eight young people (the plaintiffs) and future generations.
The ruling is especially significant because it echoes a recent ruling by a New Mexico court that also strongly upholds the constitutional principle that the public trust doctrine applies to the atmosphere.
Until the very end, my dear friend and colleague Burns Weston was passionate, hard-driving and committed to changing the world. That’s why I was stunned to learn that Burns passed away yesterday, a few weeks shy of his 82nd birthday. When he failed to make a scheduled telephone call, friends checked his condo and found him dead. Burns was a well-known international law and international human rights scholar at the University of Iowa College of Law. He was also founder of its noted Center for Human Rights.
I met Burns about seven years ago when he was a professor for one semester a year at Vermont Law School. He was writing a major legal treatise about climate change, and one element of the essay dealt with the commons. A mutual friend, the polymath Roger G. Kennedy, introduced us, and the gravitational pull of Burns’ essay quickly drew me in. It was an irresistible disruption in my life that got me thinking a lot about environmental law and the commons.
Soon we were working together on a variety of projects: a major scholarly book, chapters in anthologies, law review articles, grant proposals. In the course of it all, Burns exposed me to a great deal of human rights and international law, and he helped clarify their potential and limits for re-imagining international governance, environmental law and the actualization of human rights. For my part, I introduced Burns to the loose but growing network of international commoners and commons literature. He quickly realized that the commons is not just complementary to human rights; the two are long-lost partners with affirmative synergies.
Our conversations became more serious and, with a bit of serendipitous funding, we embarked upon a grueling book project, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, published in 2013 by Cambridge University Press. It was a bold attempt to reimagine environmental law and policy through the lens of human rights and the commons. We wanted to envision new ways to actualize human rights principles and commons practices at global and regional levels. We wanted to think beyond the framework of the nation-state and international treaty organizations. We wanted to think beyond the standard forms and institutions of law itself.
Burns attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence. He really wanted to come up with creative legal solutions, and he wasn’t afraid if they might require social and political struggle. Now that’s not a quality you find in your average law professor, let alone one in his seventies. Burns had a bold and questing temperament, and did not let himself be confined by the disciplinary blinders of law. That’s why, following the publication of Green Governance, Burns wanted to continue our explorations. So we founded the Commons Law Project to see if we could propose an architecture of law and public policy to address climate change and other urgent ecological problems.