The relationship between law and the commons is very much on my mind these days.  I recently posted a four-part serialization of my strategy memo, "Reinventing Law for the Commons."  The following public talk, which I gave at the Heinrich Boell Foundation in Berlin on September 8, is a kind of companion piece.  The theme: this year's celebration of the 800th anniversary of Magna Carta and its significance for commoners today.

A video version of my talk can be seen here -- along with a talk on P2P developments by my colleague Michel Bauwens, and general discussion with the audience moderated by Silke Helfrich.

Thank you for inviting me to speak tonight about the 800th anniversary of the Magna Carta and the significance of law for the commons.  It’s pretty amazing that anyone is still celebrating something that happened eight centuries ago!   Besides our memory of this event, I think it is so interesting what we have chosen to remember about this history, and what we have forgotten.

This anniversary is essentially about the signing of peace treaty on the fields of Runnymede, England, in 1215.  The treaty settled a bloody civil war between the much-despised King John and his rebellious barons eight centuries ago.  What was intended as an armistice was soon regarded as a larger canonical statement about the proper structure of governance.  Amidst a lot of archaic language about medieval ways of life, Magna Carta is now seen as a landmark statement about the limited powers of the sovereign, and the rights and liberties of ordinary people.

The King’s acceptance of Magna Carta after a long civil war seems unbelievably distant and almost forgettable.  How could it have anything to do with us moderns?  I think its durability and resonance have to do with our wariness about concentrated power, especially of the sovereign.  We like to remind ourselves that the authority of the sovereign is restrained by the rule of law, and that this represents a new and civilizing moment in human history.  We love to identify with the underdog and declare that even kings must respect something transcendent and universal called “law,” which is said to protect individual rights and liberties. 

In this spirit, the American Bar Association celebrated Magna Carta in 1957 by erecting a granite memorial at Runnymede bearing the words “Freedom Under Law.”  On grand public occasions – especially this year – judges, politicians, law scholars and distinguished gray eminences like to congregate and declare how constitutional government and representative democracy are continuing to uphold the principles of Magna Carta.  More about that in a minute.

Today's post is the third in a four-part series derived from my strategy memo, "Reinventing Law for the Commons."  This excerpt continues with Part II, "Legal Innovations in Beating the Bounds," with "clusters" #5 through #9. The collection of entries here are now posted on a Commons for the Law wiki hosted by the Commons Transition website.

5.  Co-operative Law

There are a number of legal and organizational innovations transforming co-operatives these days, making them moreoriented to commoning and the common good than just marketplace success. However, these innovations are geographically dispersed and not necessarily widely known, even within the co-operative movement.  One of the most notable new organizational forms is the multistakeholder co-operative (or “social and solidarity cooperative”), which has been rapidly proliferating in recent years.  It got its start in Italy in 1963 when families in Italy joined forces with paid care workers to develop co-operatives to provide social care, healthcare and educational services. This new paradigm collectivizes and centralizes basic overhead services (administration, personnel, accounting, etc.) and in this way empowers smaller social economy ventures (similar to “omni-commons,” see section #8 below). 

In a sense, multistakeholder co-ops regularize governance for co-stewardship of commons spaces and moves away from rigid bureaucratic methods that increasingly don’t work.[1]  Multistakeholder co-ops now employ more than 360,000 in paid jobs, including the disabled, the formerly imprisoned and marginalized people, and more than 40,000 volunteers.  Social co-operatives have spread to all regions of Italy and today number more than 14,000, making it a significant sector of the Italian economy that is neither market- nor state-based.  Today there are multi-stakeholder co-operative movements in Quebec in Canada and in a wide number of countries in Europe including France, Spain, Poland, Hungary, Finland and Greece[2].

Below, a continuation of yesterday's post from the strategy memo, "Reinventing Law for the Commons," Part II of the four-part piece.

II.  Legal Innovations in Beating the Bounds:  Nine Promising Fields of Action 

Part II surveys the enormous amount of legal innovation going on in various commons-related fields of action.  The point of this section is to identify specific initiatives that are trying to transform the legal paradigm or carve out new “protected zones” of enforceable rights within existing legal frameworks.  I have identified nine major “clusters” of interesting experimentation and ferment:

1.  Indigenous Commons   

2.  Subsistence Commons in the Global South       

3.  Digital Commons       

4.  Stakeholder Trusts

5.  Co-operative Law 

6.  Urban Commons  

7.  Localism            

8.  New Organizational Forms     

9.  Re-imagining State Policy to Empower Commons   

Today's post focuses on the first four "clusters"; tomorrow's deals with #5 through #9.  And the final day will deal with Part III:  The Strategic Value of Developing Law for the Commons, and Part IV:  Next Steps.

The list of clusters and examples in Part II is not comprehensive.  It is merely a first attempt to assemble the fragments of commons-based legal innovation into a new mosaic that makes key, unifying themes more visible.  (I invite readers of this memo to inform me of any worthy additions by contacting me at david/at/  Some examples may belong in two or more clusters, which I’ve tried to indicate with cross-references.  In Part III, I will reflect on the political and philosophical implications of the examples of Part II, followed by a discussion in Part IV of practical steps that might be taken to consolidate and extend Law for the Commons as a coherent body of legal activism.

One of the great economists of the twentieth century had the misfortune of publishing his magnum opus, The Great Transformation, in 1944, months before the inauguration of a new era of postwar economic growth and consumer culture. Few people in the 1940s or 1950s wanted to hear piercing criticisms of “free markets,” let alone consider the devastating impacts that markets tend to have on social solidarity and the foundational institutions of civil society. And so for decades Polanyi remained something of a curiosity, not least because he was an unconventional academic with a keen interest in the historical and anthropological dimensions of economics. 

As the neoliberal revolution instigated by Reagan and Thatcher in the 1980 has spread, however, Polanyi has been rediscovered.  His great book – now republished with a foreword by Joseph Stiglitz – has attracted a new generation of readers. 

But how to make sense of Polanyi’s work with all that has happened in the past 70 years?  Why does he still speak so eloquently to our contemporary problems? For answers, we can be grateful that we have The Power of Market Fundamentalism:  Karl Polanyi’s Critique, written by Fred Block and Margaret R. Somers, and published last year. The book is a first-rate reinterpretation of Polanyi’s work, giving it a rich context and commentary.  Polanyi focused on the deep fallacies of economistic thinking and its failures to understand society and people as they really are. What could be more timely?

The cult of free market fundamentalism has become so normative in our times, and economics as a discipline so hidebound and insular, that reading Polanyi today is akin to walking into a stiff gust of fresh air.  We can suddenly see clear, sweeping vistas of social reality.  Instead of the mandarin, quantitative and faux-scientific presumptions of standard economics – an orthodoxy of complex illusions about “autonomous” markets – Polanyi explains how markets are in fact embedded in a complex web of social, cultural and historical realities.

When the state no longer enforces its own legal standards on human rights or ecological protection, often in deference to corporate partners, the logical response is to establish a commons-based alternative – a people’s tribunal. That’s what is now planned in the case of fracking and its implications for human rights.

The Permanent Peoples’ Tribunal (PPT) has scheduled a session in March 2017 to “consider whether sufficient evidence exists to indict certain named States on charges of failing adequately to respect the human rights of citizens as a result of permitting, and failing to adopt a precautionary approach to, hydraulic fracturing and other techniques of unconventional oil and gas extraction within their jurisdictions.”  The Tribunal is an internationally recognized public opinion tribunal functioning independently of state authorities and operating out of Rome. The Tribunal will hold a week of hearings in both the US and UK.

Governments take great pains to prevent their most sacrosanct policies from being questioned in courts of law.  Consider how the US Government short-circuited any significant court rulings about the NSA’s extensive secret surveillance of citizens, in violation of the Fifth Amendment.  It took Edward Snowden's revelations to force judicial review. 

We’ve been here before, of course. The lawless Vietnam War was a prime example. As a corrective to the state crimes committed in that instance, philosopher Bertrand Russell and Jean Paul Sartre organized the Vietnam War Crimes Tribunal in 1967 to hear evidence about violations of the citizen’s basic human rights. In that tradition, today’s PPT will assess the human rights implications of fracking.

The European Parliament is formally focusing on the commons paradigm through a new “Intergroup on common goods,” which is part of a larger group known as the "European Parliamentary Intergroup on Common Goods and Public Services."  The group met for the first time on May 26 in Brussels, at the European Parliament.  At this early stage, it’s hard to tell if it will be influential either within the European Parliament or with the public, but it certainly represents a significant new threshold for commons activism. 

Intergroups are official forums of the Parliament at which members, political organizations and movements can air their views and try to rally attention to a given topic. As Sophie Bloemen of the Commons Network writes:

Even though the intergroups have no legislative power, they can be valuable having such a representation in the European Parliament. At the minimum, it is a multiparty forum where one can exchange views and propose ideas on particular subjects in an informal way. Those who choose to work with such an intergroup, its Members of Parliament, and civil society or lobbyists, share the notion that a certain topic is important and can focus on how to get things done.

Now there will also be a Commons Intergroup. This particular group will allow for discussions on policy from a shared perspective: the idea that “the commons” – is an important and helpful way of framing the important themes of present times. As there can only be so many Intergroups, inevitably the group is the result of a political compromise. It has been formed by Members of the European Parliament from the Greens, the left group GUE, the large Social Democrat party (S&D) and the group EFDD which now includes Beppe Grillo with his Cinque Stelle party. The movement on water as a commons has been instrumental for the mobilization of the intergroup. 

For political reasons, the Commons Intergroup is one of two subgroups of the European Parliamentary intergroup on Common Goods and Public Services. MEP Marisa Matias from GUE is the president of the Commons Intergroup.

Property Rights, Inequality and Commons

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.  

The Rise of Biocultural Rights

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.

(I am back from some time at the beach, ready to resume my reporting about the latest commons developments, of which there are many.  More to come!)

Dutch legal scholar Femke Wijdekop of the Institute for Environmental Security has tackled an urgent question for anyone concerned with planetary environment.  She writes: 

How can we construct a right to a healthy and clean environment that is enforceable in today’s complex international legal order? What legal construct would be visionary and ambitious enough to meet the urgent need for environmental justice and protection and at the same time be enforceable in court rather than fall into the category of ‘soft law’?

Wijdekop answers these questions in an essay, “A Human Right to Commons- and Rights-based Ecological Governance:  the key to a healthy and clean environment?” The legal analysis was published by the Earth Law Alliance, a group of lawyers organized by British lawyer Lisa Mead who advocate an eco-centric approach to law. 

Wijdekop’s piece draws upon some of the ideas in my book with Burns Weston, Green Governance in arguing for “procedural environmental rights to establish, maintain, participate in, be informed about and seek redress for ecological commons.”  She has presented these ideas to international lawyers and constitutional scholars in The Hague, and is now reaching out to environmentally minded lawyers.

This is the last in 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 Commonspublished 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 our preceding essays in this series, we introduced the idea of Green Governance, a new approach to environmental protection based on a broad synthesis of economics and human rights and, critically, the commons. We also described the burgeoning global commons movement, which is demonstrating a wide range of innovative, effective models of Green Governance.

In our final post, we'd like to focus on how a vision of Green Governance could be embodied into law. If a new paradigm shift to Green Governance is going to become a reality, state law and policy must formally recognize the countless commons that now exist and the new ones that must be created.

Recognizing the Commons as a Legal Entity

Yet here’s the rub: Because the “law of the commons” is a qualitatively different type Green Governanceof law – one that recognizes social and ecological relationships and the value of nature beyond the marketplace – it is difficult to rely upon the conventional forms of state, national and international law. After all, conventional law generally privileges individual over group rights, as well as commercial activities and economic growth above all else.

Establishing formal recognition for commons- and rights-based law is therefore a complicated proposition. We must consider, for example, how self-organized communities of commoners can be validated as authoritative forms of resource managers. How can they maintain themselves, and what sort of juridical relationship can they have with conventional law? One must ask, too, which existing bodies of law can be modified and enlarged to facilitate the workings of actual commons.

 Threee Domains of Commons Law

Clearly there must be a suitable architecture of law and public policy to support and guide the growth of commons and a new Commons Sector. In our book Green Governance, we propose innovations in law and policy in three distinct domains:

  • General internal governance principles and policies that can guide the development and management of commons;
  • Macro-principles and policies that facilitate the formation and maintenance of “peer governance;”
  • Catalytic legal strategies to validate, protect, and support ecological commons.
Syndicate content