An important new book offering a vision of commons-based law has just arrived!  The Ecology of Law:  Toward a Legal System in Tune with Nature and Community, argues that we need to reconceptualize law itself and formally recognize commoning if we are going to address our many environmental problems.

The book is the work of two of the more venturesome minds in science and law – Fritjof Capra  and Ugo Mattei, respectively. Capra is a physicist and systems thinker who first gained international attention in 1975 with his book The Tao of Physics, which drew linkages between modern physics and Eastern mysticism. Mattei is a well-known legal theorist of the commons, international law scholar and commons activist in Italy who teaches at Hastings College of the Law in San Francisco, and at the University of Turin. He is also deputy mayor of Ch­ieri in the northern region of Italy.

The Law of Ecology is an ambitious, big-picture account of the history of law as an artifact of the scientific, mechanical worldview – a legacy that we must transcend if we are to overcome many contemporary problems, particularly ecological disaster. The book argues that modernity as a template of thought is a serious root problem in today’s world.  Among other things, it privileges the individual as supreme agent despite the harm to the collective good and ecological stability. Modernity also sees the world as governed by simplistic, observable cause-and-effect, mechanical relationships, ignoring the more subtle dimensions of life such as subjectivity, caring and meaning.

As a corrective, Capra and Mattei propose a new body of commons-based institutions recognized by law (which itself will have a different character than conventional state law).

It’s quite a treat to watch two sophisticated dissenters outline their vision of a world based on commoning and protected by a new species of “ecolaw.” Capra and Mattei start their story by sketching important parallels between natural science and jurisprudence over the course of history. Both science and law, for example, reflect shared conceptualizations of humans and nature.  We still live in the cosmological world articulated by John Locke, Francis Bacon, Rene Descartes, Hugo Grotius and Thomas Hobbes, all of whom saw the world as a rational, empirically knowable order governed by atomistic individuals and mechanical principles. This worldview continues to prevail in economics, social sciences, public policy and law.

One of the more provocative talks at the Economics and the Commons Conference last week was Andreas Weber’s critique of the “bio-economics” narrative that blends social Darwinism and free market economics.  Bioeconomics is the default worldview for contemporary economic thought, public policy and politics.  The only problem is that, by the lights of the latest biological sciences, this narrative is wrong, seriously wrong. 

Worse, it is impeding the emergence of a more accurate account of natural systems and life itself.  It is thwarting our ability to develop a new, more respectful relationship with nature.  Weber proposes instead a new story of “enlivenment” that points to a different vision of the "more than human world" and to commons-based based ways of organizing our political economy.

Andreas Weber is a Berlin-based theoretical biologist, independent scholar and ecophilosopher who explores new understandings of “life as meaning,” a sub-discipline in biological sciences known as “biosemiotics.”  This is the idea that living organisms are not just automatons who respond to various external, impersonal forces, but rather are intrinsically creative, sense-making organisms whose subjectivity and “consciousness” matter.  Indeed, our subjectivity is an indispensable part of biological evolution, Weber contends.

Weber’s essay “Enlivenment:  Towards a Fundamental Shift in the Concepts of Nature, Culture and Politics,” was just published by the Heinrich Boell Foundation.  It can be downloaded here.  (Full disclosure:  I gave Weber some editorial advice about his text.)

Weber’s complaint about conventional biology is that it refuses to study life itself.  It is too committed to Enlightenment categories of the individual, rationality and competition, and it insists upon a reductionist logic that cannot address, let alone provide answers, to what is life itself.  Weber argues that organisms are “sentient, more-than-physical creatures that have subjective experiences and produce sense.”  He notes that current biological sciences do not ask, “What do we live for?  What are our inner needs as living creatures?  What relationships do we have, or should we have, to the natural order?  How do we produce things for our immediate needs or the market?....What is life and what role do we play in it?”

A Sweet Triumph for Open Access

It’s been a long time coming, but last week the Obama administration issued a directive ordering 19 different federal agencies to develop plans for making their research available to anyone under open-access standards, after a twelve-month embargo.  The directive applies to agencies with intramural research budgets of more than $100 million, and requires them to come up with policies and OA plans within six months.  This is a significant triumph because we’re talking about tens of billions of dollars of scientific and scholarly research.

In other words, the floodgates are opening!  U.S. taxpayers – and the rest of the world – will soon be able to read and use most federally funded research for free. They will no longer have to pay exorbitant fees to commercial publishers (who were given copyright control over the research for free) -- or to belong to the knowledge elite who have the privileged ("free") access to the research via the universities with which they are affiliated. 

This is a moment to savor.  It has been twelve years since the Budapest Open Access Initiative, a 2001 declaration that urged scholars, scientists and publishers to make their research freely available online.  And it’s been seven years since the widely emulated open access journal PLoS One (Public Library of Science), was founded, in 2006.  There have been countless other skirmishes and battles in the larger movement to make research and scholarship available under OA terms.  (Here is a nice ten-year overview of the movement written by Melissa Hagemann of the Open Society Institute in 2012.)  

In patent law, they have a saying:  the name of the game is the claim.  And when it comes to patenting the naturally occurring elements of plants, the human body and other living things, patent lawyers have shown themselves to be highly ingenious in making their claims.  Their goal, of course, is to own any knowledge about nature that is needed by lots of people and can be sold.  Patent law lets companies establish artificial chokepoints over knowledge that should belong to all of us, giving the “owner” the right to charge a toll and stifle potential competition.

This trend got its start in 1980 when the U.S. Supreme Court first allowed the patenting of lifeforms in the Chakrabarty case, which allowed the patenting of microorganisms.  That in turn opened the floodgates to the patenting of genes, plants, bioengineered crops, and much else.  Harvard University famously owns the patent of a specially bred mouse for cancer experiments, the “onco-mouse.”  There is much to be said for the fruits of biotech research, but there is also much to be lamented and condemned as far as the needless privatization of knowledge and stifling of competition and innovation.

Now it seems as if the tide could be turning against the patenting of nature  The U.S. Supreme Court just ruled unanimously that a diagnostic medical test that determines levels of metabolites in a person’s blood (in order to administer the proper dosage of a class of drugs known as thiopurines) cannot be patented.  The case, Mayo Collaborative Services v. Prometheus Laboratories, arose when the Mayo Clinic in Minnesota decided to develop its own metabolite diagnostic test and stop buying the Prometheus product.  Prometheus sued, saying that the Mayo Clinic’s self-devised diagnostic test violated its patent.  The Mayo Clinic responded that no one can own basic knowledge about human physiology and nature.

Benkler's The Penguin and the Leviathan

Is the pendulum swinging to a new vision of what human beings are? For decades the standard narrative of the economics profession has been that a human being is homo economicus, a self-regarding, materialistic creature who is constantly trying to maximize his utility through rational calculation. We all know that this is a caricature, but in the “real world” of markets and politics, it seems functional enough to accept as true. After all, we all know people who are nasty, self-serving and acquisitive.

While everyone has been focused on this aging model, however, a new body of academic literature offering up a new paradigm has been building for the past twenty years or more. It hasn't quite won mainstream acceptance, at least among economists, politicians and the public. But Harvard Law Professor Yochai Benkler aspires to remedy this problem with his new book, The Penguin and the Leviathan: How Cooperation Triumphs Over Self-Interest. The book is an accessible and thorough overview of the literature of cooperation, as seen through the prism of economics, sociology, neuroscience, evolutionary biology and other disciplines.

Scores of scientific studies and countless Internet-based examples are revealing that we humans aren't as irredeemably selfish and socially retrograde as economists make us out to be. In fact, science is telling us that humans appear to be hard-wired to cooperate within consensual social structures, rather than wage an endless competition of individuals against each other. Such findings have far-reaching implications for how public policy, law, regulation, business models and many other social structures should be designed – which is precisely Benkler's point in writing the book. We need to acknowledge our human capacities to work together collaboratively and to design appropriate institutions and policy systems to leverage our innate propensities.

Benkler's previous book, The Wealth of Networks, was an illuminating but dense and lengthy treatise on how digital networks are enabling “commons-based peer production” and markets that are more socially embedded and responsive. In many respects, that book, published by Yale University Press, is quite a contrast to The Penguin and the Leviathan, an anecdote-filled book published by Crown Business and aimed at a lay readership and businesspeople.

The Power of Open Data

Science has always recognized the power of sharing in developing new knowledge. But in the search for treatments and cures for diseases like Alzheimer's and Parkinson's, the sprawling bodies of highly diverse research data are not easily shared. Either they are considered proprietary resources for making money, or they are hidden in academic databases that others may not know about, often inaccessible because of incompatible software formats. No single researcher really has the resources or incentive to develop an overarching regime to enable cooperation and sharing. And so dozens of academics, nonprofits and pharmaceutical companies have continued their research in relative isolation.

"Companies were caught in a prisoner's dilemma," a research at the University of Pennsylvania recently told the New York Times. "They all wanted to move the field forward, but no one wanted to take the risks of doing it."

Can That Data Be Shared?

One of the big problems in science is the proliferation of databases whose content is technically incompatible or legally proprietary in some fashion — and therefore unable to be used by others in their research. For years a number of smart, committed scientists, law scholars and techies have grappled with the problem of making data accessible and re-useable. Now they have released a blueprint for doing so.

The Panton Principles for Open Data in Science is a major effort to articulate a clear definition of "open data" and help scientists make the right choices in trying to make their data “open.” The principles set forth the general steps that scientists should take to create more effective and sustainable data commons.

The preamble to the Panton Principles reads:

Science is based on building on, reusing and openly criticizing the published body of scientific knowledge. For science to effectively function, and for society to reap the full benefits from scientific endeavors, it is crucial that science data be made open.

Hard-Wired to Cooperate

Do humans have a natural propensity to form commons? That is certainly one way to interpret recent findings by scientists studying the innate behaviors of babies. It turns out that very young children show a natural willingness to help other out and cooperate.

While all of us have healthy dollops of ego and selfishness, experiments have shown that children have an almost reflexive desire to help others even before parents and culture begin to shape those instincts. The cooperative impulse can be seen in children across cultures, and it is a trait that our closest evolutionary ancestor, primates, do not have. In one experiment, for example, when an adult pretends to be searching for lost objects, infants will start, 12 months old, to point at the “lost” objects.

Science Commons, the Video

Science has never been jazzier. Director Jesse Dylan -- the director of the Emmy- award winning Yes We Can Barack Obama campaign video -- has teamed up with Science Commons to produce a short video explaining why science is the ultimate remix. It’s a great primer on the special challenges facing scientists in sharing and collaborating, and it’s licensed under a Creative Commons Attribution-NonCommercial-ShareAlike license. Watch the video here.

Surprisingly enough, it is easier for the layperson to find obscure things by using Google than it is for scientists to find out more about "signal transduction genes in pyramidal neurons." Today, that search turned up 137,000 hits, a universe of undifferentiated material that is too large to be easily searched and used by most scientists. Scientific knowledge, unlike many other realms of information, exists in some very specialized structures that make it more complicated to browse and organize it.

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