The world of law is not especially welcoming of the idea of the commons. There are too many blurry lines and idiosyncratic contingencies. Lawyers like bright-line rules and cause-and-effect scenarios. The varieties of commons are also unsettling to legal minds, it seems, because commons can be difficult to systematize and square with western law and its focus on individuals.
Lawyers also prefer to see law as a partner with neoliberal capitalism and its mythopoetic narratives about human progress through technology, consumerism and economic growth. These attitudes are especially problematic when it comes to environmental law, which has not been terribly effective over the past fifty years in restraining the appetites of capital-driven markets and corporate property owners.
To be sure, property law scholars spend some time dealing with the commons as an alternative to the standard narratives. But here, too, the “tragedy” parable tends to prevail and the commons is usually treated as a curiosity of medieval history and rural, “under-developed” countries. It is not seen as a hardy, versatile contemporary paradigm that might actually address some deep pathologies of the "free market." For example, the commons helps us talk about the compulsive externalizing of costs, the ethics of monetizing all value, the growth imperatives of the economy today, the legal prejudices against collective stewardship and long-term commitments, and our cultural alienation from nature and each other, among other issues.
Generations of such thinking will not be easily overcome, I realize, but I am nonetheless pleased to announce a brave attempt to carve out a richer space for the commons in legal education. A new law textbook, International Environmental Law and World Order: A Problem-Oriented Coursebook, just published in the Third Edition by West Publishing, includes a chapter by me, “The Future of International Environmental Law: A Law of the Ecological Commons?”
The textbook was edited by Professors Jonathan C. Carlson and Burns M. Weston (University of Iowa College of Law) and Sir Geoffrey W. R. Palmer (former Minister of the Environment and Prime Minister, New Zealand). As the copyright holder of my chapter, I am releasing the text under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. I am attaching it at this link – and in the “Resources” section above – in the hope that law students and others will find some useful readings, analysis and discussion questions about the commons. (Warning: it’s an 84-page pdf file.)
Let me also convey my heartfelt thanks to my colleague Professor Burns Weston for inviting me to write the chapter and for his incisive editing of my text. (We are currently working on a book manuscript dealing with "commons law.")
I introduce "A Law of the Ecological Commons?" by noting:
[The commons] has a long and venerable history in law and social tradition, and is closely tied to the evolution of human rights. It stretches back to the Magna Carta, the Romans, and even earlier, and has been a perdurable institution for managing land, water, wildlife, and other elements of nature. Arguably the commons is as old as homo sapiens itself.
In modern times, the commons has become a default paradigm of social production and governance on the Internet; it provides an intellectual critique of free market fundamentalism; and it is a platform for re-imagining the governance, economics, and cultural stewardship of shared resources of many types, including nature. The commons is, however, less an ideology than intellectual scaffolding used to develop innovative legal and policy norms, institutions, and procedures by which “commoners” (sometimes the general public, other times a distinct community) can manage a given set of ecological resources sustainably. A commons constitutes a kind of social and moral economy. It is a matrix of perception—a worldview—that can loosely unify diverse fields of action now largely isolated from one another…..
Modern-day economics as a discipline valorizes growth, technological innovation, and consumerism as preeminent goals, and posits a world of rational individuals intent on maximizing their material self-interests. Most of these premises are taken for granted as appropriate and receive little empirical scrutiny or theoretical challenge. This attitude is gradually changing, however, chiefly because the October 2008 economic crisis provoked a great deal of soul-searching within the field. Also, alternative economic approaches—from behavioral economics, complexity theory economics, ecological economics, and “post-scarcity economics,” among others—are starting to win new converts.
Studying the commons means transcending the limitations of conventional economics by taking into account the larger social, human, and ecological context of economic activity. The actual costs and benefits of economic activity are scrutinized and seen holistically; a community’s values, norms, and social practices as embodied in a particular local, national, or international context are evaluated; economic exchange, not less than commoning itself, is understood to implicate a complex set of social variables. Thus, the theater of relevant inquiry extends well beyond the economic factors of those things that a for-profit business enterprise regards as germane. To study commons is to go beyond strict economics; it implicates anthropology, environmental science, political science, and social psychology, as well as culture, the empirical study of specific stewardship practices, and the law.
The first section of the chapter looks at the conceptual and historical background of the commons, as seen through readings by Garret Hardin and commons scholars such as Elinor Ostrom and Lewis Hyde.
The next section introduces new notions of stewardship over the long term, often in contrast to regimes of private property rights and exclusive individual ownership for market gain. This accounts for the many deep tensions between private property law and the commons.
A third section surveys a number of contemporary ecological commons and proposals for new commons such as acequias (community-operated waterways) that enable Native Americans to steward scarce water supplies in New Mexico; the Potato Park in Peru that empowers indigenous people to assert stewardship rights over a genetically valuable potatoes; community fishing regimes for endangered fisheries; and “stakeholder trusts” and “social charters” as a new paradigms of governance of ecological resources. The point is that we need new sorts of institutional innovation to manage the atmosphere, oceans and fresh water more responsibly.
Finally, a fourth section considers the future of the commons and ecological governance that nation-states should strive to support. Among the concluding thoughts:
Our challenge is to imagine the different policy structures and protocols at all levels of governance that can affirmatively support the formation and flourishing of commons. How can they be allowed to unleash their constructive energies, innovation, and attention to ecological limits while assuring minimal performance standards and accountability to the larger (hopefully democratic) polity? What are the means by which governing institutions can foster, for example, local commons for, say, agriculture (such as community supported agriculture, or CSAs), water resources, or forests? How can they begin to legally recognize the value of commons-based governance?
For a democratic polity on the national or subnational plane, and especially one based on individual rights and entitlements, recognizing indivisible collective interests through law poses serious challenges. The tradition is under-developed and there is political resistance to such approaches. Yet there are also many existing legal precedents and practical models that can be studied and emulated. They include community land trusts, cooperatives, national parks, municipal utilities, land grant colleges, and the Alaska Permanent Fund, which distributes a portion of royalties from oil drilled on state lands to all Alaskan households.
I like a concluding quotation by the German cleric Dietrich Bonhoeffer that my colleague Burns Weston suggested: “Action springs not from knowledge but from a readiness for responsibility.” I wish only that the former will stimulate the latter.