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.

For the Uncommons conference in Berlin on October 23, Michel Bauwens recently distilled his years of thinking about digital collaboration into a short text, “Ten Commandments of Peer Production and Commons Economics.”  The document describes the key pillars of “a mode of production and value creation that is free, fair and sustainable.”  I am reproducing his entire text here because I think it is so succinct and seminal.

As we have tried to show elsewhere, the emergence of Commons-Oriented Peer Production has generated the emergence of a new logic of collaboration between open productive communities who created shared resources (commons) through contributions, and those market-oriented entities that created added value on top or along these shared commons.

This article addresses the emerging practices that should inspire these entities of the 'ethical' economy. The main aim is to create new forms that go beyond the traditional corporate form and its extractive profit-maximizing practices of value extraction. Instead of extractive forms of capital, we need generative forms, that co-create value with and for the commoners.

I am using the form of commandments to explain the new practices. All of them have already emerged in various forms, but need to be generalized and integrated.

What the world and humanity, and all those beings that are affected by our activities require is a mode of production, and relations of production, that are “free, fair and sustainable” at the same time.

OPEN AND FREE

1. Thou shall practice Open Business Models based on shared knowledge

Closed business models are based on artificial scarcity. Though knowledge is a non- or anti-rival good that gains in use value the more it is shared, and though it can be shared easily and at very low marginal cost when it is in digital form, many extractive firms still use artificial scarcity to extract rents from the creation or use of digitized knowledge. Through legal repression or technological sabotage, naturally shareable goods are made artificially scarce, so that extra profits can be generated. This is particularly galling in the context of life-saving or planet-regenerating technological knowledge. The first commandment is therefore the ethical commandment of sharing what can be shared, and only creating market value from resources that are scarce and create added value on top or along these commons. Open business models are market strategies that are based on the recognition of natural abundance and the refusal to generate income and profits by making them artificially scarce.

Thou shall find more information on this here at http://p2pfoundation.net/Category:Business_Models

FAIR

2. Thou shall practice Open Cooperativism

Many new more ethical and generative forms are being created, that have a higher level of harmony with the contributory commons. The key here is to choose post-corporate forms that are able to generate livelihoods for the contributing commoners.

Open cooperatives in particular would be cooperatives that share the following characteristics:

1) they are mission-oriented and have a social goal that is related to the creation of shared resources

2) they are multi-stakeholder governed, and include all those that are affected by or contributing to the particular activity

Patterns of Commoning is Now Published!

After two years of working with more than 50 contributors, Silke Helfrich and I are pleased to announce that Patterns of Commoning is now available in both English and German editions.  The books have just arrived back from the printer and are available from our distributor Off the Common Books and Amazon (US). You can learn more about the anthology at its website.

Patterns of Commoning is arguably the most accessible and broad-ranging survey of contemporary commons in print. It introduces readers to more than fifty notable commons from around the world and explores the inner dynamics of commoning with great sensitivity.

A primary goal of Patterns of Commoning is to show the great scope and vitality of commons initiatives around the world. There are chapters on alternative currencies and open source farm equipment, community forests and co-learning commons, theater commons and collaborative mapping, urban commons and dozens of others. Margaret Thatcher once championed neoliberal capitalism with the harsh ultimatum, “There IS no alternative!”  Patterns of Commoning shows in vivid detail that there are plenty of alternatives!

As editors, Silke and I are grateful that dozens of international activists, academics and project leaders agreed to share their deep knowledge about commoning learned from their particular commons. A special set of longer essays in the book probe the personal, social and spiritual dimensions of commoning among specific groups, such as Scottish fishermen, the Maori in New Zealand, and the shantydwellers movement in South Africa. Other essays explore the new political rationality of commoning through the lens of property rights in African farmland. Other pieces explore the metaphysics of the commons and the commons as a "pluriverse" of relational worldviews.  (Contents page here.

Patterns of Commoning is a companion volume to The Wealth of Commons anthology published in 2012 (the German version, Commons:  Für eine neue Politik jenseits von Markt und Staat).  Once again, we are grateful to the Heinrich Böll Foundation for its unwavering support, especially from Barbara Unmüssig, President of the Böll Foundation, and Heike Löschmann, the head of the Department of International Politics. 

We’re hoping the book will open up some new conversations and provoke greater media coverage of commoning. If you have any good ideas for promoting the book among Web communities, academics, activists, the press or ordinary citizens eager to learn about fresh alternatives, please let me know. I also invite you to use Facebook and Twitter to spread the word.  We’re recommending use of the hashtags #patternsofcommoning, #commoning or #4thecommons.

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.

The coming together of commons-oriented projects seems to be intensifying.  Even as the Le Temps des Communes festival in dozens of Francophone cities convenes thousands of commoners, an organizing meeting for a Chicago Chamber of Commons in planned for Saturday, October 10. (You can register for the event here.)

This idea has been kicking around for a while – see this 2013 blog post  – but it seems that the folks in Chicago are serious about making it work. They want to foster deeper collaboration among the many groups focused on shared ownership, the collaborative economy, co-operatives and other mutual-benefit initiatives. The organizers say they want to “connect social entrepreneurs, L3C's, B-Corps and other enterprises focused on triple bottom line, sharing-economy approaches to commerce and community development.” People involved with economic transformation, environmental protection, community life and culture are also invited.

The day will start with a consensus workshop that will try to come up with a shared definition of the commons. This will be followed with discussions for startup plans for a Chicago Commons, which organizers hope will be the first of many Chambers of Commons across the nation and globe.

In May, Huffington Post writer Sally Duros wrote a piece about the envisioned Chamber of Commerce in which she quoted Michel Bauwens, founder of the P2P Foundation: 

"The old way is this. Here's a problem. We need resources to solve that problem. We create a hierarchy to direct resources at the problem," Bauwens says.

"Here's another way. There are enough people in the world with time, skills and energy who would be willing to work to solve that problem. The new solution is to create a commons and a platform that allows people to self-aggregate and collaborate to solve that problem."

Here's hoping that the organizing meeting is productive!

At the upcoming COP Summit in Paris (the UN Framework Convention on Climate Change), no one expects the world’s governments to make serious headway against global climate change. Neoliberal-obsessed governments are more concerned with propping up collapsing capitalist structures than in reducing carbon emissions (which have doubled over the past generation).  Corporations are more intent on preserving their market share and investors in preserving their net worth than in entertaining an environmentally benign economic paradigm shift.  We can be sure, following COP21, however, that world leaders will declare the event a success and let loose their own copious emissions of PR blather.

Let’s face it – we’re more or less on our own.  The impetus for change has to come from the bottom and the local. 

Which brings me to the inspirational work of POC21 – Proof of Concept 21 – which stands for “a proof of concept that the future we need can be built with our own hands.” For five weeks – August 15 to September 20 – more than 100 makers, designers, engineers, scientists and geeks converged on Château de Millemont, an ancient castle near Paris.  Their mission:  to work together in developing prototype machines that could radically reduce our dependence on carbon fuels.

The idea of POC21 is to invent inexpensive, modular household devices, farm tools, energy systems and other appropriate technologies that can be replicated cheaply, repaired easily and copied and shared by anyone. “Imagine a new breed of open source products available in your neighborhood,” POC organizers have announced. “This is our vision.”

Le Temps des Communes, surely the largest festival of the commons ever, is about to get underway! The festival is not just a single event in a single place, but a series of more than 250 self-organized events to be held over the course of fifteen days in France, Belgium, Switzerland, Canada (Quebec) and several Francophone countries in west Africa. 

From October 5 to 18, there will be symposia, workshops, lectures and participatory events on all sorts of commons-related topics.  There will be events to showcase free and open source software, community gardens, participatory mapping projects, seed-sharing, open scientific knowledge, renewable energy co-operatives, land trusts and even a Creative Commons-licensed musical. The hundreds of festival events will help introduce the commons to the general public and demonstrate to current commoners just how large, diverse and exciting the world of collaborative provisioning truly is.

In Lyon, there will be a roundtable about making the city a commons.  In Brussels, there will be an Open Source Festival.  In Brest, a bike tour of shared gardens.  In Paris, nearly thirty different events are planned.

I wish that I could attend the “law and the commons” discussion that will feature Stefano Rodotà, the Italian law scholar, politician and human rights advocate who has pioneered new legal principles for the commons.  Paris will also host “A Day in the Commons” on Île-de-France, with workshop, a meal and planning for the future.

There is one notable aspect to the Volkswagen emission-cheating scandal that few commentators have mentioned:  It would not have happened if the software for the pollution-control equipment had been open source. 

Volkswagen knew it could defraud consumers and deceive regulators precisely because its software was closed, proprietary and legally protected from outside scrutiny. Hardly anyone could readily check to see if the software was performing as claimed.    

Sure, dogged investigators could laboriously compare actual car emissions to emissions in artificial regulatory tests. That’s essentially what broke open the Volkswagen scandal. But that is an expensive and problematic way to identify cheaters. 

The larger question is why should a piece of software that has enormous public health and environmental implications be utterly impenetrable in the first place?  A locked box invites lawless, unaccountable and sloppy corporate behavior. It assures that hardly anyone can see what’s going on. Volkswagen exploited the cover of darkness for all that it could.

Peter Barnes, an old colleague of mine who writes about the commons from an economic perspective, recently published an essay about “common wealth trusts” as a structure to be used in transitioning to a new economy.  The essay, on the Great Transition Initiative website, recapitulates and extends an idea that Barnes has written about in the past – how to use stakeholder trusts to manage common assets (minerals, forests, electromagnetic spectrum, groundwater, etc.) while providing dividends to all citizens who are also co-owners of those assets. 

Barnes argues that common wealth trusts “address the two greatest flaws in contemporary capitalism—its relentless destruction of nature and widening of inequality—while still keeping the benefits that markets provide.”  Trusts can work because they can provide clear (collective) property rights and formal management systems around resources that are invisible to markets and in many instances threatened with privatization.  He writes:

…..Markets currently do not acknowledge such wealth or recognize its value, much less its common ownership. Because of this enormous market failure, private businesses take, use, or pollute common wealth without limit, generally without paying its right­ful owners for the pri­vi­lege. By so doing, private businesses and their narrow group of owners capture much of the value added by common wealth, exacerbating inequality. If businesses had to pay for the use of common wealth, these things would not happen, or at least would happen much less. What are now unpriced exter­nal­i­ties or straight-out thefts would become costs for businesses that could generate income for everyone.

“Organizing common wealth so that markets respect its co-inheritors and co-beneficiaries requires the creation of common wealth trusts, legally accountable to future generations,” Barnes argues. “These trusts would have authority to limit usage of threatened ecosystems, charge for the use of public resources, and pay per capita dividends. Designing and creating a suite of such trusts would counterbalance profit-seeking activity, slow the destruction of nature, and reduce inequality.”

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.

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