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For many people, the commons exists as some sort of Platonic ideal -- a fixed, universal archetype.  That’s silly, of course, because commons are so embedded in a given place and moment of history and culture, and therefore highly variable.  Derek Wall takes this as a point of departure in his new book, The Commons in History:  Culture, Conflict and Ecology (MIT Press).  At 136 pages of text, it is a short and highly readable book, but one that conveys much of the texture of commons and enclosures as paradigms -- and the implications for ecosystems.

Wall is an economist at Goldsmith College, University of London, so he knows a few things about the biases of conventional economics.  He is also a member of the Green party of England and Wales, and therefore knows a few things about corporate power and oppositional politics. 

As the author of a recent intellectual biography, The Sustainable Economics of Elinor Ostrom (Routledge), Wall has a subtle mastery of Ostrom’s approach to the commons, but he is not afraid to wade into the political aspects of commons.  He notes, for example, “most commons have not been found to succeed or fail on the basis of their own merits.  Instead, they have been enclosed, and access has been restricted and often turned over to purely private ownership or state control.”  He adds that “commons is a concept that is both contests and innately political in nature.  Power and access to resources remain essential areas for debate.”

It is entirely appropriate, then, that Wall goes beyond the familiar Hardin-Ostrom debate on the rationality and economic value of commons, to explore what he calls “the radical case for the commons,” as outlined by E.P. Thompson and Christopher Hill, among others.  While Marxist criticisms of the environmental effects of capitalism so often hit the mark, Wall points out that “the commons is not utopia.  A common-pool property rights do not guarantee a free and equal society.”  

That’s partly because a commons is not a unitary model, but only a template with highly variable outcomes.  People may have common rights to use “usufruct rights” on privately owned land, for example, authorizing them to gather fallen wood.  This can be considered a type of commons, albeit not one as self-sovereign and robust as those with communally owned and controlled land.  Commons may also coexist with hierarchical power relationships – a reality that also militates against a radical equality.

It is always refreshing to read Peter Linebaugh’s writings on the commons because he brings such rich historical perspectives to bear, revealing the commons as both strangely alien and utterly familiar. With the added kick that the commoning he describes actually happened, Linebaugh’s journeys into the commons leave readers outraged at enclosures of long ago and inspired to protect today's endangered commons. 

This was my response, in any case, after reading Linebaugh’s latest book, Stop, Thief!  The Commons, Enclosures and Resistance (Spectre/PM Press), which is a collection of fifteen chapters on many different aspects of the commons, mostly from history.  The book starts out on a contemporary note by introducing “some principles of the commons” followed by “a primer on the commons and commoning” and a chapter on urban commoning.  For readers new to Linebaugh, he is an historian at the University of Toledo, in Ohio, and the author of such memorable books as The Magna Carta Manifesto and The London Hanged. 

Stop, Thief! is organized around a series of thematic sections that collect previously published essays and writings by Linebaugh.  One section focuses on Karl Marx (“Charles Marks,” as he was recorded in British census records) and another on British enclosures and commoners (Luddites; William Morris; the Magna Carta; “enclosures from the bottom up”).  A third section focuses on American commons (Thomas Paine; communism and commons) before concluding with three chapters on First Nations and commons.

Poetry of the Commons

I’ve always thought that the commons, in its attempt to achieve a holistic balance of relationships, is profoundly aesthetic and ethical.  It aspires to a certain dynamic but disciplined shapeliness.  How wonderful, then, to encounter Harris Webster’s Japanese-style poetry about the commons, inspired by his reading of The Wealth of the Commons:  A World Beyond Market and State!     

A few years ago, Webster, a retiree living in Montpelier, Vermont, heard a presentation on the commons by University of Vermont professor Gary Flomenhoft.  Then he read a number of pieces on the commons in Kosmos journal and discovered The Wealth of the Commons.

Webster has a hobby of writing tanka poems, a genre of classical Japanese poetry akin to haiku.  He had developed a taste for Japanese poetry in the course of several exchange visits with the prefecture of Tottori, Japan, as the representative of the Japan-American Society of Vermont.  Webster decided that he wanted to capture the essence of some essays in The Wealth of Commons in the succinct, austere style of tanka. (Links to the original essays are embedded in the authors' names and essay titles.)

I hope you enjoy this wonderful poetic experiment as much as I do! 

Introduction

Question: Should earth’s people share

our earth’s seven seas?

Answer: When some Somalians

lost their share of fishing grounds,

they became pirates.

 

Good church members are stewards

of the church commons,

its resources  and culture.

Earth’s people should be stewards

of the earth’s Commons.

 

Unknown Elinor Ostrom

won a Nobel Prize

for research on the Commons

throughout our wide world.

May it be well known world wide!

 

The Commons looks at the ‘whole.’

resources, people, and norms,

(oceans, fishermen, and rules,)

nested together.

Do markets and government?

 

Do people value

good soil and fresh air?

Of course , but they are not priced,

advertised or for sale.

Is that why they’re uncommon?

Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.

In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources.  He asked:  “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”

His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law:  Effective Judicial Intervention,” in the Michigan Law Review -- a piece that went on to become one of the most influential law review articles ever.

The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens' sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.

Now Available -- Think Like a Commoner

I'm thrilled to announce the publication of my new book, Think Like a Commoner:  A Short Introduction to the Life of the Commons (New Society Publishers). Unlike so many of my previous books on the commons – which explored some specific aspect of the commons (culture, copyright, ecological commons) or were aimed at academic readers – Think Like a Commoner is a general overview of the commons written for the general reader. 

It’s my attempt to reach the not-necessarily-political layperson to introduce the commons paradigm in an accessible, non-academic way, but without dumbing things down.  The book provides a succinct overview of the great diversity of commons in the world and the many pernicious enclosures now being fought.  It describes the logic, worldview and ethics of the commons, and the burgeoning international movement of commoners, especially in Europe and the global South. 

I’ve created a special website for the book – www.Think LikeACommoner.com – for those who want to keep track of the reviews and my upcoming appearances.  I’ve also included an extensive set of citations, keyed to page numbers in the book, which amount to footnotes and recommendations for further reading.  I didn’t want to burden a book intended for general readers with all the scholarly hoohah of notes, but of course some people do want to inquire further into certain aspects of the commons. Hence the web-based notes.

At the end of the book, I include a number of short references:  the statement, "The Commons, Short and Sweet"; Silke Helfrich’s chart, “The Logic of the Commons and the Market”; a select bibliography of further readings on the commons; and a listing of leading websites on the commons.

I’m grateful for the glowing endorsements that the book has received from Bill McKibben, Ralph Nader, Maude Barlow, David Korten, Michel Bauwens and Peter Barnes.  You can read those at the book website.

If you'd prefer to read the book in French or Polish, there are translations already available.  My thanks to the Charles Léopold Mayer Foundation for its support for the book (and the French translation), and to FreeLab, the translators of the Polish edition, and the publisher, the social cooperative Faktoria.

In her brilliant new book, Mary Christina Wood, a noted environmental law scholar at the University of Oregon, Eugene, courageously sweeps aside the bland half-truths and evasions about environmental law.  In Nature’s Trust:  Environmental Law for a New Ecological Age (Cambridge University Press), Wood argues:  “That ancient membrane of law that supposedly functions as a system of community restraint [is] now tattered and pocked with holes.”  Our current regulatory system will never solve our problems.  She continues:

"A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests.  As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws.  Only a transformational approach can address sources of legal decay."

Wood’s mission in Nature’s Trust is to propose a new legal framework to define and carry out government’s ecological obligations.  For Wood, a huge opportunity awaits in reinvigorating the public trust doctrine, a legal principle that goes back millennia.  She explains how the doctrine could and should guide a dramatically new/old approach to protecting land, water, air and wildlife. 

In 1970, Professor Joseph Sax inaugurated a new era of legal reforms based on the public trust doctrine with a famous law review article.  For a time, Sax’s essay sparked energetic litigation to protect and reclaim waters that belong to everyone.  The focus was especially on beachfronts, lakes and riverbanks, and on wildlife.  But as new environmental statutes were enacted, some courts and scholars began to balk and backtrack and hedge.  They complained that the public trust doctrine should take a backseat to environmental statutes.  Or that the doctrine should apply only to states.  Or that it applies only to water and wildlife, and not to other ecological domains.  And so on.

Max Haiven, a writer, teacher and organizer in Halifax, Canada, recently posted an essay on the website of ROAR magazine that is excerpted from his forthcoming book, Crisis of Imagination, Crises of Power:  Capitalism, Creativity and the Commons (Zed Books).  It’s a fascinating piece that dissects the formidable capacity of global capitalist systems to control our sense of the possible. 

It seems that Haiven has been thinking quite deeply about how the “financialization of culture”  for some time.  He writes:  “…the system is more invested than ever in preoccupying and enclosing our sense of self and of the future; our hopes, dreams and aspirations; and our capacity to imagine.”  A sense of futility preemptively neutralizes any threats to the system without the need to use visible force.  Modest incremental improvements within the existing system are the best that anyone can aspire to. 

“From this perspective,” writes Haiven, an assistant professor at the Nova Scotia College or Art and Design, “radical social movements that seek to transform society can only be interpreted as vainglorious or pathologically ideological. It is also this fatalism that enables radicalisms to be co-opted and internalized within the system: if the system cannot actually be overcome, the only horizon of dissent is an inadvertent improvement of the system itself.  Radical demands for the re-imagining of value are tamed and made to offer piecemeal solutions to capitalist crises; attempts to live out anti-capitalist values are transmuted into commercialized subcultures; anti-racist or feminist movements are co-opted into opportunities for a select few to enter into the middle class.”

So what to do?  Haiven brilliantly explains how commoning can be effectively “jam” the usual cooptation strategies deployed by the Market/State:   

Coming Soon: Think Like a Commoner

My year got off to a zippy start when Ralph Nader named my new book – due out in February – as #1 in his list of “Ten Books to Provoke Conversation in the New Year.”  Thanks, Ralph!

Think Like a Commoner:  A Short Introduction to the Life of the Commons is my attempt to introduce the commons to the lay reader and concerned citizen. I wanted to explain the commons in simple but not simplistic language while pointing toward the many deep and complicated aspects of the commons, and to the diverse points of entry to the subject.  My publisher is New Society Publishers, known for its environmental and activist-minded books.

Think Like a Commoner is my best effort to provide a succinct, lucid overview of the commons. In relatively short chapters, I discuss its history, academic scholarship and many cultural variations.  I explore the political and economic implications of the commons and dozens of activist fronts and working projects.  I also look at the international commons movement and provide a list of further reading and other resources. 

It’s no exaggeration to say that it’s taken me fifteen years to write this book!  While Silent Theft, my first foray into commons research and scholarship, came out in 2002, I’ve had quite an odyssey of reading, debate, conference-going and reflection over the past decade.  I decided it was important to circle back on myself to try to make better sense of the commons, ten years later, and to try to communicate it more clearly.

Now it's on to the public outreach / marketing stage of the book.  For that, I'm grateful to climate change activist Bill McKibben for his supportive blurb:  “The Commons is among the most important and hopeful concepts of our time, and once you've read this book you'll understand why!” 

Writer’s Voice, a national radio show and podcast featuring authors, recently devoted an hour to talking with me about the commons. The chief focus was on my new book co-authored with Burns Weston, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, which Cambridge University Press published in January. 

Our book recovers from history many fragments of what we call “commons-based law” from such sources as Roman law, the Magna Carta and Charter of the Forest, and public trust doctrine governing natural resources.  We also point to many modern-day analogues such as international treaties to manage Antarctica and space as commons. We wish to show that commons-based law is in fact a long and serious legal tradition – but one that has also been quite vulnerable, particularly over the past two centuries as market-oriented priorities have eclipsed the commons. 

Burns Weston and I argue that the right to a clean and healthy environment, and to access to nature for subsistence (as opposed to for profit-making market purposes), should be recognized as a human right.  The right to meet one’s everyday household needs – by responsibly managing forests, pasture, orchards and wild game as a commons – was recognized by the Charter of the Forest, adopted by King Henry III, the son of King John, in 1217.

This right was essentially a right to survive because commoners depended on the forest for food, fuel, economic security and other basic needs. Such precedents ought to inform our discussions today, when the rights of investors and markets in effect override any human right to survival (consider the many free trade treaties that override democratic sovereignty, ecological protections and local control).

In this age of marauding markets, it almost seems quaint to ask, “Who owns culture?”  We know the answer.  When push comes to shove, the owners of copyright, trademarks and patents own everything.  We may think that the music, images and stories of our culture belong to us, but as a matter of law, in the 165+ countries that have signed the Berne Convention, our designated role is....to buy (and not use someone else's "property.")   

A new book of essays complicates this picture.  Negotiating Culture:  Heritage, Ownership and Intellectual Property -- just published by the University of Massachusetts Press -- points out some of the distinct limits to “intellectual property’s” dominion.  The book is a series of essays by academics from various disciplines that explores how social practice and culture have their own moral legitimacy and social power -- enough to push back on claimed property rights. 

The book chronicles controversies over who should have legal rights of ownership and control over Native American remains, Green and Roman antiquities, works of art looted by the Nazis, among many other objects and resources.  We are asked to consider whether culture should be treated as property that can be bought and sold (and treated accordingly), or whether it must be considered inalienable, or not suitable for sale on the market, and treated with the utmost dignity and respect.  

These are the magic words:  It seems that the core issue in so many of these disputes is a matter of identity, dignity, respect and, of course, power.

Museums are increasingly at the epicenter of cultural ownership issues these days.  The 2005 trial in Italy of Marion True, the former curator of classical art at the J. Paul Getty Museum, is a beautiful case study of how social norms about the ownership of ancient antiquities have dramatically shifted.  Prior to that trial, museums often bought or accepted donated antiquities without too much thought about the provenance of the work.  After all, antiquities don’t usually come with title deeds or receipts, and it was an open secret that many of them were dug up by looters and spirited out of the country into the hands of profit-minded dealers.

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