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 Commons, published 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 of 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.