For the past two years or more, I’ve been working on a major research and writing project to try to recover from the mists of history the bits and pieces of what might be called “commons law” (not to be confused with common law). Commons law consists of those social practices, cultural traditions and specific bodies of formal law that recognize the rights of commoners to manage their own resources. Most of these governance traditions deal with natural resources such as farmland, forests, fisheries, water and wild game. Commons law has existed in many forms, and in many cultures, over millennia.
Ever since the rise of the nation-state and especially industrialized markets, however, commons law has been marginalized if not eclipsed by contemporary forms of market-based law. Over the past 200 years, individual property rights and market exchange have been elevated over most everything else, and this has only eroded the rights of commoners, it has contributed to the destruction of the Earth and its fragile natural systems.
To address this problem, the noted international law and human rights scholar, Professor Burns Weston of the University of Iowa School of Law, and I started the Commons Law Project in 2010. We wanted to re-imagine the scope of human rights law, validate neglected forms of commons-based ecological governance and reframe the very notion of “the economy” to incorporate non-market sharing and collaboration.
It has been, I concede, an ambitious enterprise. But we had concluded that incremental efforts to expand human rights and environmental protection within the framework of the State/Market duopoly were simply not going to achieve much. Indeed, the existing system of regulation and international treaties has been a horrendous failure over the past forty years. Neoliberal economics has corrupted and compromised law and regulation, slashing away at responsible stewardship of our shared inheritance while hastening a steady decline of the world’s ecosystems – forests, wetlands, fisheries, coral reefs, the atmosphere, the polar zones, and more.