commons strategies

Below are slightly edited remarks that I delivered at a a workshop, "Beyond Liberalism: Commons, Constitutionalism and the Common Good," in Berlin, Germany, on May 31, 2023. The event was hosted by the  Max Planck Institute for Comparative Public Law and International Law, the Heidelberg Law Department at the University of Würzburg, and The New Institute (Hamburg, Germany). 

A video version of the talk (with my slides, two formal responses, and audience Q&A) can be found here: https://youtu.be/ckseZNahi84  My talk begins at the 5:32 timecode.

The Commonsverse as a Parallel Polis: Opportunities and Challenges

The dialogue provoked by this workshop is timely and necessary because so many of the certitudes of political economy and culture are slowly crumbling before our eyes. It's fair to say that so many grand narratives of our time -- about citizenship, freedom, property rights, economic growth, and theories of value – have been called into question these days. Existing institutions and categories of thought aren't working so well.

On the one hand, few people want to talk about structural change and necessary alternatives lest it open a Pandora's Box of monsters and chaos. On the other hand, as we move more deeply into the danger zones of climate change, authoritarian nationalism, savage precarity and inequality, and institutional breakdown, we have little choice. We need to abandon some settled habits. We desperately need to find a new North Star and a more stable, wholesome order.

Today, I'd like to introduce the idea of the commons to you and suggest its enormous potential for re-imagining so many things – the capitalist political economy, state power, our social relations and hierarchies, our relations with the Earth, our inner lives. To be sure, this is a daunting proposition and a long-term project.  We not only have to develop some very different social logics and institutional forms while entrenched in a problematic system. We also have to change ourselves. We have to find ways to overcome the unresolved traumas of capitalism, colonialism, and centralized state power whose norms we have internalized or repressed.

In my remarks, I'd like to suggest that commons and commoning can provide us with the scaffolding to reinvent a vision of the common good. It can help us develop more humane social practices and ethical behaviors at the cellular level, which, as they expand, can help us move beyond a world of capital accumulation, consumerism, and progress-through-growth.

To be sure, most commons today are dismissed as too small-scale, local and cash-poor to be significant. To the mainstream, they appear to be archaic oddities. Respectable opinion assumes that the market and state are the only two serious regimes for "getting things done." There is the “private sector” and the “public sector,” and not much else really matters. 

On the latest episode of my Frontiers of Commoning podcast (Episode #23), I speak with Sara Arnold and Sandra Niessen, two leading activists who are boldly calling for "a radical defashion future" based on degrowth, commoning, and clothing cultures that escape consumerism.  

Through the organization Fashion Act Now, a growing band of dissident fashionistas want to make the clothing industry more ecologically responsible, relocalized, and culturally in sync with this moment in history, especially with respect to climate change, economic justice, and decolonialization. This means greatly reducing the industry's resource and energy use, and moving away from hyper-consumerist "fast fashion" business models that generate colossal waste and ecological harm.

My podcast interview with Arnold and Niessen is a spirited, often surprising conversation. It's not often that I've heard the words "fashion," "biodiversity" and system-change" uttered in the same sentence.

British fashion designer Sara Arnold started her career by launching a clothing rental platform, Higher Studio. Her idea was to incentivize a more environmentally sensitive "circular economy" in clothing by promoting rentals and re-use over consumption.

Sounds good, but she soon realized that her business  was actually helping to expand the market for clothing. Moreover, she saw that there are many larger environmental and climate problems that the fashion industry is largely ignoring.

So Arnold joined Extinction Rebellion to organize its #BoycottFashion and Cancel Fashion Week campaigns. Taking things further, in 2020 she co-founded Fashion Act Now as a campaign organization for defashion -- a term she coined to describe deep, systemic shifts in the industry that can address climate change and respect planetary limits.

The following essay is my contribution to the recently published anthology, 'The Great Awakening: New Modes of Life amidst Capitalist Ruins' (Punctum Books), published under a Creative Commons Attribution-ShareAlike license. I co-edited this volume with my colleague Professor Anna Grear of Cardiff University. More about the book at the Punctum Books website.

The chapter asks some basic questions about the future of commons within a system of state power and law: Can commoning be affirmatively protected via conventional state law while respecting the integrity of commoning as a post-capitalist social form? Can Vernacular Law and modern law be artfully blended, if only as a makeshift venture?

The essay is about 7,000 words, so it's not a quick read, but it outlines some salient legal challenges that we face in moving commons forward. It feels like a nice companion piece to my recent podcast interview with Janelle Orsi of Sustainable Economies Law Center.

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In recent years, the power and diversity of commoning in contemporary life has increased dramatically. Commoning is both an ancient and rediscovered social form that can be seen in the stewardship of forests, fisheries, and farmland, especially in subsistence and indigenous contexts. It lies at the heart of community land trusts, local currencies, mutual aid networks, and cohousing. It is embodied in community-supported agriculture, agroecology, and permaculture, and in digital spaces that produce open source software, hardware, and design. Commoning is at work in open access scholarly journals, crowdfunding tools, and platform cooperatives, and in academia, arts and culture, and many other realms.

Because commons are strongly inclined to respect ecological limits and devise fair-minded, flexible governance through inclusive participation, they hold great promise in dealing with many societal problems. However, commoning as a legal activity faces an uncertain future. Its practices and values are philosophically alien to many aspects of the liberal market and state and their mutual focus on individualism, calculative rationality, material gain, and market growth.[1] Commoning therefore has trouble gaining legal recognition and support. Indeed, the state is predisposed to ignore the commons, criminalize its activities, or exploit its resources in alliance with the business class.

The commons may be a pariah within the world of conventional politics because it challenges the foundational terms of ideological debate, which presumes that the market and state are ideological adversaries – the “private sector” battling the “public sector.” This is a specious binary because market and state are in fact deeply interdependent and both subscribe to the grand narrative of “social progress through economic growth.” The state looks to the market for economic growth, tax revenues, and social mobility for its citizens, while market players look to the state for a stable legal order, subsidies, state support and privileges, and the mitigation of market abuses (pollution, social disruption, inequality). State and market are so utterly symbiotic it is entirely warranted to speak about the market/state system.[2]

From within this dominant worldview, it is almost a foregone conclusion that collective management of wealth would be seen as a “tragedy of the commons” – the over-exploitation and ruin of a resource.[3]  To the guardians of the market/state, after all, individual agency and rights are supreme. Collective action is not perceived as feasible or attractive. By definition, human beings are defined as atomistic individuals, not as co-participants in shared histories, cultures, interests, and values. When people are conceived of as “rational individuals” with boundless “incentives” to take as much as they can, it should not be surprising that heedless consumption and the reckless “externalization of costs” follows.[4]

Now, however, this convenient fiction is starting to fall apart. Critics are increasingly calling out the claim that a commons is simply a selfish free-for-all when, in fact, this scenario more accurately describes what we might call the tragedy of the market.[5] The commons is in fact a durable social form that orchestrates shared intentionality to steward wealth responsibly and inclusively over the long term. In a commons, people willingly negotiate rules of peer governance, resolve group conflicts, and enforce rules. They develop ways to pool and share (or divide up or mutualize) their collective wealth, without resort to a state Leviathan to maintain law, order, and personal safety.

In our legal system -- designed to protect private property, individual rights, and market exchange – it can actually be very difficult to share things legally. Attorney Janelle Orsi found this out the hard way as she worked with co-housing groups, worker cooperatives, and community gardens. “Our clients kept running up against legal barriers that make no sense: employment laws for co-ops in which people are both employer and employee. Landlord-tenant law for cohousing projects in which people are both landlords and tenants.”

Such frustrations led Orsi to co-found (with Jenny Kassan) the Sustainable Economies Law Center (SELC) in Oakland, California, in late 2009. It has since become a singlular team of venturesome lawyers attempting creative hacks on antiquated laws and regulations.Their clients are not corporations or other deep-pocket moguls, but grassroots groups, cooperatives, and social justice organizations, especially in the Bay Area.

The story of the Sustainable Economies Law Center’s amazing work is the subject of my latest Frontiers of Commoning podcast, Episode #8. Janelle explains some of the innovative legal strategies that the Law Center uses to try to help cooperatives, commons, low-income communities, and Native Americans, among others. (Full disclosure: I am on SELC’s advisory board.)

“The law treats people as atomized, bounded individuals in conflict with each other, in an attempt to keep people separate,” said Orsi. Much of the work at the Law Center is therefore about coming up with ingenious hacks on the law so that people can solve their problems together. The organization describes its theory of change this way: 

“Neither our communities nor our ecosystems are well served by an economic system that incentivizes perpetual growth, wealth concentration, and the exploitation of land and people. Communities everywhere are responding to these converging economic and ecological crises with a grassroots transformation of our economy that is rapidly re-localizing production, reducing resource consumption, and rebuilding the relationships that make our communities thrive."

I am happy to announce the publication of a new anthology that I co-edited with Professor Anna Grear, Professor of Law and Theory at Cardiff University in the UK.  The book is entitled The Great Awakening: New Modes of Life Amidst Capitalist Ruins, released by punctum books last week. 

The book asks the question: As we enter a time of climate catastrophe, worsening inequality, and collapsing market/state systems, can human societies transcend the old, dysfunctional paradigms and build the world anew?

The answer:  There are many signs of hope. In ten different essays, the book dissects the core problems of neoliberal capitalism and showcases some particularly encouraging vectors of transformation.

Anna and I want to thank the ten cutting-edge activists, scholars, and change-makers who joined us in producing this book. The authors probe the deep roots of our current predicament while reflecting on the social DNA required to build a post-capitalist future. A golden thread connecting the chapters is the role of commoning in building working utopias with the capacity to protect themselves and grow in a hostile capitalist environment. As Grear and I write in our Introduction:

Basic structures of contemporary life seem to be falling apart, no longer able to contain the chaotic energies unleashed by global capitalism, digital technologies, libertarian market culture, and modernity. One might call it a Great Unraveling. Yet, paradoxically, this period of history might also be called, accurately, the Great Awakening.

There is a growing awareness of the need for a fundamental shift in mindset and culture, as suggested by the youth climate protests of recent times; the rise of progressive politics; and a general sense that the system is broken and needs to be replaced. Amidst the messy unwinding of obsolete paradigms, many sturdy, fresh, and green sprouts of change — marginal, as yet, to the public consciousness — are emerging.

One of the most difficult things to endure in this pandemic, apart from the biophysical threat of Covid-19 itself, is the evaporation of meaning. Familiar institutions and norms are being revealed as dysfunctional or anti-social, leaving us in a fog of disorientation. Can the old, familiar narratives about “free markets” and a (seemingly) benign state truly be trusted to help us deal with the dangers we face? Reasonable people have reasonable doubts.

While sense-making has become a hothouse activity over the past five months, I have encountered three essays that have been of particular help to me in coming a clearer understanding of our current plight. These pieces are by ecophilosopher Andreas Weber, my long-time commons colleague Silke Helfrich, and systems-change activists Nora Bateson and Mamphela Ramphele.

In “Nourishing Community in Pandemic Times” Andreas Weber notes how the lockdown of the past several months underscores a point that neoliberalism has generally avoided – that “the individual can only live if the collective, which she constitutes with all others, is able to thrive.”

Market economics and corporations have little direct interest in the thriveability of a society, of course. They are structured to extract and privatize wealth, and monetize it for market exchange. That is their avowed mission, bolstered by a culture of individualistic materialism. Now that investors have largely commandeered state power to make this the top priority in societies, many governments around the world only pretend to serve the citizenry with any vigor. Everything is really about market growth.    

African Americans have long been victimized by the theft of their land, labor, and the ability to buy land as they wish. Following the Civil War, few former slaves actually received the 40 acres and a mule promised them, and in later decades, all sorts of discriminatory federal policies and bank lending practices made it harder for Blacks and other non-Whites to acquire land. This only served to make it harder for them to earn a decent income, amass household wealth, and improve their lot.

Following the Black Lives Matters protests there have been a spate of important proposals for addressing these forms of structural racism and inequality. One idea gaining momentum is to move more land into community land trusts (CLTs), making it easier for African Americans to gain access to land for farming, housing, and other purposes while neutralizing capitalism’s tendency to generate greater structural inequality.

Acquiring more land for CLTs dedicated to African-American cultural use would be a great way to address a colossal historic wrong.  It would serve as a practical and effective reparation that would benefit many African Americans and communities, and could at the same time reclaim land for ecological and socially valuable purposes.

Theft of Black land has been remarkably common over the decades, as a number of journalistic accounts have documented in recent years. In 2019, for example, Pro Publica and The New Yorker described how white developers and lawyers used legal trickery and corrupt judges to take over ancestral land owned by two Black brothers in Carteret County, North Carolina. The practices have been widely used in the South as a way to steal land from African Americans.

Between outright bans on black ownership of land, discriminatory lending policies, racially motivated zoning, and legal ploys to steal land, African Americans have often had trouble acquiring land and thereby the wealth that could bring them into the middle class. It is estimated that between 1910 and 1997, African Americans lost an estimated 90 percent of their farmland.

The following essay is adapted from a talk given on May 5 at Radical May, a month-long series of events hosted by a consortium of fifty-plus book publishers, including my own publisher, New Society Publishers. My talk -- streamed and later posted on YouTube here -- builds on two previous blog posts.

As the pandemic continues, it is revealing just how deeply flawed our societal institutions really are. Government programs reward the affluent and punish the poor, and are often ineffectual or politically corrupted. The market/state order is so committed to promoting market growth and using centralized hierarchies to control life, that the resulting systems are fragile, clumsy, and non-resilient. And so on. It is increasingly evident that the problems we face are profoundly systemic.

After dealing with emergencies, therefore, we need to pause and think about mid-term changes in how we can redesign our economy and governance institutions. We need second responders to help emancipate ourselves from archaic, ineffective institutions and infrastructures. We must not revert to old ideological patterns of thought as if the pandemic were simply a temporary break from the normal. “Normal” is not coming back. The new normal has already arrived.  

The pandemic is not just about rethinking big systems; it is also about confronting inner realities that need to change. We need to recognize and feel the suffering that is going on around us. We need to understand our interdependencies so that we can build appropriate institutions to rebuild and honor our relationships to each other. Our inner lives and external institutions need to be in better alignment.

Our years of leisurely critique of neoliberal capitalism are over. Now we need to take action to escape from its pathologies and develop new types of governance, provisioning, and social forms. Fortunately, there are many new possibilities for institutional change – in relocalization, agriculture and food, cities, digital networks, social life, and many other areas.

In corvid-19, neoliberal capitalism has met a formidable foe. The pandemic has shown just how fragile and dysfunctional the market/state order -- as a production apparatus, ideology, and culture -- truly is. Countless market sectors are now more or less collapsing with a highly uncertain future ahead. With a few notable exceptions, government responses to the virus range from ineffectual to self-serving to clownish.

While politicians clearly hope that massive government bailouts will restore the economy, it’s important to recognize that this is not just a financial crisis; it’s a social and political crisis as well. Many legacy market systems – generously subsidized and propped up by state power – are not really trusted or loved by people. Do Americans really want to give $17 billion to scandal-ridden Boeing while letting the post office go bankrupt? It is too early to declare that the old forms will never return, and we do need to remember that the authoritarian option is dangerously close. But it is clear that the future will have a very different pattern.

To me, one thing is obvious: searching for the rudiments of a New Order should be our top priority once emergency needs are taken care of. We need to identify and cultivate new patterns of peer provisioning and place-based governance, especially at the local and regional levels. We need new types of infrastructures and new narratives that understand the practical need for open-source civic and economic engagement.

This is not only necessary to help us deal with climate change and inequality; it is a preemptive necessity for fortifying democracy itself. Reactionary forces are already poised to try to restore a pre-pandemic “normal." “Prepare for the Ultimate Gaslighting,” writes filmmaker Julio Vincent Gambuto in a wonderful essay on Medium.

Gambuto astutely predicts that corporate America, the White House, and the rest of capitalist establishment will soon mount a massive marketing campaign to minimize the realities we’re now experiencing and rebrand the American Dream as back:

Get ready, my friends. What is about to be unleashed on American society will be the greatest campaign ever created to get you to feel normal again. It will come from brands, it will come from government, it will even come from each other, and it will come from the left and from the right. We will do anything, spend anything, believe anything, just so we can take away how horribly uncomfortable all this feels.

And on top of that, just to turn the screw that much more, will be the one effort that’s even greater: the all-out blitz to make you believe you never saw what you saw. The air wasn’t really cleaner; those images were fake. The hospitals weren’t really a war one; those stories were hyperbole. The numbers were not that high; the press is lying. You didn’t see people in masks standing in the rain risking their lives to vote. Not in America…. But you did. You are not crazy, my friends. And so we are about to be gaslit in a truly unprecedented way.

The pandemic now sweeping the planet is one of those historic events that will change many basic premises of modern life. Let us act swiftly to deal with the emergencies, but let us also seize the opportunity to think about long-term system change. If there is one thing that the pandemic confirms (in tandem with climate change), it is that our modern economic and political systems must change in some profound ways. And we are the ones who must push that change forward. We've already seen what state officialdom has in mind -- more bailouts for a dysfunctional system. Serious change is not a priority at all.

However, pandemics are hard to ignore. Many ideas once ignored or dismissed by Serious People – commoning, green transition policies, climate action, relocalization, food sovereignty, degrowth, post-capitalist finance, universal basic income, and much else – now don’t seem so crazy. In fact, they are positively common-sensical and compelling.

The pandemic has been horrific, but let's be candid: It has been one of the most effective political agents to disrupt politics-as-usual and validate new, imaginative possibilities.

Many things are now less contestable: Of course our drug-development system should be revamped so that parasitic corporate monopolies cannot prey upon us with high prices, marketable drugs rather than innovation, and disdain for public health needs. Of course our healthcare system should be accessible to everyone because, as the pandemic is showing, individual well-being is deeply entwined with collective health. Of course we must limit our destruction of ecosystems lest we unleash even greater planetary destabilization through viruses, biodiversity loss, ecosystem decline, and more.

In this sense, covid-19 is reacquainting us moderns with some basic human realities that we have denied for too long: 

• We human beings actually depend on living, biological systems despite our pretentions to have triumphed over nature and its material limits.

• We human beings are profoundly interdependent on each other despite our presumptions – at the core of modern economics and liberal democracy -- that we are self-sovereign individuals without collective needs. (Margaret Thatcher: "There IS no society, only individuals.")