The Commons as a Growing Global Movement
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This is the fourth of 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.
The overriding challenge for our time – as outlined in our three previous CSRwire essays – is for human societies to develop new ways of interacting with nature and organizing our economic and social lives. It’s imperative that we rein in the mindless exploitation of fragile natural systems upon which human civilization depends.
The largest, most catastrophic problem, of course, is climate change, but each of the “smaller” ecological challenges we face – loss of biodiversity, soil desertification, collapsing coral reefs and more – stem from the same general problem: a mythopoetic vision that human progress must be achieved through material consumption and the ceaseless expansion of markets.
State/Market Solutions Doomed to Failure
While most people look to the State or Market for solutions, we believe that many of these efforts are doomed to failure or destined to deliver disappointing results. The State/Market duopoly – the deep alliance between large corporations, politicians, government agencies and international treaty organizations – is simply too committed to economic growth and market individualism to entertain any other policy approaches.
The political project of the past forty years has been to tinker around the edges of this dominant paradigm with feckless regulatory programs that do not really address the core problems, and indeed, typically legalize existing practices.
Solution: Stewardship of Shared Resources
So what might be done?
We believe that one of the most compelling, long-term strategies for dealing with the structural causes of our many ecological crises is to create and recognize legally, alternative systems of provisioning and governance. Fortunately, such an alternative general paradigm already exists.
It’s called the commons.
This is the third of 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 the previous two essays in this series, we outlined our approach to Green Governance as a new model or paradigm for how we can relate to the natural environment. We also stressed how “Vernacular Law” – a kind of socially based “micro-law” that evolves through commons activity (“commoning”) – can establish legitimacy and trust in official state law, and thereby unleash new sorts of grassroots innovation in environmental stewardship.
In this essay, we explore another major dimension of the large shift we are proposing: how human rights can help propel a shift to Green Governance and thereafter help administer such governance once achieved.
Nothing is more basic to life than having sustainable access to food, clean air and water, and other resources that ecosystems provide. Surely a clean and healthy environment upon which life itself depends should be recognized as a fundamental human right.
This is the second of 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 in January 2013. The essays originally appeared on CSRWire.
Is it possible to solve our many environmental problems through ingenious interventions by government and markets alone? Not likely. Apart from calls for eco-minded behavior (recycle your cans, insulate your house), ordinary citizens have been more or less exiled from environmental policymaking.
The big oil, coal and nuclear power companies have easy access to the President and Congress and expert lawyers and scientists have privileged seats at the table. But opponents of, say, the Keystone Pipeline are mostly ignored unless they get arrested for protesting outside of the White House.
A New Kind of Law to Underpin the CommonsThat’s why we believe it’s important to talk about a “new” category of law that has little recognition among legislators and regulators, judges and lobbyists. We call it “Vernacular Law.” “Vernacular” is a term that the dissident sociologist Ivan Illich used to describe the informal, everyday spaces in people’s lives where they negotiate their own rules and devise their own norms and practices.
In our last essay, we introduced the idea of commons- and rights-based governance for natural ecosystems. We turn now to Vernacular Law because its matrix of socially negotiated values, principles and rules are what make a commons work.
Vernacular Law originates in the informal, unofficial zones of society – the cafes and barber shops, Main Street and schools, our parks and social networking websites. What emerges in these zones is a shared wisdom and a source of moral legitimacy and authority. Colonial powers frequently used their formal law to forcibly repress the use of local languages so that their controlling mother tongue could prevail.
Professor Burns Weston and I recently published a series of six essays on CSRWire (CSR = “Corporate Social Responsibility”) that were derived from our book Green Governance: Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.
The book – an outgrowth of the Commons Law Project -- is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment. Green Governance opens the door to a new set of solutions by proposing new types of environmental protection based on broader notions of economics and human rights and on commons-based governance. At the heart of the book is a new architecture of environmental law and public policy that is theoretically innovative, but also quite practical.
The paperback edition was recently released, making it available to a much larger readership. To introduce the book to people who may have missed it the first time around, I am posting the original six CSRWire essays by Burns and me over the course of the next week. I hope you enjoy them! -- David
At least since Rachel Carson’s Silent Spring, we have known about humankind’s squandering of nonrenewable resources, its careless disregard of precious life species, and its overall contamination and degradation of delicate ecosystems. Simply put, the State and Market, in pursuit of commercial development and profit, have failed to internalize the environmental and social costs of their pursuits. They have neglected to take measures to preserve or reproduce the preconditions of capitalist production – a crisis now symbolized by the deterioration of the planet’s atmosphere.
Despite the scope of the challenges facing us, there are credible pathways forward. In our recent book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, we propose a new template of effective and just environmental protection based on the new/old paradigm of the commons and an enlarged understanding of human rights. We call it “green governance.” It is based on a reconceptualization of the human right to a clean and healthy environment and the modern rediscovery of the age-old paradigm of the commons.
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.
Jonny Gordon-Farleigh of STIR magazine shared with me an arresting little snippet of history that speaks eloquently about the quiet role of social reciprocity in a civilized life. Consider walking paths as commons, as described by Robert Macfalance in his book, The Old Ways: A Walking Journey:
“Paths are consensual, too, because without common care and common practice they disappear....In nineteenth-century Suffolk [UK] small sickles called 'hooks' were hung on stiles and posts at the start of certain well-used paths: those running between villages, for instance, or byways to parish churches. A walker would pick up a hook and use it to lop off branches that were starting to impede passage. The hook would then be left at the other end of the path, for a walker coming in the opposite direction. In this manner the path was collectively maintained for general use.”
It seems to be that we need more modern-day “hooks” that invite people to participate in anonymous acts of self-directed enterprise and reciprocal generosity. Sounds like a great alternative, when feasible, to the connivances of large markets and remote, centralized bureaucracies.
The good folks at the Tellus Institute in Boston have recently relaunched the Great Transition Initiative -- “an online forum of ideas and an international network” dedicated to developing “a new praxis for global transformation.” As part of that effort, I was invited to submit an essay on how the commons might contribute to the “Great Transition.”
In my essay, “The Commons as a Template for Transformation,” I argue that “the commons paradigm can help us imagine and implement a serious alternative—a new vision of provisioning and democratic governance that can evolve within the fragile, deteriorating edifice of existing institutions.” My basic argument:
The commons—a paradigm, discourse, ethic, and set of social practices—provides several benefits to those seeking to navigate a Great Transition. It offers a coherent economic and political critique of existing Market/State institutions. Its history includes many venerable legal principles that help us both to imagine new forms of law and to develop proactive political strategies for effecting change. Finally, the commons is supported by an actual transnational movement of commoners who are co-creating innovative provisioning and governance systems that work.
For readers of this blog, most of the themes in my GTI essay will be familiar. My goal was to synthesize many disparate threads into a single, 5,000-word case for the commons. I wanted help a policy-oriented readership see how the commons paradigm could help us re-imagine and transform economics, politics, culture, and particularly ecological stewardship.
After introducing the whole commons concept for the uninitiated, I review a sampling of commons that manage ecological resources and describe the rise of the contemporary commons movement. I also urge that we imagine “a new architecture of commons-based law and policy,” drawing heavily on my recent book with Burns Weston, Green Governance: Ecological Survival, Human Rights and the Law of the Commons (Cambridge University Press). And finally, I assess the prospects and limitations of the commons paradigm, and conclude:
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.
The recent industrial disaster in West Virginia, which saw the leakage of vast quantities of toxic chemicals into the river and drinking water supplies, prompted Grant Mincy of East Tennessee to reflect on the enclosure of countless commons in the Appalachia region of the US. His piece in Counterpunch, “Reclaiming the Commons in Appalachia,” caught my eye because it pointed to the extreme inequalities, suffering and dispossession that have occurred in Appalachia as corporate control has gotten more concentrated. A sudden – the huge spill of chemicals into the river – then shines a bright spotlight on the situation.
Mincy notes how the “extractive resource industry” – chiefly coal companies – have used their property rights and political influence to enclose the commons of Appalachia:
The use of eminent domain and compulsory pooling has robbed communities of their cultural and natural heritage. Capital is the authority of the Appalachian coalfields, and has created systemic poverty and mono economies. Instead of prosperity in the commons, the mechanism of authority has spawned tragedy.
Property is theft in Appalachia. The current system is concerned with the well-being of the politically connected corporati instead of the common good – Appalachian communities. This system exists because legal privilege is granted to industry. The development of this socio-economic order is political, as opposed to free and participatory. The current authority in the coalfields, the corporate state, is illegitimate. It is far past time we transition to society free of it.
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