environment

(I am back from some time at the beach, ready to resume my reporting about the latest commons developments, of which there are many.  More to come!)

Dutch legal scholar Femke Wijdekop of the Institute for Environmental Security has tackled an urgent question for anyone concerned with planetary environment.  She writes: 

How can we construct a right to a healthy and clean environment that is enforceable in today’s complex international legal order? What legal construct would be visionary and ambitious enough to meet the urgent need for environmental justice and protection and at the same time be enforceable in court rather than fall into the category of ‘soft law’?

Wijdekop answers these questions in an essay, “A Human Right to Commons- and Rights-based Ecological Governance:  the key to a healthy and clean environment?” The legal analysis was published by the Earth Law Alliance, a group of lawyers organized by British lawyer Lisa Mead who advocate an eco-centric approach to law. 

Wijdekop’s piece draws upon some of the ideas in my book with Burns Weston, Green Governance in arguing for “procedural environmental rights to establish, maintain, participate in, be informed about and seek redress for ecological commons.”  She has presented these ideas to international lawyers and constitutional scholars in The Hague, and is now reaching out to environmentally minded lawyers.

No respectable person in American politics dares to question the virtue of economic growth even though it is increasingly clear that life on Earth will collapse if current patterns of extraction and consumption continue.  So what is the responsible path forward?

It was exciting that the Institute for Policy Studies in Washington, D.C. decided to host a two-hour webinar to explore this topic two weeks ago.  The dialogue – “A Deeper Look at the Limits to Growth:  Looking Beyond GDP Towards a Post-Growth Society” – amounted to dipping a toe into the water rather than a confident plunge.  But for Americans, who woefully lag behind European activists on this topic, it was a welcome attempt to get beyond conventional political stances. 

Economic growth is always touted as the absolute precondition for greater social justice or environmental progress.  Yet somehow growth never really translates into sustainable gains for the environment or fairer allocations of rewards.  Nonmarket goals are always a receding chimera, an afterthought, a political football.  On the other hand, it is equally true that criticizing economic growth is a sure-fire way to be politically marginalized in American public life.  That's a real problem, too.

The IPS webinar sought to probe the “fundamental rift between traditional progressives over the future of economic growth.  One segment argues that ecological limits dictate that the economic growth paradigm that we know is over…..Other progressives argue we should pursue growth policies -- or even ‘green growth’ -- and not concede that we are ‘anti-growth.’” 

Here is how IPS introduced the webinar:

How do we move beyond the notion that green economists are tone-deaf to equity issues? How do we move beyond the misguided aspirations of many groups excluded from economic prosperity to grow the pie so they can have a larger piece of the pie?  What is the green economist message to traditionally economically excluded constituencies?

Is there a way to “redefine growth” that doesn’t politically concede limits to growth? (After all, conventional wisdom say no politician will win on a degrowth program). Is there a common framework that can unify both of these movements that address both of these group’s deep systemic concerns?

In the past, organized labor and environmentalists have gamely attempted to find a common ground – a “blue/green alliance” – that would push for higher wages and stronger environmental protection at the same time.  Such projects have been a valiant effort to force capital to internalize its negative externalities (pollution, habitat destruction, etc.) and allocate the benefits of growth more equitably.

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

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.

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

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.

That’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

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.