The world of law is not especially welcoming of the idea of the commons. There are too many blurry lines and idiosyncratic contingencies. Lawyers like bright-line rules and cause-and-effect scenarios. The varieties of commons are also unsettling to legal minds, it seems, because commons can be difficult to systematize and square with western law and its focus on individuals.
Lawyers also prefer to see law as a partner with neoliberal capitalism and its mythopoetic narratives about human progress through technology, consumerism and economic growth. These attitudes are especially problematic when it comes to environmental law, which has not been terribly effective over the past fifty years in restraining the appetites of capital-driven markets and corporate property owners.
To be sure, property law scholars spend some time dealing with the commons as an alternative to the standard narratives. But here, too, the “tragedy” parable tends to prevail and the commons is usually treated as a curiosity of medieval history and rural, “under-developed” countries. It is not seen as a hardy, versatile contemporary paradigm that might actually address some deep pathologies of the "free market." For example, the commons helps us talk about the compulsive externalizing of costs, the ethics of monetizing all value, the growth imperatives of the economy today, the legal prejudices against collective stewardship and long-term commitments, and our cultural alienation from nature and each other, among other issues.
Generations of such thinking will not be easily overcome, I realize, but I am nonetheless pleased to announce a brave attempt to carve out a richer space for the commons in legal education. A new law textbook, International Environmental Law and World Order: A Problem-Oriented Coursebook, just published in the Third Edition by West Publishing, includes a chapter by me, “The Future of International Environmental Law: A Law of the Ecological Commons?”