history

An important new book offering a vision of commons-based law has just arrived!  The Ecology of Law:  Toward a Legal System in Tune with Nature and Community, argues that we need to reconceptualize law itself and formally recognize commoning if we are going to address our many environmental problems.

The book is the work of two of the more venturesome minds in science and law – Fritjof Capra  and Ugo Mattei, respectively. Capra is a physicist and systems thinker who first gained international attention in 1975 with his book The Tao of Physics, which drew linkages between modern physics and Eastern mysticism. Mattei is a well-known legal theorist of the commons, international law scholar and commons activist in Italy who teaches at Hastings College of the Law in San Francisco, and at the University of Turin. He is also deputy mayor of Ch­ieri in the northern region of Italy.

The Law of Ecology is an ambitious, big-picture account of the history of law as an artifact of the scientific, mechanical worldview – a legacy that we must transcend if we are to overcome many contemporary problems, particularly ecological disaster. The book argues that modernity as a template of thought is a serious root problem in today’s world.  Among other things, it privileges the individual as supreme agent despite the harm to the collective good and ecological stability. Modernity also sees the world as governed by simplistic, observable cause-and-effect, mechanical relationships, ignoring the more subtle dimensions of life such as subjectivity, caring and meaning.

As a corrective, Capra and Mattei propose a new body of commons-based institutions recognized by law (which itself will have a different character than conventional state law).

It’s quite a treat to watch two sophisticated dissenters outline their vision of a world based on commoning and protected by a new species of “ecolaw.” Capra and Mattei start their story by sketching important parallels between natural science and jurisprudence over the course of history. Both science and law, for example, reflect shared conceptualizations of humans and nature.  We still live in the cosmological world articulated by John Locke, Francis Bacon, Rene Descartes, Hugo Grotius and Thomas Hobbes, all of whom saw the world as a rational, empirically knowable order governed by atomistic individuals and mechanical principles. This worldview continues to prevail in economics, social sciences, public policy and law.

The relationship between law and the commons is very much on my mind these days.  I recently posted a four-part serialization of my strategy memo, "Reinventing Law for the Commons."  The following public talk, which I gave at the Heinrich Boell Foundation in Berlin on September 8, is a kind of companion piece.  The theme: this year's celebration of the 800th anniversary of Magna Carta and its significance for commoners today.

A video version of my talk can be seen here -- along with a talk on P2P developments by my colleague Michel Bauwens, and general discussion with the audience moderated by Silke Helfrich.

Thank you for inviting me to speak tonight about the 800th anniversary of the Magna Carta and the significance of law for the commons.  It’s pretty amazing that anyone is still celebrating something that happened eight centuries ago!   Besides our memory of this event, I think it is so interesting what we have chosen to remember about this history, and what we have forgotten.

This anniversary is essentially about the signing of peace treaty on the fields of Runnymede, England, in 1215.  The treaty settled a bloody civil war between the much-despised King John and his rebellious barons eight centuries ago.  What was intended as an armistice was soon regarded as a larger canonical statement about the proper structure of governance.  Amidst a lot of archaic language about medieval ways of life, Magna Carta is now seen as a landmark statement about the limited powers of the sovereign, and the rights and liberties of ordinary people.

The King’s acceptance of Magna Carta after a long civil war seems unbelievably distant and almost forgettable.  How could it have anything to do with us moderns?  I think its durability and resonance have to do with our wariness about concentrated power, especially of the sovereign.  We like to remind ourselves that the authority of the sovereign is restrained by the rule of law, and that this represents a new and civilizing moment in human history.  We love to identify with the underdog and declare that even kings must respect something transcendent and universal called “law,” which is said to protect individual rights and liberties. 

In this spirit, the American Bar Association celebrated Magna Carta in 1957 by erecting a granite memorial at Runnymede bearing the words “Freedom Under Law.”  On grand public occasions – especially this year – judges, politicians, law scholars and distinguished gray eminences like to congregate and declare how constitutional government and representative democracy are continuing to uphold the principles of Magna Carta.  More about that in a minute.

One of the great economists of the twentieth century had the misfortune of publishing his magnum opus, The Great Transformation, in 1944, months before the inauguration of a new era of postwar economic growth and consumer culture. Few people in the 1940s or 1950s wanted to hear piercing criticisms of “free markets,” let alone consider the devastating impacts that markets tend to have on social solidarity and the foundational institutions of civil society. And so for decades Polanyi remained something of a curiosity, not least because he was an unconventional academic with a keen interest in the historical and anthropological dimensions of economics. 

As the neoliberal revolution instigated by Reagan and Thatcher in the 1980 has spread, however, Polanyi has been rediscovered.  His great book – now republished with a foreword by Joseph Stiglitz – has attracted a new generation of readers. 

But how to make sense of Polanyi’s work with all that has happened in the past 70 years?  Why does he still speak so eloquently to our contemporary problems? For answers, we can be grateful that we have The Power of Market Fundamentalism:  Karl Polanyi’s Critique, written by Fred Block and Margaret R. Somers, and published last year. The book is a first-rate reinterpretation of Polanyi’s work, giving it a rich context and commentary.  Polanyi focused on the deep fallacies of economistic thinking and its failures to understand society and people as they really are. What could be more timely?

The cult of free market fundamentalism has become so normative in our times, and economics as a discipline so hidebound and insular, that reading Polanyi today is akin to walking into a stiff gust of fresh air.  We can suddenly see clear, sweeping vistas of social reality.  Instead of the mandarin, quantitative and faux-scientific presumptions of standard economics – an orthodoxy of complex illusions about “autonomous” markets – Polanyi explains how markets are in fact embedded in a complex web of social, cultural and historical realities.

What does enclosure feel like from the inside, as a lived experience, as a community is forced to abandon its “old ways” and adopt the new worldview of Progress and Profit?  British author Jim Crace’s novel, Harvest, a finalist for the Man Booker Prize in 2013, provides a beautiful, dark and tragic story of the first steps of the “modernization” of a preindustrial English village.

The story focuses on a hamlet that is suddenly upended when the kindly lord of the settlement, Master Kent, discovers that his benign feudal control of a remote patch of farmland and forest has been lost to his scheming, cold-hearted cousin, Edmund Jordan.  Jordan is a proto-capitalist who has a secret plan to evict everyone and turn their fields into pastures for sheep.  He plans to become rich producing wool for the flourishing export market.  But Jordan can’t simply announce his planned dispossession of land lest it provoke resistance.  He realizes that he must act with stealth and subterfuge to take possession of the land and eradicate the community, its values and its traditions.

The story is essentially a tale of what happens when a capitalist order seeks to supplant a stable and coherent community.  But this states the narrative too crudely because the book is a gorgeously written, richly imagined account of the village, without even a hint of the ideological.  Told through the eyes of a character who came to the village twelve years earlier, the story doesn’t once mention the words “enclosure,” “capital” or “Marx.”  (Indeed, the Wall Street Journal’s reviewer praises the book for “brilliantly suggest[ing] the loamy, lyric glories of rustic English language and life.”)

Harvest depicts the sensuous experiences of a village community wresting its food from nature, but with relative peace and happiness.  "Our great task each and every year is to defend ourselves against hunger and defeat with implements and tools. The clamour deafens us. But that is how we have to live our lives," the narrator tells us.  The book also shows how easily this world is shattered by a brutal outsider who uses fear and social manipulation to rip apart a community in order to install a new regime of efficiency, progress and personal gain.

One of the most influential works in my thinking about the commons has been Karl Polanyi’s 1944 book The Great Transformation:  The Political and Economic Origins of Our Times. A Hungarian economic historian and anthropologist, Polanyi  argued that world history dramatically changed in the 17th and 18th centuries when “Market Society” arose to displace societies that had been based on kinship, religion and social relationships.  Where once people were embedded in communities of reciprocity and redistribution, capitalist markets gradually turned societies into the alienated collectives of rational, utility-maximizing individuals dominated by the market order. The Great Transformation is a brilliant historical account of this transition from a commons-based world to market society.

Polanyi's book had the misfortune to be published at the wrong time, 1944, just as the nations of the world were racing to embrace market economics and soar into modern times.  In the 1950s and 1960s climate of the Cold War, go-go economic growth and gee-whiz technology, few serious people wanted to hear about how “the market” should be tamed and made to serve society – Polanyi’s primary theme.  The overriding goal of that period was to grow, grow, grow, with little thought for the long-term social and ecological consequences.

As a result, The Great Transformation has been largely exiled from the canon of mainstream economic literature for the past 70 years. Hayek’s The Road to Serfdom, also published in 1944, was far more in sync with the postwar cultural wave and went on to become a foundational book for modern corporatists and conservatives.  For decades the curious reader could only find archaic-looking reprint editions of The Great Transformation until Beacon Press came out with a new edition in 2001, with a new introduction by economist Joseph Stiglitz.

All of this is by way of background to the news that Concordia College has just gone live with a massive online archive of Polanyi’s work.  Exciting news! The archive is housed at the Karl Polanyi Institute of Political Economy, which was founded in 1988 at Concordia. The archive has an estimated 110,000 documents, which range from correspondence and unpublished papers to lecture notes, articles and manuscripts in Hungarian, German and English. Here is the official announcement of the archive at the Karl Polanyi Institute of Political Economy.

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.

It is always refreshing to read Peter Linebaugh’s writings on the commons because he brings such rich historical perspectives to bear, revealing the commons as both strangely alien and utterly familiar. With the added kick that the commoning he describes actually happened, Linebaugh’s journeys into the commons leave readers outraged at enclosures of long ago and inspired to protect today's endangered commons. 

This was my response, in any case, after reading Linebaugh’s latest book, Stop, Thief!  The Commons, Enclosures and Resistance (Spectre/PM Press), which is a collection of fifteen chapters on many different aspects of the commons, mostly from history.  The book starts out on a contemporary note by introducing “some principles of the commons” followed by “a primer on the commons and commoning” and a chapter on urban commoning.  For readers new to Linebaugh, he is an historian at the University of Toledo, in Ohio, and the author of such memorable books as The Magna Carta Manifesto and The London Hanged. 

Stop, Thief! is organized around a series of thematic sections that collect previously published essays and writings by Linebaugh.  One section focuses on Karl Marx (“Charles Marks,” as he was recorded in British census records) and another on British enclosures and commoners (Luddites; William Morris; the Magna Carta; “enclosures from the bottom up”).  A third section focuses on American commons (Thomas Paine; communism and commons) before concluding with three chapters on First Nations and commons.

On the eve of Thanksgiving here in the US, Andro Linklater, the author of a new book, Owning the Earth:  The Transforming History of Land Ownership (Bloomsbury), describes how the Pilgrims imposed their notions of private property on the land commons in the New World.  The consequences – while perhaps inevitable, whether from them or other settlers – were nonetheless pivotal in the future development of America.  Lanklater published an excerpt of his book recently on the Bloomberg News website. (Tragically, Linklater died a week before his book’s publication on November 12.)

In 1623, William Bradford, the future governor of the colony, declared that land would be privately owned and managed, with each family assigned a parcel of land “according to the proportion of their number.”  This decision had profound effects on how individual Pilgrims managed their land and related to each other.  

As Bradford wrote:  ‘‘And no man now thought he could live except he had catle and a great deale of ground to keep them all, all striving to increase their stocks. By which means they were scattered all over the bay quickly and the towne in which they lived compactly till now was left very thinne.’’ You might say that private property rights in land were the beginning of suburban sprawl. 

Linklater points out that the native people, the Wampanaog, had allowed individual parcels of land to be used and occupied by individual families, but no one could have exclusive, permanent ownership of the land.  As the Wampanaog leader Massasoit explained:  ‘‘The land is our mother, nourishing all her children, beasts, birds, fish, and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?’’

Journalist Cat Johnson recently published an interview with me on Shareable.net, the lively chronicler of new types of sharing and collaboration, especially on digital platforms and in cities.  The interview is a brief survey of my thinking on the commons as a promising political strategy and governance template.  Here’s an excerpt: 

“We need to imagine new forms of governance,” he [Bollier] says. “It’s not as if the state is going to be rendered useless or unimportant tomorrow, but the state needs to explore new forms of governance if it’s going to keep its own legitimacy and effectiveness.”

He points to the fact that government’s incompetence and incapacity for dealing with problems, as centralized, territorial institutions, is going to become more evident.

“Just as governments charter corporations, ostensibly to serve the common good,” he says, “the government ought to be chartering the commons and providing financial assistance and legal sanction and even privileges. Because at a local, self-organized level, the commons can perform lots of tasks that governments just aren't doing well because they’re too corrupted or bought off or too centralized and incapable of dealing with diverse, distributed complexity.” He adds, “At the core, it’s a governance problem. Even liberal, constitutional democracies are not capable of solving all these problems.”

Kester Brewin, a teacher of mathematics in South East London, was wondering why his son has been invited to countless pirate-themed birthday parties, but not any aggravated robbery themed parties.  What's the reason for our fascination with pirates?

 Brewin’s answer is an amazing 13-minute video talk  for TEDx Exeter (UK) based on his 2012 book, Mutiny! Why We Love Pirates and How they Can Save Us. The talk is a powerful account of 18th century piracy and a plea for all of us to become pirates as acts of radical emancipation.

For the full effect, I urge you to watch the full video....but here is a key excerpt transcribed from Brewin’s talk:

 

What I want to propose is that whenever we see pirates, we see a system in some kind of trouble, whether it involves politics, economics, spirituality, culture or the arts.  Pirates send us a signal that something that should be held in the hands of common people, has been taken away.

Now if we look back in history, the golden age of pirates, the early 1700s, we see England, Spain, France and Holland trying to enclose the new world of the Americas into their empires.  At this time we are right at the birth of emerging global capitalism.  The engine of this movement is the ship.  And the petrol in the engines are sailors.