property law

Book tours are known for being grueling odysseys. While it wasn’t a breeze to speak at two dozen events in ten weeks of travel in Europe, UK and the US, it was a joy for me to connect with so many different commoners. I found my visits often amounted to field research filled with unexpected discoveries and chance insights. At events I invariably wound up meeting several fascinating commoners and learning about some amazing research initiative. 

My general conclusion:  The commons world is quite robust -- but it’s not terribly visible to mainstream culture. So the book tour confirmed the aspirations that my coauthor Silke Helfrich and I had for the book, Free, Fair and Alive. We wanted to generate some new concepts, vocabulary, and analyses to bring commoning into sharper focus. That forced us to dig more deeply into the inner dimensions of commoning and into its political implications, especially as it bumps up against property rights and state power.

I'm happy to say that all of our efforts paid off in the end. I kept meeting people who are all too ready to move beyond conventional politics and explore the rich possibilities of the commons. 

To recap for newcomers: Free, Fair and Alive is one of the most comprehensive, in-depth looks at what the commons means in contemporary life. Silke and I spent almost three years trying to make sense of the countless commons we had observed over the preceding 15 years. From her village in Germany and on trains criss-crossing Europe, and from my office in Amherst, Massachusetts -- with occasional in-person work sessions -- we plunged into a serious mutual debriefing about what we had each learned. We wanted to see if we could conceptualize the commons in ways that truly reflect what we had witnessed in Mexico and Greece, India and Germany, the US and UK, and many other places.

Halfway through our research, we realized with a shock that much of the language we were using was seriously wrong and misleading. When using words like “individual,” “rationality” and “resources,” for example – the standard vocabulary of modern economics – we found ourselves locked into a deeply troubling worldview. Do we really wish to regard human beings -- as economists ostensibly do -- as isolated individuals striving to maximize their material self-interests and “externalizing” costs on to “nature.” Is this what "rationality" is?  

I recently spoke at a conference, “Property and Inequality in the 21st Century,” hosted by The Common Core of European Private Law, an annual gathering of legal scholars, mostly from Europe.  They had asked me how the commons might be a force for reducing inequality.  Below are my remarks, “The Commons as a Tool for Sharing the Wealth.”  The conference was held at the University of Göteborg, Sweden, on June 12-13, 2015.

Thank you for inviting me to speak today about the relationship between property law and inequality – a topic that receives far too little attention.  This should not be surprising.  Now that free-market ideology has become the default worldview and political consensus around the world, private property is seen as synonymous with freedom, economic growth and human progress. 

Oh yes, there is this nasty side issue known as inequality.  Malcontents like the Occupy movement and renegade economists like Thomas Pikketty have brought this problem to the fore after years of neglect.  Their success has been quite an achievement because for years the very existence of inequality has been portrayed as an accident, an aberration, a mysterious and shadowy guest at the grand banquet of human progress. 

I wish to argue that hunger, poverty, inadequate education and medical care, and assaults on human dignity and human rights, are not bugs in the system.  They are features.  Indeed, market ideologues often argue that such deprivations are a necessary incentive to human enterprise and economic growth; poverty is supposedly needed to spur people to escape through the work ethic and entrepreneurialism. 

Property rights lie at the heart of this dynamic because they are a vital tool for defining and patrolling the boundaries of private wealth, and for justifying the inevitably unequal outcomes.  So it’s important that we focus on the role of property rights in producing social inequality – without ignoring the many other forces, including social practice, culture and politics, that also play important roles.

I’d like to focus on the obsession in modern industrial societies to propertize everything, including life itself, and to use law as a tool to impose a social order of markets and private property as expansively as possible.  This cultural reflex is known as the enclosure of the commons.  The term describes how property owners assert sweeping rights – often with the active complicity of governments – as a way to appropriate collectively owned resources for private gain. 

We can see this dynamic in the international land grab now underway, the incessant attempts to privatize groundwater and municipal water systems, the grotesque expansion of copyright and patent law to privatize scientific knowledge and cultural works, and the use of the Earth’s atmosphere as a free waste dump by polluters.  The mania for privatizing the world has reached such an extreme stage that even intangible wealth as public spaces, microorganisms, genetically created mammals, artificially created nanomatter and human consciousness itself are claimed as objects of private property rights.  

In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law.  What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding?  Who has legal rights in these various contexts, and what do they look like?  Who holds the legal liabilities?

These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided.  But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants.  Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people. 

But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules? 

Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy:  Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing).  The book covers a monumental array of legal topics that are relevant to the sharing economy.  Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work.  There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.  

It was 82 years ago last week that 400 men of the British Workers Sports Federation marched up to Kinder Scout, a bleak moorland plateau in Peak District of England. The march was an act of civil disobedience to protest the lack of legal access to “ramble” on open lands. As the trespassers scrambled up toward the Kinder plateau, they encountered the Duke of Devonshire’s gamekeepers.  What happened next is the stuff of grand lore in British rambling: 

In the ensuing scuffle, one keeper was slightly hurt, and the ramblers pressed on to the plateau. Here they were greeted by a group of Sheffield-based trespassers who had set off that morning crossing Kinder from Edale. After exchanging congratulations, the two groups joyously retraced their steps, the Sheffield trespassers back to Edale and the Manchester contingent to Hayfield.

As they returned to the village, five ramblers were arrested by police accompanied by keepers, and taken to the Hayfield Lock-up. The day after the trespass, Rothman and four other ramblers were charged at New Mills Police Court with unlawful assembly and breach of the peace [and]….were found guilty and were jailed for between two and six months.

The arrest and subsequent imprisonment of the trespassers unleashed a huge wave of public sympathy, and ironically united the ramblers cause.   A few weeks later in 1932 10,000 ramblers – the largest number in history – assembled for an access rally in the Winnats Pass, near Castleton, and the pressure for greater access continued to grow.

On the 75th anniversary of this act of civil disobedience, in 2007, Lord Roy Hattersley described the “Kinder Trespass” as “the most successful direct action in British history" (unless you want to count Gandhi's quite larger direct actions as part of British history!).  (Here is The Guardian’s account of the Trespass in 1932.) 

Why did this event have such an impact on British consciousness that it is still celebrated – and remains controversial in some quarters? 

Because it was about the legitimate scope of private property rights. The Kinder Trespass was intended to point out how unfair and anti-social private land ownership laws were, and how they constrained the public's “right to ramble."