David Bollier

Below, a continuation of yesterday's post from the strategy memo, "Reinventing Law for the Commons," Part II of the four-part piece.

II.  Legal Innovations in Beating the Bounds:  Nine Promising Fields of Action 

Part II surveys the enormous amount of legal innovation going on in various commons-related fields of action.  The point of this section is to identify specific initiatives that are trying to transform the legal paradigm or carve out new “protected zones” of enforceable rights within existing legal frameworks.  I have identified nine major “clusters” of interesting experimentation and ferment:

1.  Indigenous Commons   

2.  Subsistence Commons in the Global South       

3.  Digital Commons       

4.  Stakeholder Trusts

5.  Co-operative Law 

6.  Urban Commons  

7.  Localism            

8.  New Organizational Forms     

9.  Re-imagining State Policy to Empower Commons   

Today's post focuses on the first four "clusters"; tomorrow's deals with #5 through #9.  And the final day will deal with Part III:  The Strategic Value of Developing Law for the Commons, and Part IV:  Next Steps.

The list of clusters and examples in Part II is not comprehensive.  It is merely a first attempt to assemble the fragments of commons-based legal innovation into a new mosaic that makes key, unifying themes more visible.  (I invite readers of this memo to inform me of any worthy additions by contacting me at david/at/bollier.org.)  Some examples may belong in two or more clusters, which I’ve tried to indicate with cross-references.  In Part III, I will reflect on the political and philosophical implications of the examples of Part II, followed by a discussion in Part IV of practical steps that might be taken to consolidate and extend Law for the Commons as a coherent body of legal activism.

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.

One of the great advantages of a commons analysis is its ability to deconstruct the prevailing myths of “intellectual property” as a wholly private “product” – and then to reconstruct it as knowledge and culture that lives and breathes only in a social context, among real people.  This opens up a new conversation about if and how property rights in knowledge should be granted in the first place.  It also renders any ownership claims about knowledge under copyrights and patents far more complicated -- and requires a fair consideration of how commons might actually be more productive substitutes or complements to traditional intellectual property rights.

After all, it is taxpayers who subsidize much of the R&D that goes into most new drugs, which are then claimed as proprietary and sold at exorbitant prices.  Musicians don’t create their songs out of thin air, but in a cultural context that first allows them to freely use inherited music and words from the public domain -- which future musicians must also have access to. Science can only advance by being able to build on the findings of earlier generations.  And so on.

The great virtue of a new report recently released by the Berlin-based Commons Network is its application of a commons lens to a wide range of European policies dealing with health, the environment, science, culture, and the Internet.  “The EU and the Commons:  A Commons Approach to European Knowledge Policy,” by Sophie Bloemen and David Hammerstein, takes on the EU’s rigid and highly traditional policy defense of intellectual property rights.  Bloemen and Hammerstein are Coordinators of the Berlin-based Commons Network, which published the report along with the Heinrich Böll Foundation.  (I played a role in its editing.)  The 39-page report can be downloaded here -- and an Executive Summary can be read here. 

“The EU and the Commons” describes how treating many types of knowledge as commons could not only promote greater access to knowledge and social justice, it could help European economies become more competitive. If EU policymakers could begin to recognize the generative capacities of knowledge commons, drug prices could be reduced and climate-friendly “green technologies” could be shared with other countries. “Net neutrality” could assure that startups with new ideas would not be stifled by giant companies, but could emerge. And scientific journals, instead of being locked behind paywalls and high subscription fees, could be made accessible to anyone.

Sometimes it takes anthropologists to ask the really deep questions and help us imagine another world. That became clear to me after listening to Dr. Harry Walker, an anthropologist at the London School of Economics, give the prestigious Malinowski Memorial Lecture in late May. 

Walker has long studied the people of Peruvian-Amazonia, with special attention to “the nature of the self and its relationship to interpersonal and political processes.” His provocative, thoughtful lecture, “Equality Without Equivalence: an anthropology of the common,” is a meditation on the deep clash between our modern, western ideas of liberal equality and private property, and the different modes of being and knowing that are nourished in commons.

The talk essentially juxtaposes Walker's conclusions about aboriginal commons against the context of representative government and market economics, helping to reveal the peculiar ideals of humanity embedded in the liberal polity.  (Thanks, Miguel Vieira, for alerting me to Walker's podcast!)

A bit of background:  Walker is the author of Under a Watchful Eye:  Self, Power and Intimacy in Amazonia, which is described on the author’s website as an exploration of

the pervasive tension in Amazonian societies between a cultural prioritization of individual autonomy and uniqueness, and an equally strong sense that satisfaction and self-realization only come through relations with others. In seeking to understand the inherently shared or ‘accompanied’ nature of human experience, it brings together considerations of child care and socialization, relations with nonhumans, and concepts of power, in order to show how agency and a sense of self emerge through everyday practices involving the cultivation of intimate but asymmetrical relationships of nurturance and dependency.

Walker’s one-hour talk is too long and complex to summarize here, so I will focus on some of his concluding insights. He noted that a central theme of Amazonian commons is the idea of “living well” – to organize one’s life and productive efforts in such a way that it “imbues life with a sense of meaning, purpose and direction.” The point is to strive for “a state of happiness and tranquility,” especially with loved ones.