David Bollier

In her brilliant new book, Mary Christina Wood, a noted environmental law scholar at the University of Oregon, Eugene, courageously sweeps aside the bland half-truths and evasions about environmental law.  In Nature’s Trust:  Environmental Law for a New Ecological Age (Cambridge University Press), Wood argues:  “That ancient membrane of law that supposedly functions as a system of community restraint [is] now tattered and pocked with holes.”  Our current regulatory system will never solve our problems.  She continues:

"A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests.  As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws.  Only a transformational approach can address sources of legal decay."

Wood’s mission in Nature’s Trust is to propose a new legal framework to define and carry out government’s ecological obligations.  For Wood, a huge opportunity awaits in reinvigorating the public trust doctrine, a legal principle that goes back millennia.  She explains how the doctrine could and should guide a dramatically new/old approach to protecting land, water, air and wildlife. 

In 1970, Professor Joseph Sax inaugurated a new era of legal reforms based on the public trust doctrine with a famous law review article.  For a time, Sax’s essay sparked energetic litigation to protect and reclaim waters that belong to everyone.  The focus was especially on beachfronts, lakes and riverbanks, and on wildlife.  But as new environmental statutes were enacted, some courts and scholars began to balk and backtrack and hedge.  They complained that the public trust doctrine should take a backseat to environmental statutes.  Or that the doctrine should apply only to states.  Or that it applies only to water and wildlife, and not to other ecological domains.  And so on.

Max Haiven, a writer, teacher and organizer in Halifax, Canada, recently posted an essay on the website of ROAR magazine that is excerpted from his forthcoming book, Crisis of Imagination, Crises of Power:  Capitalism, Creativity and the Commons (Zed Books).  It’s a fascinating piece that dissects the formidable capacity of global capitalist systems to control our sense of the possible. 

It seems that Haiven has been thinking quite deeply about how the “financialization of culture”  for some time.  He writes:  “…the system is more invested than ever in preoccupying and enclosing our sense of self and of the future; our hopes, dreams and aspirations; and our capacity to imagine.”  A sense of futility preemptively neutralizes any threats to the system without the need to use visible force.  Modest incremental improvements within the existing system are the best that anyone can aspire to. 

“From this perspective,” writes Haiven, an assistant professor at the Nova Scotia College or Art and Design, “radical social movements that seek to transform society can only be interpreted as vainglorious or pathologically ideological. It is also this fatalism that enables radicalisms to be co-opted and internalized within the system: if the system cannot actually be overcome, the only horizon of dissent is an inadvertent improvement of the system itself.  Radical demands for the re-imagining of value are tamed and made to offer piecemeal solutions to capitalist crises; attempts to live out anti-capitalist values are transmuted into commercialized subcultures; anti-racist or feminist movements are co-opted into opportunities for a select few to enter into the middle class.”

So what to do?  Haiven brilliantly explains how commoning can be effectively “jam” the usual cooptation strategies deployed by the Market/State:   

The New Yorker recently featured an interesting overview of the Maker movement – a welcome bit of exposure for a subculture that is nearly invisible to the mainsteam.  It’s refreshing to see the hacker ethic given some due recognition and reportage – and more, serious political and economic analysis.

Alas, the analysis has its limits because it is served up by the ubiquitous scourge and skeptic of all things digital, Evgeny Morozov.  Morozov has carved out a franchise for himself by providing well-written, reflexively negative critiques of the digital world.  Morozov excels at penetrating analysis and he deserves credit for original reportage and historical research.  But he tends to wallow in the “dark side” of the digital universe, conspicuously avoiding or discounting the positive, practical alternatives. 

Almost every piece of his that I’ve read seems to conform to this narrative arc:  “You are being so screwed by digital technologies in so many ways that you can’t even imagine.  Let me expose your naivete.”  Then we are left to splutter and stew in the dismal scenario that is sketched -- and then Morozov exits.  He is rarely willing to explore alternative institutions or movement strategies that might overcome the problems that he limns. 

Still, I must thank Morozov for pointing out some important truths in his survey of the Maker world. Besides suggesting the wide extent of the movement, he does a nice job exposing the sly propagandizing of Chris Anderson, Kevin Kelly and Stewart Brand.  These are among the leading tech gurus who rhapsodize about the coming era of individual freedom and progressive social change that 3D printing, fablabs and hackerspaces are ushering in.      

Morozov revisits the history of the Arts and Crafts movement of the early 1900s, which in its time touted  amateur crafting as a force for personal autonomy and liberation. The idea was that do-it-yourself craft projects would help overcome the alienation of industrial production and provide a basis for political transformation.  As some critics at the time pointed out, however, the real problems were economic inequality and corporate power – something that the craft ethic and individual projects could never overcome on their own.

I always find it refreshing when people decide to investigate the commons from new angles and in transdisciplinary ways.  So it is a treat to learn about the web journal Lo Squaderno devoting its entire December 2013 issue (#30) to “Commons – Practices, Boundaries and Thresholds.”  The entire issue is available as a pdf file under a Creative Commons BY-ND-SA license.  

Lo Squaderno is “a free web journal devoted to exploring and advancing research movements…. [that] collects original short features by people committed to research in various fields.  Each issue is structured around a thematic focus around the topics of space, power, and society.”  This commons issue, edited by Giacomo DAlisa and Cristina Mattiuci, along with guest artist Andrea Sarti, consists of nine essays in English and three in Italian.   

Below, provocative excerpts from three of the essays.  In “Show Me the Action, and I Will Show You the Commons!” Helene Finiori, building on Silke Helfrich's observations, points out that the conventional ways of identifying common goods, based on their “rivalry” and “excludability,” is unreliable: 

Types of goods are traditionally distinguished based on their degree of rivalry (the extent to which the use of a good by one diminishes the availability for others) and excludability (the extent to which access to a good can be denied or limited). This perspective ignores for a large part the contextual and variable nature of goods in time and under the ‘stress’ of repeated activity. It does not take into account the fact that rivalry can be a matter of perception (a good may be categorized non rival because perceived as abundantly available irrespective of whether self-renewable or not, such as water in ‘wet’ places), of congestion (a good may be non rival up to a point of saturation, such as roads before they get jammed) or of yield point (a good may be non rival up to the limit beyond which there is no more resilience under stress and therefore no more self-regeneration, such as a savannah before desertification).  It does not acknowledge that low rivalry goods can also be depleted and made unavailable as a result of toxic outputs of activity (externalities). Neither does it consider the fact that property and access, in other words excludability, create artificial boundaries that businesses for example are constantly seeking to expand by inventing new property rights or business models, as part of their ‘natural’ quest to extend the perimeter in which they can generate and capture value. The examples of patented seeds and attempts to patent the human genome are the most striking.