state power

The following essay is my contribution to the recently published anthology, 'The Great Awakening: New Modes of Life amidst Capitalist Ruins' (Punctum Books), published under a Creative Commons Attribution-ShareAlike license. I co-edited this volume with my colleague Professor Anna Grear of Cardiff University. More about the book at the Punctum Books website.

The chapter asks some basic questions about the future of commons within a system of state power and law: Can commoning be affirmatively protected via conventional state law while respecting the integrity of commoning as a post-capitalist social form? Can Vernacular Law and modern law be artfully blended, if only as a makeshift venture?

The essay is about 7,000 words, so it's not a quick read, but it outlines some salient legal challenges that we face in moving commons forward. It feels like a nice companion piece to my recent podcast interview with Janelle Orsi of Sustainable Economies Law Center.

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In recent years, the power and diversity of commoning in contemporary life has increased dramatically. Commoning is both an ancient and rediscovered social form that can be seen in the stewardship of forests, fisheries, and farmland, especially in subsistence and indigenous contexts. It lies at the heart of community land trusts, local currencies, mutual aid networks, and cohousing. It is embodied in community-supported agriculture, agroecology, and permaculture, and in digital spaces that produce open source software, hardware, and design. Commoning is at work in open access scholarly journals, crowdfunding tools, and platform cooperatives, and in academia, arts and culture, and many other realms.

Because commons are strongly inclined to respect ecological limits and devise fair-minded, flexible governance through inclusive participation, they hold great promise in dealing with many societal problems. However, commoning as a legal activity faces an uncertain future. Its practices and values are philosophically alien to many aspects of the liberal market and state and their mutual focus on individualism, calculative rationality, material gain, and market growth.[1] Commoning therefore has trouble gaining legal recognition and support. Indeed, the state is predisposed to ignore the commons, criminalize its activities, or exploit its resources in alliance with the business class.

The commons may be a pariah within the world of conventional politics because it challenges the foundational terms of ideological debate, which presumes that the market and state are ideological adversaries – the “private sector” battling the “public sector.” This is a specious binary because market and state are in fact deeply interdependent and both subscribe to the grand narrative of “social progress through economic growth.” The state looks to the market for economic growth, tax revenues, and social mobility for its citizens, while market players look to the state for a stable legal order, subsidies, state support and privileges, and the mitigation of market abuses (pollution, social disruption, inequality). State and market are so utterly symbiotic it is entirely warranted to speak about the market/state system.[2]

From within this dominant worldview, it is almost a foregone conclusion that collective management of wealth would be seen as a “tragedy of the commons” – the over-exploitation and ruin of a resource.[3]  To the guardians of the market/state, after all, individual agency and rights are supreme. Collective action is not perceived as feasible or attractive. By definition, human beings are defined as atomistic individuals, not as co-participants in shared histories, cultures, interests, and values. When people are conceived of as “rational individuals” with boundless “incentives” to take as much as they can, it should not be surprising that heedless consumption and the reckless “externalization of costs” follows.[4]

Now, however, this convenient fiction is starting to fall apart. Critics are increasingly calling out the claim that a commons is simply a selfish free-for-all when, in fact, this scenario more accurately describes what we might call the tragedy of the market.[5] The commons is in fact a durable social form that orchestrates shared intentionality to steward wealth responsibly and inclusively over the long term. In a commons, people willingly negotiate rules of peer governance, resolve group conflicts, and enforce rules. They develop ways to pool and share (or divide up or mutualize) their collective wealth, without resort to a state Leviathan to maintain law, order, and personal safety.

Thomas de Groot, Head of Programmes at the Commons Network in Amsterdam, recently spoke with Silke Helfrich and David Bollier about the future of social security systems and how the commons can offer alternative transition paths.

The interview is shortened for clarity. SH is Silke Helfrich, DB is David Bollier and TdG is Thomas de Groot. The original posting of this interview was at the Commons Network website. 

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TdG: ‘Could you share your thoughts about the need for a different vision for our systems of social security?’

SH: ‘Sure. Let’s start by identifying why it is so important to link the issue of social security to commons-thinking. We are all burdened by a structural dependency on the market-based economy. And so are our social security systems. This is what we see now with the Covid-19 pandemic. The state spends billions and billions to keep businesses going because it assumes that flourishing businesses will generate more money for the state. And in fact, the state is dependent on those capital flows and tax revenues.

‘So there is a direct link between economic crises and the crisis of our social security system. This should scare us all. We know there will be another crisis. This is why we need to think about the future of the economy and of social security in such a way that we make ourselves more independent of the capitalist, market-based economy.’

DB: ‘I like the phrase ‘from redistribution to predistribution’, meaning that we need to go from the current situation, where the state redistributes wealth in a certain way, to a situation where people control and manage wealth to start with. This is not the same as equity ownership because the goal is not to use assets to generate profits or return on investment, but to have shared wealth and infrastructure for creating provisions and services outside of the market and state.’

‘There is a direct link between economic crises and the crisis of our social security system. This should scare us all.’

It has been an awful and amazing two weeks – a time of reckoning that is long overdue, a time of coming together that, despite the tragic circumstances, has been enlivening. What is so remarkable is that the Black Lives Matter protests have been nested within a larger, unprecedented trauma, the pandemic. I have found the protests riveting and inspiring, and the brazen police brutality enraging.  The outpouring has issued a call to all of us, especially white people, to look beyond the engrained American norms that have made life so dangerous and demoralizing for people of color.

Anthropologist/activist David Graeber sees the spontaneous protests as part of a larger movement. As he put it in a tweet: “Direct action and social movement are about the re-creation of society. Society has been taken from us. There has been a 40-year campaign to destroy attachments unmediated by the state or capital. This is the only way to start rebuilding it.” We are witnessing a re-convening of the American people and their ideals.

However, the pain of history is not past, as Faulkner once said. That's because the past is not really past. It is very much with us, internalized, in the present. Thanks to the protests, triggered by a brazen murder carried out by an agent of the state and circulated on social media, a deeper shift in consciousness has begun. It is now clear that there are really no bystanders. We are all implicated, particularly those with white privilege. As the artist Banksy put it, “At first I thought I should just shut up and listen to black people about this issue. But why would I do that? It’s not their problem. It’s mine.”

This very idea enrages President Trump, whose denial is manifest in countless deflections and vile insults aimed at protecting white supremacy. Thankfully, history is not trending in his direction. Already major corporations and even the National Football League, the long-time nemesis of “take a knee” quarterback Colin Kaepernick, now publicly support Black Lives Matter. The burden has visibly shifted to white people to look within themselves and take affirmative steps for change.

How refreshing, too, to see ordinary people assert a new vision of history in real time! Citizens have spontaneously toppled statues honoring Confederate General Robert E. Lee and Christopher Columbus. In Bristol, England, a crowd threw the statute of 17th century slave-trader Edward Colston – responsible for selling more than 84,000 Africans into slavery -- into the harbor.

In corvid-19, neoliberal capitalism has met a formidable foe. The pandemic has shown just how fragile and dysfunctional the market/state order -- as a production apparatus, ideology, and culture -- truly is. Countless market sectors are now more or less collapsing with a highly uncertain future ahead. With a few notable exceptions, government responses to the virus range from ineffectual to self-serving to clownish.

While politicians clearly hope that massive government bailouts will restore the economy, it’s important to recognize that this is not just a financial crisis; it’s a social and political crisis as well. Many legacy market systems – generously subsidized and propped up by state power – are not really trusted or loved by people. Do Americans really want to give $17 billion to scandal-ridden Boeing while letting the post office go bankrupt? It is too early to declare that the old forms will never return, and we do need to remember that the authoritarian option is dangerously close. But it is clear that the future will have a very different pattern.

To me, one thing is obvious: searching for the rudiments of a New Order should be our top priority once emergency needs are taken care of. We need to identify and cultivate new patterns of peer provisioning and place-based governance, especially at the local and regional levels. We need new types of infrastructures and new narratives that understand the practical need for open-source civic and economic engagement.

This is not only necessary to help us deal with climate change and inequality; it is a preemptive necessity for fortifying democracy itself. Reactionary forces are already poised to try to restore a pre-pandemic “normal." “Prepare for the Ultimate Gaslighting,” writes filmmaker Julio Vincent Gambuto in a wonderful essay on Medium.

Gambuto astutely predicts that corporate America, the White House, and the rest of capitalist establishment will soon mount a massive marketing campaign to minimize the realities we’re now experiencing and rebrand the American Dream as back:

Get ready, my friends. What is about to be unleashed on American society will be the greatest campaign ever created to get you to feel normal again. It will come from brands, it will come from government, it will even come from each other, and it will come from the left and from the right. We will do anything, spend anything, believe anything, just so we can take away how horribly uncomfortable all this feels.

And on top of that, just to turn the screw that much more, will be the one effort that’s even greater: the all-out blitz to make you believe you never saw what you saw. The air wasn’t really cleaner; those images were fake. The hospitals weren’t really a war one; those stories were hyperbole. The numbers were not that high; the press is lying. You didn’t see people in masks standing in the rain risking their lives to vote. Not in America…. But you did. You are not crazy, my friends. And so we are about to be gaslit in a truly unprecedented way.

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?