books

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.  

For a country suffering from economic devastation and political upheaval, Greece is not accustomed to bursts of optimism.  But last weekend provided a showcase of hopeful, practical solutiions at the second annual CommonsFest, held in Heraklion on the island of Crete.  The festival brought together a dazzling array of commons and peer production communities:  hackers, open knowledge advocates, practitioners of open design, hardware and manufacturing, open health innovators, sustainable farming experts, among many others. 

Vasilis Kostakis, a political economist and founder of the P2P Lab in Greece, noted that the “key contribution of CommonsFest has been to bring together so many components of the commons movement and raise awareness amongst them.  People had the chance to meet, talk and learn from each other with the aim of creating the seed of a larger movement.” Kostakis said that the crowdfunded festival “illustrates that the philosophy that has emerged from free software and open content communities actually extends to many aspects of our daily lives.”

The event drew hundreds of people to twenty-four talks, nine workshops and an exhibition of many commons-based technologies and projects.  Kostakis said that CommonsFest participants are preparing a forthcoming “declaration for the protection and the strengthening of the Commons” that will soon be published in Greek and then translated into other languages.  [I will add the declaration to this blog post as an update when it is available. –DB] 

CommonsFest also featured an open art space with more than 30 video works licensed under Creative Commons licenses and the screening of a new documentary, “Knowledge as a Common:  Communities of Production and Sharing in Greece,”organized by the Cinema Group from the University of Crete.  The film’s director, Ilias Marmaras, spoke afterwards.  Both events were intended to “highlight the collaboration that we can build working together as peers” and show that “the freedoms provided by the Creative Commons licenses help us share easily and create cultural value.”

Commons projects and activism seem to be really hopping in Greece:  just last week a collaborative ebook, Πέρααπότοκράτοςκαιτηναγορά: Ηομότιμηπροοπτική, was published in Greece as a free, downloadable pdf file.  The ebook presents a vision for a commons-oriented economy and society.  Print copies will be available at the end of May, at a price defined by the reader.

I’ve busy in recent weeks promoting my new book, Think Like a Commoner:  A Short Introduction to the Life of the Commons. I’ve been getting some great responses from a variety of media outlets, interview shows, public events and readers both in the US and abroad.  (There are French and Polish editions, and other translations are currently being explored.)   

Since the focus of the book and my public outreach is to introduce the commons paradigm, long-time readers of this blog will probably be familiar with the substance of my various efforts to publicize Think Like a Commoner. For the curious, here's some recent interviews, book excerpts, reviews and public talks:

Huffington Post, “The Commons as a Rising Alternative to State and Market” (April 14).

Shareable magazine, “New Book Inspires Us to Think Like a Commoner,” interview with Jessica Conrad (April 2).   

Great Transition Initiative, Tellus Institute. Essay, “The Commons as a Template for Social Transformation” (April 2014), with comments from a selected readers -- and my responses to comments.

STIR magazine review (UK), by Danijela Dolonec (Spring 2014 issue). 

Writer’s Voice radio interview, with Francesca Rheannon (April 23), 30 minutes.

C-Realm Podcast, interview with KMO, Episode #412 (April 30), 30 minutes.

Video of my talk at Sustainability Expo, Middlebury, Vermont (March 28, 2014), 45 minutes.

Observatoire des Multinationales (France). Interview with Olivier Petitjean, « Les communs nous aident à sortir du carcan de l’économie néolibérale, à travers des alternatives concrètes » (April 20, 2014).  In French.  In English.

Basta! (France). « Les biens communs nous offrent davantage de liberté et de pouvoir que ne le font l’État et le marché » (April 23).

If you know of media venues, reviewers, activists or commoners interested in giving some visibility to Think Like a Commoner, let me know!

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.

I’ve always thought that the commons, in its attempt to achieve a holistic balance of relationships, is profoundly aesthetic and ethical.  It aspires to a certain dynamic but disciplined shapeliness.  How wonderful, then, to encounter Harris Webster’s Japanese-style poetry about the commons, inspired by his reading of The Wealth of the Commons:  A World Beyond Market and State!     

A few years ago, Webster, a retiree living in Montpelier, Vermont, heard a presentation on the commons by University of Vermont professor Gary Flomenhoft.  Then he read a number of pieces on the commons in Kosmos journal and discovered The Wealth of the Commons.

Webster has a hobby of writing tanka poems, a genre of classical Japanese poetry akin to haiku.  He had developed a taste for Japanese poetry in the course of several exchange visits with the prefecture of Tottori, Japan, as the representative of the Japan-American Society of Vermont.  Webster decided that he wanted to capture the essence of some essays in The Wealth of Commons in the succinct, austere style of tanka. (Links to the original essays are embedded in the authors' names and essay titles.)

I hope you enjoy this wonderful poetic experiment as much as I do! 

Introduction

Question: Should earth’s people share

our earth’s seven seas?

Answer: When some Somalians

lost their share of fishing grounds,

they became pirates.

Good church members are stewards

of the church commons,

its resources  and culture.

Earth’s people should be stewards

of the earth’s Commons.

Unknown Elinor Ostrom

won a Nobel Prize

for research on the Commons

throughout our wide world.

May it be well known world wide!

The Commons looks at the ‘whole.’

resources, people, and norms,

(oceans, fishermen, and rules,)

nested together.

Do markets and government?

Do people value

good soil and fresh air?

Of course , but they are not priced,

advertised or for sale.

Is that why they’re uncommon?

Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.

In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources.  He asked:  “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”

His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law:  Effective Judicial Intervention,” in the Michigan Law Review -- a piece that went on to become one of the most influential law review articles ever.

The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens' sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.

I'm thrilled to announce the publication of my new book, Think Like a Commoner:  A Short Introduction to the Life of the Commons (New Society Publishers). Unlike so many of my previous books on the commons – which explored some specific aspect of the commons (culture, copyright, ecological commons) or were aimed at academic readers – Think Like a Commoner is a general overview of the commons written for the general reader. 

It’s my attempt to reach the not-necessarily-political layperson to introduce the commons paradigm in an accessible, non-academic way, but without dumbing things down.  The book provides a succinct overview of the great diversity of commons in the world and the many pernicious enclosures now being fought.  It describes the logic, worldview and ethics of the commons, and the burgeoning international movement of commoners, especially in Europe and the global South. 

I’ve created a special website for the book – www.Think LikeACommoner.com – for those who want to keep track of the reviews and my upcoming appearances.  I’ve also included an extensive set of citations, keyed to page numbers in the book, which amount to footnotes and recommendations for further reading.  I didn’t want to burden a book intended for general readers with all the scholarly hoohah of notes, but of course some people do want to inquire further into certain aspects of the commons. Hence the web-based notes.

At the end of the book, I include a number of short references:  the statement, "The Commons, Short and Sweet"; Silke Helfrich’s chart, “The Logic of the Commons and the Market”; a select bibliography of further readings on the commons; and a listing of leading websites on the commons.

I’m grateful for the glowing endorsements that the book has received from Bill McKibben, Ralph Nader, Maude Barlow, David Korten, Michel Bauwens and Peter Barnes.  You can read those at the book website.

If you'd prefer to read the book in French or Polish, there are translations already available.  My thanks to the Charles Léopold Mayer Foundation for its support for the book (and the French translation), and to FreeLab, the translators of the Polish edition, and the publisher, the social cooperative Faktoria.

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: