Writer’s Voice, a national radio show and podcast featuring authors, recently devoted an hour to talking with me about the commons. The chief focus was on my new book co-authored with Burns Weston, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, which Cambridge University Press published in January.
Our book recovers from history many fragments of what we call “commons-based law” from such sources as Roman law, the Magna Carta and Charter of the Forest, and public trust doctrine governing natural resources. We also point to many modern-day analogues such as international treaties to manage Antarctica and space as commons. We wish to show that commons-based law is in fact a long and serious legal tradition – but one that has also been quite vulnerable, particularly over the past two centuries as market-oriented priorities have eclipsed the commons. 
Burns Weston and I argue that the right to a clean and healthy environment, and to access to nature for subsistence (as opposed to for profit-making market purposes), should be recognized as a human right. The right to meet one’s everyday household needs – by responsibly managing forests, pasture, orchards and wild game as a commons – was recognized by the Charter of the Forest, adopted by King Henry III, the son of King John, in 1217.
This right was essentially a right to survive because commoners depended on the forest for food, fuel, economic security and other basic needs. Such precedents ought to inform our discussions today, when the rights of investors and markets in effect override any human right to survival (consider the many free trade treaties that override democratic sovereignty, ecological protections and local control).
Weston and I wish to recognize the “right to common” as a human and legal right. One advantage is that commons, once established, are more likely to actualize and guarantee this right in substance than reliance on national courts and international treaty organizations alone. These traditional bodies, which have converged into an allied “market/state duopoly,” have a shared, vested interest in promoting market growth and corporate profitability. Because full recognition and enforcement of human rights can be embarrassing or economically costly to national governments and large corporations, governments and international courts are often reluctant to give human rights substantive force.
Green Governance also proposes a rough framework for imagining a new architecture of law and policy to support the ecological commons. The International Association for the Study of the Commons has estimated that some two billion people around the world depend upon natural resource commons – forests, fisheries, irrigation water, farmland, game – to meet their daily needs. Yet legal recognition and support for these commons are minimal to nonexistent.
We think that it’s time to formally recognize and support the countless commons that now exist. We need to enact new laws that facilitate the formation and maintenance of commons. This would not only be empowering to commoners, it would ratify ecological practices that could help reduce carbon emissions (vs. industrial farming practices or conventional market “development”).
Law should support such specific types of commons as land trusts, cooperatives, new types of partnerships between the state and commons, and the use of online peer networks to monitor and manage natural resources. Another commons-based form that deserves to be expanded and applied in new ways is the stakeholder trust. The classic embodiment is the Alaska Permanent Fund, which gives Alaskan residents a share of royalties from oil extraction. One can imagine similar trusts to control and limit the market exploitation of the atmosphere, biodiversity, genes and other elements of our common wealth. (Peter Barnes will explore these themes in a forthcoming book.)
You can read more about Green Governance at The Commons Law Project website. For now, the book is only available as a rather expensive library-edition hardcover, but a paperback version should be available early next year.
Francesca Rheannon, the incisive, progressive-minded host of Writer’s Voice, decided to combine her recent interview with me, with excerpts from my 2010 interview with her about my previous book,Viral Spiral: How the Commoners Built a Digital Republic of Their Own (New Press). So, a whole hour of talk about the commons! You can stream the show here and download it here. The show’s webpage on the interview can be found here.
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