The Strategic Value of Developing Law for the Commons, Final Parts

Below are the final sections of the memo, "Reinventing Law for the Commons," whose three earlier parts were excerpted over the past several days.  The wiki of examples in Part II can be found on the Commons Transition website, and the final document can be downloaded here.

III. The Strategic Value of Developing Law for the Commons

Some Legal and Philosophical Reflections

Having surveyed a rather remarkable array of commons-based law initiatives, it is worth pausing for a moment to reflect on their significance for law, governance and politics.  These innovations in commons-based law challenge the tacit premise that the best, most natural system of governance and social order is the market/state, as dominated by transnational corporations and capital.  Law for the Commons attempts to open up new spaces through which commoners can have greater freedom and autonomy to devise governance forms of their own making, conBsistent with overarching principles of democracy and human rights.  It is perhaps risky to stipulate a specific set of principles that a Law for the Commons seeks to uphold, but there are clearly affinities among the diverse examples described above.  In different ways, commons projects are attempting to use law to achieve these purposes:

  • Provide structure for internal, participatory, bottom-up deliberation and governance (e.g., omni-commons, subsistence commons, Loomio, DemocracyOS);
  • Protect shared assets that are threatened by market enclosure (e.g., stakeholder trusts, blockchain ledger, community charters);
  • Provide a legal structure and identity to commons so that they can be legally cognizable to the state or international law (e.g., omni-commons, biocultural protocols for indigenous peoples, Terms of Service for peer production);
  • Provide commoners with access to state law to enforce their practices and norms (e.g., General Public License, Creative Commons licenses, community land trusts);
  • Secure state authority for commoning by modifying or extending state law through legal “work-arounds” (e.g., copyright-based licenses, stakeholder trusts, multistakeholder co-operatives, Bologna Regulation for urban commons);
  • Openly challenge recognized boundaries of law as a way to provoke a political debate or validate a particular commons (e.g., community ordinances; biocultural protocols; the commons-based foundation for Teatro Valle in Rome); and
  • Use digital technologies to create superior functional alternatives to state law (e.g., open value networks, smart contracts, the blockchain ledger).

The very idea of Law for the Commons constitutes a profound philosophical challenge to the liberal capitalist polity.  After all, many commons seek to enact different ideals of human flourishing and governance than the formal, universal and rational/utilitarian ones of the modern liberal state and neoliberal economics.  In this sense, Law for the Commons as it expands could help propel a paradigm shift because it asserts a different theory of value than that of conventional economics and the (formally) neutral apparatus of the liberal state.  Law for the Commons generally rejects capital accumulation and market exchange as the default engine of social and economic progress, and in this sense proposes a very different vision of human development.

To put this another way:  Commons-based law is generally premised on some very different ontological premises of what human beings are and how they (could and should) relate to each other, the state and the Earth.  Hence the frisson that tends to erupt when commoners try to enshrine these different ontological premises in state law.  Such acts amount to a philosophical challenge.  They breach our cultural narratives about the proper roles of markets and government, and our faith in technology-as-progress and economic growth.  No wonder the commons paradigm does not readily fit into the familiar left/right ideological spectrum!  It implicitly rejects the prevailing framework for conceptualizing political viewpoints. 

The commons paradigm rejects, for example, the ideal of homo economicus -- that humans are rational, utility-maximizing, self-interested materialists – which is the basis for so much economic and social policy.  It also rejects the liberal faith that government can reliably and fairly apply universal principles to diverse local circumstances and that the formal guarantees of treating everyone as equal juridical persons is sufficient (even as the state grants legal recognition to fictional persons known as corporations!)

Yet neither does Law for the Commons reject liberal principles outright. A Law for the Commons is functionally compatible with the liberal polity in many respects because it admires and depends upon many core liberal principles such as human rights, individual conscience and initiative, transparency and democratic participation.  It’s just that the Law for the Commons seeks to actualize these principles in different ways than the modern industrial market/state, and it wishes to do so more effectively and equitably than the market/state system seems capable of doing. 

The commons also aspires toenlarge many liberal principles by, for example, broadening the definitions of human rights and human flourishing, prioritizing the inalienability of natural resources, and more effectively addressing the complexities of local circumstances and natural ecosystems.  In many instances, the Law for the Commons seeks to create new juridical categories such as “common assets” and “rights of commoning,” which refer to the pertinence of social relationships, custom and collective moral authority that have no standing in conventional market/state law.  It is fascinating to see how many fruitful hybrids are emerging out of some conflicts between commoners and mainstream law and politics.[1]

At a time when the systemic nature of our economic and political crises are widely acknowledged, the Law for the Commons is helpful for precisely these reasons:  It can give us a new vocabulary to help us imagine and build a different legal foundation for new types of institutions, provisioning systems and social relationships.  It provides a serious philosophical backbone for envisioning new systems of law, governance and politics.  And withal, the Law for the Commons does not aspire to be a coercive, external imposition of governance, but rather to enable self-organized commoning as a living, evolving process.

The Political Value of Developing a Law for the Commons

A formative experience for me in my twenties was when corporate America deliberately invented the discipline of cost-benefit analysis as an expert discourse to challenge health, safety and environmental regulation in the late 1970s.  This audacious gambit had the intended effect of neutralizing the impact of many landmark statutes enacted in the late 1960s and 1970s, in effect rewriting those laws over time.  The lesson that I learned is that discourse is ultimately law – and that the formal apparatus of state law is vulnerable to any discourse that can sufficiently insinuate itself into the system and its practitioners. 

Conversely, a failure to develop an alternative discourse means that one must attempt to argue one’s own values and interests using the alien language and framings of one’s adversary.  The ethical and political limits of this approach can be seen in the spectacle of trying to protect nature by quantifying its cash value (“nature’s services”) or trying to protect human life by monetizing its notional cash value (cost-benefit analysis). 

Law for the Commons, then, is valuable because it asserts a very different ethical and functional logic through a wide variety of thematically related projects and legal initiatives.  Moreover, this is not a matter of “mere theory,” but of actual, working projects with active social constituencies.  I believe the discourse of the Law for the Commons could serve as a shared vehicle of “cultural equity” for hundreds of initiatives that would otherwise be seen as isolated and separate.     

Bringing key players together from each of the nine clusters above could produce important synergies for activism and legal work.  For example, imagine if lawyers dealing with free and open source software were to actively collaborate with the people who developed the Open Source Seed Initiative.  Both are trying to use intellectual property laws to protect bodies of community-generated wealth.  Or imagine if the lawyers who have developed biocultural protocols of indigenous peoples were to work closely with people from the community charters movement.  Both are trying to find practical legal tools to defend local self-determination and customary ways of life.  Or imagine if the US Forest Service and other parties who forged a new scheme for commons-based management of national forest land in Oregon, were to consult with Italian cities that are using the Bologna Regulation to host new types of public/commons partnerships.

Sometimes the convergence is new territory to both parties:  digital commons trying to protect their shared resources are starting to engage with the co-operative movement in trying to develop new organizational models for cooperatives – “open co-operatives.” One can imagine many other productive hybrids arising if commoners from different realms were to be brought together.

More than a rich opportunity, these varied and rudimentary commons-law initiatives face real dangers if they are not brought together.  If they are not consolidated and coordinated into a new and larger effort, it is quite likely that many of them will quietly disappear or be absorbed or co-opted into the prevailing neoliberal order.  Some will be conscripted into the “sharing economy,” in the manner of Jeremy Rifkin’s neo-capitalist “collaborative commons,”[2] and others will simply not be able to attract the funding, collegiality or critical attention to stay afloat.  I think the examples in the nine clusters described above provide a rich opportunity for orchestrating a new paradigm of law, politics, governance, production and culture, all in the same stroke. 

IV.  Next Steps

But how might this be achieved?  Developing a new Law for the Commons is obviously a significant challenge that is more of an open-ended, long-term adventure than a short, bounded project.  Exploratory efforts to develop a Law for the Commons could take many forms depending upon the resources and institutional partners that could be secured – and thus the ambition and speed of work.  However, some basic needs to be addressed include:

  • convening key thinkers and activists;
  • clarifying strategic priorities for types of law to be developed further, and how;
  • securing resources for a particular cluster to develop new initiatives;
  • cross-cluster dialogues to expand the network of collaboration and shared legal insight;
  • liaison with conventional legal scholarship, schools and policymakers; and
  • collaboration with on-the-ground commoners in need of creative legal solutions.

Any number of projects could help advance these goals – and certainly new goals could emerge rapidly if law-oriented commoners were to convene and begin working together.  For now, I think it would be particularly useful to consider the following steps as part of a larger (to-be-discussed) strategy:

Host strategy workshops.  The Commons Strategies Group has found that Deep Dive workshops are a particularly effective way of convening key players, developing a shared vision, nurturing collegial relationships and imagining practical new projects.  They create the core of a new social and activist “ecosystem” for advancing a new vision.

Host conferences.  Larger gatherings such as conferences can be helpful, too, but at this early stage it is probably more important to get a critical mass of key players than to just have an open event.  The point is to help consolidate and clarify the shared vision and agenda, and to knit together influential and thoughtful participants.

Convene key players in each cluster.  Each of the clusters that I describe above deserves venues and opportunities to take stock of its activities and strategic opportunities, and to develop itself as a theater of action.

Commission action-oriented legal treatises.  For many fields, it would be particularly helpful to have sophisticated legal treatises take stock of the state of commons-based law, and to build bridges among legal scholarship, politics and policymaking, and activist commoners and projects.

Enter into partnerships with forward-thinking law schools and colleges.  A number of law schools, colleges and academic centers may be interested in serving as a host, convener and “network supernode” for advancing Law for the Commons.  Some institutions that come to mind:  Vermont Law School (US), Schumacher College (UK), the Political and Economic Research Institute at UMass Amherst (US), economist Benjamin Coriat’s department at the University of Paris (France).  Individual law scholars may also be interested in playing such a role.

Brief funders.  There may be a set of funders, especially those associated with EDGE Funders Alliance (US) and the newly formed EDGE Europe, who may be interested in exploring these ideas further.  The most promising funders are likely to be smaller and family-managed philanthropies because I have found that the larger institutional philanthropies tend to be slow-moving, risk-averse and excessively concerned about their peer standing.

Assemble a consortium of law-oriented commoners to choose promising projects and serve as a re-grantor.  Since many funders may not have a confident grasp of many on-the-ground developments or strategic priorities, it may be useful to assemble a consortium of recognized law-oriented commoners to help identify the most promising new projects, and to help those projects connect with funding, allies and other forms of support.  The consortium could even serve as a re-grantor of funds from foundations.

Establish a new center or clearinghouse – perhaps within an existing organization – to catalyze new Law for the Commons projects.  Many factors could influence how such a center would be organized and funded, but it could be very catalytic if there were a small center whose primary mission were to keep track of relevant developments, identify promising opportunities, and to actively help these developments move forward.  Possible homes for such work (if they were interested) might include the Commons Transition Plan, the Sustainable Economics Law Center or the Heinrich Boell Foundation.            

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I consider this strategy memo as the catalyst for a new discussion – and, I hope, action.  The vision is obviously too big for any one of us, or small group of us, to handle alone.  But the push of a few dominos could start a chain-reaction of much greater scale – and as my review of commons-based legal initiatives suggests, there are a quite a few of us engaged in law-related commons advocacy.  Can we take expand this work to a deeper, richer level?

[1]  Anne Salmond documents some in her study of the Maori and their clashes with the New Zealand state (white New Zealanders adopting the stewardship traditions of Maori), in Patterns of Commoning; and Mary Wood describes novel collaborations between Native Americans and white leaders of land trusts, in Nature’s Trust.

[2] Jeremy Rifkin, The Zero Marginal Cost Society:  The Internet of Things, the Collaborative Commons andf the Eclipse of Capitalism Palgrave Macmillan, 2014).