David Bollier's blog

The coming together of commons-oriented projects seems to be intensifying.  Even as the Le Temps des Communes festival in dozens of Francophone cities convenes thousands of commoners, an organizing meeting for a Chicago Chamber of Commons in planned for Saturday, October 10. (You can register for the event here.)

This idea has been kicking around for a while – see this 2013 blog post  – but it seems that the folks in Chicago are serious about making it work. They want to foster deeper collaboration among the many groups focused on shared ownership, the collaborative economy, co-operatives and other mutual-benefit initiatives. The organizers say they want to “connect social entrepreneurs, L3C's, B-Corps and other enterprises focused on triple bottom line, sharing-economy approaches to commerce and community development.” People involved with economic transformation, environmental protection, community life and culture are also invited.

The day will start with a consensus workshop that will try to come up with a shared definition of the commons. This will be followed with discussions for startup plans for a Chicago Commons, which organizers hope will be the first of many Chambers of Commons across the nation and globe.

In May, Huffington Post writer Sally Duros wrote a piece about the envisioned Chamber of Commerce in which she quoted Michel Bauwens, founder of the P2P Foundation: 

"The old way is this. Here's a problem. We need resources to solve that problem. We create a hierarchy to direct resources at the problem," Bauwens says.

"Here's another way. There are enough people in the world with time, skills and energy who would be willing to work to solve that problem. The new solution is to create a commons and a platform that allows people to self-aggregate and collaborate to solve that problem."

Here's hoping that the organizing meeting is productive!

At the upcoming COP Summit in Paris (the UN Framework Convention on Climate Change), no one expects the world’s governments to make serious headway against global climate change. Neoliberal-obsessed governments are more concerned with propping up collapsing capitalist structures than in reducing carbon emissions (which have doubled over the past generation).  Corporations are more intent on preserving their market share and investors in preserving their net worth than in entertaining an environmentally benign economic paradigm shift.  We can be sure, following COP21, however, that world leaders will declare the event a success and let loose their own copious emissions of PR blather.

Let’s face it – we’re more or less on our own.  The impetus for change has to come from the bottom and the local. 

Which brings me to the inspirational work of POC21 – Proof of Concept 21 – which stands for “a proof of concept that the future we need can be built with our own hands.” For five weeks – August 15 to September 20 – more than 100 makers, designers, engineers, scientists and geeks converged on Château de Millemont, an ancient castle near Paris.  Their mission:  to work together in developing prototype machines that could radically reduce our dependence on carbon fuels.

The idea of POC21 is to invent inexpensive, modular household devices, farm tools, energy systems and other appropriate technologies that can be replicated cheaply, repaired easily and copied and shared by anyone. “Imagine a new breed of open source products available in your neighborhood,” POC organizers have announced. “This is our vision.”

Le Temps des Communes, surely the largest festival of the commons ever, is about to get underway! The festival is not just a single event in a single place, but a series of more than 250 self-organized events to be held over the course of fifteen days in France, Belgium, Switzerland, Canada (Quebec) and several Francophone countries in west Africa. 

From October 5 to 18, there will be symposia, workshops, lectures and participatory events on all sorts of commons-related topics.  There will be events to showcase free and open source software, community gardens, participatory mapping projects, seed-sharing, open scientific knowledge, renewable energy co-operatives, land trusts and even a Creative Commons-licensed musical. The hundreds of festival events will help introduce the commons to the general public and demonstrate to current commoners just how large, diverse and exciting the world of collaborative provisioning truly is.

In Lyon, there will be a roundtable about making the city a commons.  In Brussels, there will be an Open Source Festival.  In Brest, a bike tour of shared gardens.  In Paris, nearly thirty different events are planned.

I wish that I could attend the “law and the commons” discussion that will feature Stefano Rodotà, the Italian law scholar, politician and human rights advocate who has pioneered new legal principles for the commons.  Paris will also host “A Day in the Commons” on Île-de-France, with workshop, a meal and planning for the future.

There is one notable aspect to the Volkswagen emission-cheating scandal that few commentators have mentioned:  It would not have happened if the software for the pollution-control equipment had been open source. 

Volkswagen knew it could defraud consumers and deceive regulators precisely because its software was closed, proprietary and legally protected from outside scrutiny. Hardly anyone could readily check to see if the software was performing as claimed.    

Sure, dogged investigators could laboriously compare actual car emissions to emissions in artificial regulatory tests. That’s essentially what broke open the Volkswagen scandal. But that is an expensive and problematic way to identify cheaters. 

The larger question is why should a piece of software that has enormous public health and environmental implications be utterly impenetrable in the first place?  A locked box invites lawless, unaccountable and sloppy corporate behavior. It assures that hardly anyone can see what’s going on. Volkswagen exploited the cover of darkness for all that it could.

Peter Barnes, an old colleague of mine who writes about the commons from an economic perspective, recently published an essay about “common wealth trusts” as a structure to be used in transitioning to a new economy.  The essay, on the Great Transition Initiative website, recapitulates and extends an idea that Barnes has written about in the past – how to use stakeholder trusts to manage common assets (minerals, forests, electromagnetic spectrum, groundwater, etc.) while providing dividends to all citizens who are also co-owners of those assets. 

Barnes argues that common wealth trusts “address the two greatest flaws in contemporary capitalism—its relentless destruction of nature and widening of inequality—while still keeping the benefits that markets provide.”  Trusts can work because they can provide clear (collective) property rights and formal management systems around resources that are invisible to markets and in many instances threatened with privatization.  He writes:

…..Markets currently do not acknowledge such wealth or recognize its value, much less its common ownership. Because of this enormous market failure, private businesses take, use, or pollute common wealth without limit, generally without paying its right­ful owners for the pri­vi­lege. By so doing, private businesses and their narrow group of owners capture much of the value added by common wealth, exacerbating inequality. If businesses had to pay for the use of common wealth, these things would not happen, or at least would happen much less. What are now unpriced exter­nal­i­ties or straight-out thefts would become costs for businesses that could generate income for everyone.

“Organizing common wealth so that markets respect its co-inheritors and co-beneficiaries requires the creation of common wealth trusts, legally accountable to future generations,” Barnes argues. “These trusts would have authority to limit usage of threatened ecosystems, charge for the use of public resources, and pay per capita dividends. Designing and creating a suite of such trusts would counterbalance profit-seeking activity, slow the destruction of nature, and reduce inequality.”

The relationship between law and the commons is very much on my mind these days.  I recently posted a four-part serialization of my strategy memo, "Reinventing Law for the Commons."  The following public talk, which I gave at the Heinrich Boell Foundation in Berlin on September 8, is a kind of companion piece.  The theme: this year's celebration of the 800th anniversary of Magna Carta and its significance for commoners today.

A video version of my talk can be seen here -- along with a talk on P2P developments by my colleague Michel Bauwens, and general discussion with the audience moderated by Silke Helfrich.

Thank you for inviting me to speak tonight about the 800th anniversary of the Magna Carta and the significance of law for the commons.  It’s pretty amazing that anyone is still celebrating something that happened eight centuries ago!   Besides our memory of this event, I think it is so interesting what we have chosen to remember about this history, and what we have forgotten.

This anniversary is essentially about the signing of peace treaty on the fields of Runnymede, England, in 1215.  The treaty settled a bloody civil war between the much-despised King John and his rebellious barons eight centuries ago.  What was intended as an armistice was soon regarded as a larger canonical statement about the proper structure of governance.  Amidst a lot of archaic language about medieval ways of life, Magna Carta is now seen as a landmark statement about the limited powers of the sovereign, and the rights and liberties of ordinary people.

The King’s acceptance of Magna Carta after a long civil war seems unbelievably distant and almost forgettable.  How could it have anything to do with us moderns?  I think its durability and resonance have to do with our wariness about concentrated power, especially of the sovereign.  We like to remind ourselves that the authority of the sovereign is restrained by the rule of law, and that this represents a new and civilizing moment in human history.  We love to identify with the underdog and declare that even kings must respect something transcendent and universal called “law,” which is said to protect individual rights and liberties. 

In this spirit, the American Bar Association celebrated Magna Carta in 1957 by erecting a granite memorial at Runnymede bearing the words “Freedom Under Law.”  On grand public occasions – especially this year – judges, politicians, law scholars and distinguished gray eminences like to congregate and declare how constitutional government and representative democracy are continuing to uphold the principles of Magna Carta.  More about that in a minute.

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.

Today's post is the third in a four-part series derived from my strategy memo, "Reinventing Law for the Commons."  This excerpt continues with Part II, "Legal Innovations in Beating the Bounds," with "clusters" #5 through #9. The collection of entries here are now posted on a Commons for the Law wiki hosted by the Commons Transition website.

5.  Co-operative Law

There are a number of legal and organizational innovations transforming co-operatives these days, making them moreoriented to commoning and the common good than just marketplace success. However, these innovations are geographically dispersed and not necessarily widely known, even within the co-operative movement.  One of the most notable new organizational forms is the multistakeholder co-operative (or “social and solidarity cooperative”), which has been rapidly proliferating in recent years.  It got its start in Italy in 1963 when families in Italy joined forces with paid care workers to develop co-operatives to provide social care, healthcare and educational services. This new paradigm collectivizes and centralizes basic overhead services (administration, personnel, accounting, etc.) and in this way empowers smaller social economy ventures (similar to “omni-commons,” see section #8 below). 

In a sense, multistakeholder co-ops regularize governance for co-stewardship of commons spaces and moves away from rigid bureaucratic methods that increasingly don’t work.[1]  Multistakeholder co-ops now employ more than 360,000 in paid jobs, including the disabled, the formerly imprisoned and marginalized people, and more than 40,000 volunteers.  Social co-operatives have spread to all regions of Italy and today number more than 14,000, making it a significant sector of the Italian economy that is neither market- nor state-based.  Today there are multi-stakeholder co-operative movements in Quebec in Canada and in a wide number of countries in Europe including France, Spain, Poland, Hungary, Finland and Greece[2].

Below, a continuation of yesterday's post from the strategy memo, "Reinventing Law for the Commons," Part II of the four-part piece.

II.  Legal Innovations in Beating the Bounds:  Nine Promising Fields of Action 

Part II surveys the enormous amount of legal innovation going on in various commons-related fields of action.  The point of this section is to identify specific initiatives that are trying to transform the legal paradigm or carve out new “protected zones” of enforceable rights within existing legal frameworks.  I have identified nine major “clusters” of interesting experimentation and ferment:

1.  Indigenous Commons   

2.  Subsistence Commons in the Global South       

3.  Digital Commons       

4.  Stakeholder Trusts

5.  Co-operative Law 

6.  Urban Commons  

7.  Localism            

8.  New Organizational Forms     

9.  Re-imagining State Policy to Empower Commons   

Today's post focuses on the first four "clusters"; tomorrow's deals with #5 through #9.  And the final day will deal with Part III:  The Strategic Value of Developing Law for the Commons, and Part IV:  Next Steps.

The list of clusters and examples in Part II is not comprehensive.  It is merely a first attempt to assemble the fragments of commons-based legal innovation into a new mosaic that makes key, unifying themes more visible.  (I invite readers of this memo to inform me of any worthy additions by contacting me at david/at/bollier.org.)  Some examples may belong in two or more clusters, which I’ve tried to indicate with cross-references.  In Part III, I will reflect on the political and philosophical implications of the examples of Part II, followed by a discussion in Part IV of practical steps that might be taken to consolidate and extend Law for the Commons as a coherent body of legal activism.

Reinventing Law for the Commons, Part I

One of the most devastating and recurring problems that virtually every commons faces is market enclosure – the privatization and marketization of shared resources by businesses, investors and speculators, often in collusion with government. What's really remarkable is that legislatures and courts so often declare that enclosures are legal because they supposedly contribute to economic growth, progress and freedom, etc.

All of this got me to thinking:  What would it look like if commoners could invent their own types of law, consistent with state law, to reliably protect their commons?  What if there were a more rigorous Law for the Commons?

There are in fact many examples from history.  The most notable ones may be the centuries-old public trust doctrine for water and other natural resources, and the Charter of the Forest, the forgotten part of Magna Carta that guarantees commoners’ rights. 

In our time, the General Public License for software and the Creative Commons licenses for content are masterstrokes of legal ingenuity that protect shared wealth.  Commoners can be confident that no one can legally appropriate their pooled resources, whether they are code, writing, images or music.

As I looked into this topic further, I discovered that there is in fact a wealth of legal innovation now underway in many sectors of the commons world.  There are clever legal hacks to protect indigenous peoples’ agroecological knowledge and traditions.  There are new variations on co-operative law and new legal initiatives to protect local communities’ self-determination.  There are stakeholder trusts and new organizational forms for commoning.

With support from the Heinrich Boell Foundation, I researched and wrote a lengthy four-part strategy memorandum outlining more than sixty examples of legal innovation for the commons.  The memo also includes a rationale for launching a new field of inquiry and activism, Law for the Commons.

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