This is the fourth of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press. The essays originally appeared on CSRWire. I am re-posting them here to introduce the paperback edition, which was recently released.

The overriding challenge for our time – as outlined in our three previous CSRwire essays – is for human societies to develop new ways of interacting with nature and organizing our economic and social lives. It’s imperative that we rein in the mindless exploitation of fragile natural systems upon which human civilization depends.

The largest, most catastrophic problem, of course, is climate change, but each of the “smaller” ecological challenges we face – loss of biodiversity, soil desertification, collapsing coral reefs and more – stem from the same general problem: a mythopoetic vision that human progress must be achieved through material consumption and the ceaseless expansion of markets.

State/Market Solutions Doomed to Failure

While most people look to the State or Market for solutions, we believe that many of these efforts are doomed to failure or destined to deliver disappointing results. The State/Market duopoly – the deep alliance between large corporations, politicians, government agencies and international treaty organizations – is simply too committed to economic growth and market individualism to entertain any other policy approaches.

The political project of the past forty years has been to tinker around the edges of this dominant paradigm with feckless regulatory programs that do not really address the core problems, and indeed, typically legalize boats-dockedexisting practices.

Solution:  Stewardship of Shared Resources

So what might be done?

We believe that one of the most compelling, long-term strategies for dealing with the structural causes of our many ecological crises is to create and recognize legally, alternative systems of provisioning and governance. Fortunately, such an alternative general paradigm already exists.

It’s called the commons.

This is the third of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press.  The essays originally appeared on CSRWire.  I am re-posting them here to introduce the paperback edition, which was recently released.

 

In the previous two essays in this series, we outlined our approach to Green Governance as a new model or paradigm for how we can relate to the natural environment. We also stressed how “Vernacular Law” – a kind of socially based “micro-law” that evolves through commons activity (“commoning”) – can establish legitimacy and trust in official state law, and thereby unleash new sorts of grassroots innovation in environmental stewardship.

In this essay, we explore another major dimension of the large shift we are proposing: how human rights can help propel a shift to Green Governance and thereafter help administer such governance once achieved.

Nothing is more basic to life than having sustainable access to food, clean air and water, and other resources that ecosystems provide. Surely a clean and healthy environment upon which life itself depends should be recognized as a fundamental human right.

This is the second of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  The essays originally appeared on CSRWire.

 

Is it possible to solve our many environmental problems through ingenious interventions by government and markets alone? Not likely. Apart from calls for eco-minded behavior (recycle your cans, insulate your house), ordinary citizens have been more or less exiled from environmental policymaking.

The big oil, coal and nuclear power companies have easy access to the President and Congress and expert lawyers and scientists have privileged seats at the table. But opponents of, say, the Keystone Pipeline are mostly ignored unless they get arrested for protesting outside of the White House.

A New Kind of Law to Underpin the Commons

That’s why we believe it’s important to talk about a “new” category of law that has little recognition among legislators and regulators, judges and lobbyists. We call it “Vernacular Law.” “Vernacular” is a term that the dissident sociologist Ivan Illich used to describe the informal, everyday spaces in people’s lives where they negotiate their own rules and devise their own norms and practices.

In our last essay, we introduced the idea of commons- and rights-based governance for natural ecosystems. We turn now to Vernacular Law because green-pin-cushionits matrix of socially negotiated values, principles and rules are what make a commons work.

Vernacular Law originates in the informal, unofficial zones of society – the cafes and barber shops, Main Street and schools, our parks and social networking websites. What emerges in these zones is a shared wisdom and a source of moral legitimacy and authority. Colonial powers frequently used their formal law to forcibly repress the use of local languages so that their controlling mother tongue could prevail.

Professor Burns Weston and I recently published a series of six essays on CSRWire (CSR = “Corporate Social Responsibility”) that were derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  

The book – an outgrowth of the Commons Law Project -- is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment. Green Governance opens the door to a new set of solutions by proposing new types of environmental protection based on broader notions of economics and human rights and on commons-based governance. At the heart of the book is a new architecture of environmental law and public policy that is theoretically innovative, but also quite practical.

The paperback edition was recently released, making it available to a much larger readership.  To introduce the book to people who may have missed it the first time around, I am posting the original six CSRWire essays by Burns and me over the course of the next week.  I hope you enjoy them!  -- David

 

At least since Rachel Carson’s Silent Spring, we have known about humankind’s squandering of nonrenewable resources, its careless disregard of precious life species, and its overall contamination and degradation of delicate ecosystems. Simply put, the State and Market, in pursuit of commercial development and profit, have failed to internalize the environmental and social costs of their pursuits. They have neglected to take measures to preserve or reproduce the preconditions of capitalist production – a crisis now symbolized by the deterioration of the planet’s atmosphere.

Despite the scope of the challenges facing us, there are credible pathways forward. In our recent book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, we propose a new template of effective and just environmental protection based on the new/old paradigm of the commons and an enlarged understanding of human rights. We call it “green governance.” It is based on a reconceptualization of the human right to a clean and healthy environment and the modern rediscovery of the age-old paradigm of the commons.

Jun
10

Think LIke a Commoner

Geneva, Switzerland, conference at La Maison D'Environnement, 12:15 pm. More information here.

Eben Moglen: "Snowden and the Future"

The ongoing Snowden revelations about NSA surveillance have all sorts of implications for the rule of law, constitutional democracy, geopolitical alignments, human rights and much else.  The disclosures deserve our closest attention for these reasons alone.  But what do these revelations have to do with the commons?

If we regard the act of commoning as a genre of citizenship – acts of voluntary association and action that are critical to human freedom and democracy – we can see that snooping by both the NSA and its corporate brethren are profoundly hostile to the future of the commons.  They violate some fundamental notions of human rights, civil freedoms and the ability of individuals to protect their privacy and thus their sovereignty.

If the market/state apparatus can digitally monitor our reading habits and telephone calls, email correspondence and purchases, physical movements and much else, then it has effectively snuffed out the sovereignty of a free people. The barrage of the successive Snowden disclosures has been followed by a relentless government propaganda war, cable TV denunciations and even attacks on Greenwald by the liberal nomenklatura (Michael Kinsley, George Packer). It’s as if "respectable opinion" did not care to note or defend the elemental human freedoms that a functioning democracy requires.

It was such a pleasure therefore to (belatedly) encounter a series of four lectures delivered last fall by Eben Moglen, a law scholar and historian at Columbia Law School, founder of the Software Freedom Law Center, and former general counsel of the Free Software Foundation.  The four talks -- "Snowden and the Future" -- offer one of the most eloquent and historically informed critiques of the Snowden revelations and their implications for freedom, democracy and – I would add – the capacity of people to common.

Pixelache Helsinki 2014

It’s probably too late for most of us to attend, but this Friday through Sunday, June 6-8, Pixelache Helsinki 2014 will host an international two-day trans-disciplinary event on “The Commons.”   

Apart from keynote lectures planned in advance, the agenda of activities of activities at Camp Pixelache – especially the participatory workshops – will be an "unconference" -- i.e., determined by the attendees themselves at the beginning of the event. Attendance is free of charge.

The event will be held on Vartiosaari, a nature island surrounded by eastern suburbs of Helsinki.  The organizers note that the island “is currently under-threat of full-scale residential development by Helsinki City Planning Department, and there is a grassroots campaign to protect its particular qualities, in which artists & cultural practitioners are involved. We are hoping that the occasion of Camp Pixelache can also provide a discussion forum around Helsinki-Commons issues.”

First of all, I love the logo for Camp Pixcelache (see below).  Striking!

What does enclosure feel like from the inside, as a lived experience, as a community is forced to abandon its “old ways” and adopt the new worldview of Progress and Profit?  British author Jim Crace’s novel, Harvest, a finalist for the Man Booker Prize in 2013, provides a beautiful, dark and tragic story of the first steps of the “modernization” of a preindustrial English village.

The story focuses on a hamlet that is suddenly upended when the kindly lord of the settlement, Master Kent, discovers that his benign feudal control of a remote patch of farmland and forest has been lost to his scheming, cold-hearted cousin, Edmund Jordan.  Jordan is a proto-capitalist who has a secret plan to evict everyone and turn their fields into pastures for sheep.  He plans to become rich producing wool for the flourishing export market.  But Jordan can’t simply announce his planned dispossession of land lest it provoke resistance.  He realizes that he must act with stealth and subterfuge to take possession of the land and eradicate the community, its values and its traditions.

The story is essentially a tale of what happens when a capitalist order seeks to supplant a stable and coherent community.  But this states the narrative too crudely because the book is a gorgeously written, richly imagined account of the village, without even a hint of the ideological.  Told through the eyes of a character who came to the village twelve years earlier, the story doesn’t once mention the words “enclosure,” “capital” or “Marx.”  (Indeed, the Wall Street Journal’s reviewer praises the book for “brilliantly suggest[ing] the loamy, lyric glories of rustic English language and life.”)

Harvest depicts the sensuous experiences of a village community wresting its food from nature, but with relative peace and happiness.  "Our great task each and every year is to defend ourselves against hunger and defeat with implements and tools. The clamour deafens us. But that is how we have to live our lives," the narrator tells us.  The book also shows how easily this world is shattered by a brutal outsider who uses fear and social manipulation to rip apart a community in order to install a new regime of efficiency, progress and personal gain.

We have so internalized the logic of neoliberal economics and modernity, even those of us who would like to think otherwise, that we don’t really appreciate how deeply our minds have been colonized.  It is easy to see homo economicus as silly.  Certainly we are not selfish, utility-maximizing rationalists, not us!  And yet, the proper role of our emotions and affect in imagining a new order remains a murky topic. 

That’s why I was excited to run across a fascinating paper by Neera M. Singh, an academic who studies forestry at the University of Toronto.  Her paper, “The Affective Labor of Growing Forests and the Becoming of Environmental Subjects” focuses on “rethinking environmentality” in the Odisha region of India.  (Unfortunately, the article, published in Geoforum (vol. 47, pp. 189-198, in 2013) is behind a paywall.) 

How do people become “environmental subjects” – that is, people who are willing to apply their subjective human talents, imagination and commitments and become stewards of some element of nature?

Singh wanted to investigate why villagers were willing to regenerate degraded state-owned forests through community-based forest conservation efforts.  She found that “affective labor” is critical in managing a forest.  The term comes from Antonio Negri and Michael Hardt, who use it to describe the role that reciprocity, empathy and affect play in shaping human behavior and action. Indeed, other people’s affect influences what kind of “self” we construct for ourselves. 

This whole topic is important because standard economics has its own crudely reductionist idea of who human beings are.  We are “rational, self-interested” economic actors, of course, and most public policy is based on this (erroneous, limited) notion.  Most economists frankly have no interest in exploring how people come to formulate their “self-interest.”  They simply take those interests as given. 

But what if participating in commons produced a very different sort of human perception and subjectivity, and indeed, produced human beings as self-aware subjects/agents?  What if this process could be shown to be essential in integrating human culture with a specific ecological landscape?

Fixing the Law’s Bias Against Sharing

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.  

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