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.

The Enclosures of Appalachian Commons

The recent industrial disaster in West Virginia, which saw the leakage of vast quantities of toxic chemicals into the river and drinking water supplies, prompted Grant Mincy of East Tennessee to reflect on the enclosure of countless commons in the Appalachia region of the US.  His piece in Counterpunch, “Reclaiming the Commons in Appalachia,” caught my eye because it pointed to the extreme inequalities, suffering and dispossession that have occurred in Appalachia as corporate control has gotten more concentrated.  A sudden – the huge spill of chemicals into the river – then shines a bright spotlight on the situation.

Mincy notes how the “extractive resource industry” – chiefly coal companies – have used their property rights and political influence to enclose the commons of Appalachia:

The use of eminent domain and compulsory pooling has robbed communities of their cultural and natural heritage.  Capital is the authority of the Appalachian coalfields, and has created systemic poverty and mono economies.  Instead of prosperity in the commons, the mechanism of authority has spawned tragedy.

Property is theft in Appalachia. The current system is concerned with the well-being of the politically connected corporati instead of the common good – Appalachian communities. This system exists because legal privilege is granted to industry. The development of this socio-economic order is political, as opposed to free and participatory. The current authority in the coalfields, the corporate state, is illegitimate. It is far past time we transition to society free of it.

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:   

Goodbye, Pete Seeger!

In a time when pop stars are most known for their silly haircuts, salacious outfits and fleeting half-lives, it is almost impossible to comprehend Pete Seeger, the legendary folk icon who died yesterday at age 94.  Seeger was a giant of a human being, a man who insisted upon living humbly but with conviction and courage. 

His commitment to the public good was aching to behold.  When Congress asked him to name names in the 1950s, he refused and was blacklisted.  Undeterred, he toured colleges and coffee houses around the country to make a living.  When his beleaguered former singing partners the Weavers endorsed Lucky Strike cigarettes, presumably to pick up a few bucks, he refused.  When he returned to network television in the late 1960s to sing on the “Smothers’ Brothers” variety show, he choose to sing a provocative song, “The Big Muddy,” lambasting the Vietnam War and LBJ – hardly the kind of song to revive his career.

And yet, Seeger was no dour nay-sayer or small-minded zealot.  He was joyful, generous and optimistic.  He lived his confidence in the power of song to bring people together, beyond politics.  Through his person and the songs he wrote, Seeger’s music came to define the American experience during the civil rights era, the Vietnam War, the environmental movement, and beyond.  It’s hard to imagine the past fifty years without If  I Had a Hammer; Where Have All the Flowers Gone?; Turn, Turn, Turn; The Lion Sleeps Tonight; We Shall Overcome; and many other Seeger songs. 

His determination to nurture wholesome action in the face of abusive power was also a wonder.  From fighting fascism and the Klan to empowering ordinary people to become active citizens, Seeger did not let up.  One of his great inspirations was the Hudson River Clearwater Sloop, which exposed thousands of people to the joys of that river – and the pollution that was endangering it.  He showed up at protests and strikes and at community centers and schools.  How many performers and activists keep at it for more than 70 years without stopping?

Morozov on the Maker Movement

The New Yorker recently featured an interesting overview of the Maker movement – a welcome bit of exposure for a subculture that is nearly invisible to the mainsteam.  It’s refreshing to see the hacker ethic given some due recognition and reportage – and more, serious political and economic analysis.

Alas, the analysis has its limits because it is served up by the ubiquitous scourge and skeptic of all things digital, Evgeny Morozov.  Morozov has carved out a franchise for himself by providing well-written, reflexively negative critiques of the digital world.  Morozov excels at penetrating analysis and he deserves credit for original reportage and historical research.  But he tends to wallow in the “dark side” of the digital universe, conspicuously avoiding or discounting the positive, practical alternatives. 

Almost every piece of his that I’ve read seems to conform to this narrative arc:  “You are being so screwed by digital technologies in so many ways that you can’t even imagine.  Let me expose your naivete.”  Then we are left to splutter and stew in the dismal scenario that is sketched -- and then Morozov exits.  He is rarely willing to explore alternative institutions or movement strategies that might overcome the problems that he limns. 

Still, I must thank Morozov for pointing out some important truths in his survey of the Maker world. Besides suggesting the wide extent of the movement, he does a nice job exposing the sly propagandizing of Chris Anderson, Kevin Kelly and Stewart Brand.  These are among the leading tech gurus who rhapsodize about the coming era of individual freedom and progressive social change that 3D printing, fablabs and hackerspaces are ushering in.      

Morozov revisits the history of the Arts and Crafts movement of the early 1900s, which in its time touted  amateur crafting as a force for personal autonomy and liberation. The idea was that do-it-yourself craft projects would help overcome the alienation of industrial production and provide a basis for political transformation.  As some critics at the time pointed out, however, the real problems were economic inequality and corporate power – something that the craft ethic and individual projects could never overcome on their own.

It’s clear that commoners will not only have to make history themselves, outside of ordinary channels, but to write and preserve that history as well.  My colleagues Silke Helfrich and Michel Bauwens are off to a great start.  Independently, they’ve prepared two useful syntheses of some of the more significant recent developments in the commons and P2P worlds.

Silke prepared a timeline that identifies landmarks in the commons movement from the past several years.  The piece just appeared in the Winter 2014 issue of STIR magazine (about which I will have more to say below).  The timeline is on Silke’s blog as well.  Among the highlights: 

The rise of Remix the Commons (2010 – present), an evolving multimedia project about the key ideas and practices of the commons.

The Atmospheric Trust Litigation (2011 – present), which is filing lawsuits under the public trust doctrine to force state governments and the U.S. Government to protect the atmosphere as common property.

The world’s first Open Knowledge Festival in Finland, a week’s events in September 2012, in Helsinki, Finland.  (The next Open Knowledge Festival will be in Berlin in July 2014.)

The Constitutional Assembly of the Commons held with 700 participants at the occupied Teatro Valley, a revered opera house in Rome, in April 2013.

The timeline also has some great illustrations by Hey Monkey Riot.

Meanwhile, Michel Bauwens posted the “Most Important P2P-Related Projects and Trends in 2013.”  He cautions that “most important” “does not mean any blanket endorsement, nor ‘best.’  It just means that it is an important project.”  

I always find it refreshing when people decide to investigate the commons from new angles and in transdisciplinary ways.  So it is a treat to learn about the web journal Lo Squaderno devoting its entire December 2013 issue (#30) to “Commons – Practices, Boundaries and Thresholds.”  The entire issue is available as a pdf file under a Creative Commons BY-ND-SA license.  

Lo Squaderno is “a free web journal devoted to exploring and advancing research movements…. [that] collects original short features by people committed to research in various fields.  Each issue is structured around a thematic focus around the topics of space, power, and society.”  This commons issue, edited by Giacomo DAlisa and Cristina Mattiuci, along with guest artist Andrea Sarti, consists of nine essays in English and three in Italian.   

Below, provocative excerpts from three of the essays.  In “Show Me the Action, and I Will Show You the Commons!” Helene Finiori, building on Silke Helfrich's observations, points out that the conventional ways of identifying common goods, based on their “rivalry” and “excludability,” is unreliable: 

Types of goods are traditionally distinguished based on their degree of rivalry (the extent to which the use of a good by one diminishes the availability for others) and excludability (the extent to which access to a good can be denied or limited). This perspective ignores for a large part the contextual and variable nature of goods in time and under the ‘stress’ of repeated activity. It does not take into account the fact that rivalry can be a matter of perception (a good may be categorized non rival because perceived as abundantly available irrespective of whether self-renewable or not, such as water in ‘wet’ places), of congestion (a good may be non rival up to a point of saturation, such as roads before they get jammed) or of yield point (a good may be non rival up to the limit beyond which there is no more resilience under stress and therefore no more self-regeneration, such as a savannah before desertification).  It does not acknowledge that low rivalry goods can also be depleted and made unavailable as a result of toxic outputs of activity (externalities). Neither does it consider the fact that property and access, in other words excludability, create artificial boundaries that businesses for example are constantly seeking to expand by inventing new property rights or business models, as part of their ‘natural’ quest to extend the perimeter in which they can generate and capture value. The examples of patented seeds and attempts to patent the human genome are the most striking.

The Green Party of England and Wales really knows how to stake out some fresh territory in their national politics!  At the autumn conference, the Greens adopted a resolution calling for “a programme of reform to remove the power to create money from private banks, and to fully restore the supply of our national currency to democratic and public control so that it can be issued free of debt and directed to environmentally and socially beneficial areas.” 

Bold thinking!  The Greens explain why the existing banking system is so pernicious: 

"The existing banking system is undemocratic, unfair and highly damaging.  Banks not only create money, they also decide how it is first used – and have used this power to fund financial speculation and reckless mortgage lending, rather than to finance investment in productive businesses.  Through the interest charged on the loans on which all credit is based, the current banking system increases inequality.  It also regularly causes economic crises:  banks create and lend more and more money until the level of debt becomes unsustainable, boom turns to bust, and the taxpayer bails out banks that are ‘too big to fail.’  Finally, the need to service the growing mountain of debt on which our money is based is a key driver of unsustainable economic growth that is destroying the environment."

The right to create money and profit from it is known as seignorage.  Banks currently enjoy this right and exercise it through their lending, which creates most of the money in circulation.  Governments have effectively let banks privatize control of the money supply.  In so doing, governments have forfeited the opportunity to provide debt-free lending to support productive enterprises and public needs as opposed to fueling boom-and-bust speculation and relentless economic growth that destroys the environment.

Reclaiming seignorage for public benefit has been a serious idea among many progressive economists for years.  A notable figure in this regard is James Robertson, the founder of the new economic foundation in Great Britain, in 1986, who has championed this issue for years.  Robertson’s most recent book Future Money explains how re-gaining public control over how new money is created and circulated could result in “an annual savings to all citizens of the UK of £75bn, and second in a one-off benefit to the public purse totalling £1.5bn over a three-year transition period.”

Coming Soon: Think Like a Commoner

My year got off to a zippy start when Ralph Nader named my new book – due out in February – as #1 in his list of “Ten Books to Provoke Conversation in the New Year.”  Thanks, Ralph!

Think Like a Commoner:  A Short Introduction to the Life of the Commons is my attempt to introduce the commons to the lay reader and concerned citizen. I wanted to explain the commons in simple but not simplistic language while pointing toward the many deep and complicated aspects of the commons, and to the diverse points of entry to the subject.  My publisher is New Society Publishers, known for its environmental and activist-minded books.

Think Like a Commoner is my best effort to provide a succinct, lucid overview of the commons. In relatively short chapters, I discuss its history, academic scholarship and many cultural variations.  I explore the political and economic implications of the commons and dozens of activist fronts and working projects.  I also look at the international commons movement and provide a list of further reading and other resources. 

It’s no exaggeration to say that it’s taken me fifteen years to write this book!  While Silent Theft, my first foray into commons research and scholarship, came out in 2002, I’ve had quite an odyssey of reading, debate, conference-going and reflection over the past decade.  I decided it was important to circle back on myself to try to make better sense of the commons, ten years later, and to try to communicate it more clearly.

Now it's on to the public outreach / marketing stage of the book.  For that, I'm grateful to climate change activist Bill McKibben for his supportive blurb:  “The Commons is among the most important and hopeful concepts of our time, and once you've read this book you'll understand why!” 

Now that free market dogma has become the dominant narrative about value – and yet that narrative is neither credible nor readily displaced -- we are descending deeper and deeper into a legitimacy crisis.  There is no shared moral justification for the power of markets and civil institutions in our lives.  Since the 2008 financial crisis, the idea of “rational markets” has become something of a joke.  There are too many external forces propping up markets – government subsidies, legal privileges, oligopoly power, etc. – to believe the textbook explanations of “free markets.”

This is a serious quandary.  We’re stuck with a threadbare story that few people really believe -- the “magic of the marketplace” advancing human progress and opportunity – and yet it is simply too useful for elites to abandon.  How else can they justify their entitlements?  These are among the themes explored in an astute new book, The Ethical Economy:  Rebuilding Value After the Crisis  (Columbia University Press, 2013), by sociologist Adam Arvidsson and entrepreneur/scholar Nicolai Peitersen. 

The implicit “social contract” that people have with the reigning institutions of society is coming apart.  As the authors note:  “Three decades of neoliberal policies have separated the market from larger social concerns and relegated the latter to the private sphere, creating a situation where there is no society, only individuals and their families, as Margaret Thatcher famously put it, and no values, only prices.”  Meanwhile, the catastrophic ecological harm being caused by relentless consumerism and economic growth is becoming all too clear, especially as climate change inexorably worsens.

Our “value crisis” is tenacious, say Arvidsson and Peitersen, because we have “no common language by means of which value conflicts can be settled, or even articulated.”  Few people believe in “free markets” and government as benign, mostly responsible influences any more; there is simply too much evidence to the contrary.  And who believes that the Market/State as constituted can solve the many cataclysms on the horizon?

Arvidsson & Peitersen’s ambitious goal is to outline a scenario by which we might come to accept a new, more socially credible justification for socially responsive production and governance.  They want to imagine a “new rationality” that could explain and justify a fair, productive economics and civil polity.  A tall order! 

While I don’t agree with all of their arguments, they do make a penetrating critique of the problems caused by neoliberalism and offer some useful new concepts for understanding how we might imagine a new order.  The Ethical Economy provides a bracing, sophisticated look at these issues.

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