Mar
29

Sustainable Living Expo 2014

Middlebury, VT:  Workshop on the commons and sale of Think Like a Commoner.

Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.

In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources.  He asked:  “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”

His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law:  Effective Judicial Intervention,” in the Michigan Law Review -- a piece that went on to become one of the most influential law review articles ever.

The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens' sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.

The good folks at the Tellus Institute in Boston have recently relaunched the Great Transition Initiative -- “an online forum of ideas and an international network” dedicated to developing “a new praxis for global transformation.” As part of that effort, I was invited to submit an essay on how the commons might contribute to the “Great Transition.”

In my essay, “The Commons as a Template for Transformation,” I argue that “the commons paradigm can help us imagine and implement a serious alternative—a new vision of provisioning and democratic governance that can evolve within the fragile, deteriorating edifice of existing institutions.”  My basic argument: 

The commons—a paradigm, discourse, ethic, and set of social practices—provides several benefits to those seeking to navigate a Great Transition. It offers a coherent economic and political critique of existing Market/State institutions. Its history includes many venerable legal principles that help us both to imagine new forms of law and to develop proactive political strategies for effecting change. Finally, the commons is supported by an actual transnational movement of commoners who are co-creating innovative provisioning and governance systems that work.

For readers of this blog, most of the themes in my GTI essay will be familiar.  My goal was to synthesize many disparate threads into a single, 5,000-word case for the commons. I wanted help a policy-oriented readership see how the commons paradigm could help us re-imagine and transform economics, politics, culture, and particularly ecological stewardship. 

After introducing the whole commons concept for the uninitiated, I review a sampling of commons that manage ecological resources and describe the rise of the contemporary commons movement.  I also urge that we imagine “a new architecture of commons-based law and policy,” drawing heavily on my recent book with Burns Weston, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons (Cambridge University Press).  And finally, I assess the prospects and limitations of the commons paradigm, and conclude:

Michel Bauwens, Founder of the P2P Foundation, has recorded four short videos describing the FLOK Society’s pioneering research project in Ecuador.  FLOK stands for “Free, Libre, Open Knowledge,” and the FLOK Society is a government-sponsored project to imagine how Ecuador might make a strategic transition to a workable post-capitalist knowledge economy. As Research Director of the project, Michel and his team are exploring the practical challenges of making commons-based peer production a widespread, feasible reality as a matter of national policy and law. 

The four videos – each four to six minutes in length – are a model of succinct clarity.  Here is a short summary of each one, which I hope will entice you to watch all of them (links are in the titles below):

Part I: The FLOK Society

Bauwens explains the significant of the FLOK Society project as “the first time in the history of mankind that a nation-state has asked for a transition proposal to a P2P economy.” He asks us to “imagine that for every human activity, there is a commons of knowledge that every citizen, business and public official can use.”  This regime of open, shareable knowledge would move away from the idea of privatized knowledge accessible only to those with the money to pay for copyrighted and patented knowledge.  The system could be adapted for education, science, medical research and civic life, among other areas. 

The FLOK Society project is actively looking for what it calls the “feeding mechanisms” to enable and empower commons-based peer production.  For open education, for example, open textbooks and open educational resources would help people enter into this alternative regime.  However, there are both material and immaterial conditions that must be addressed as well. 

One material condition is proprietary hardware, for example.  If open systems could replace the existing lock-down of proprietary systems, all users could spend one-eighth of what they are currently paying, on average.  Moreover, eight times more students could participate in creating and sharing, said Bauwens, which itself would yield enormous gains.  As for "immaterial conditions" that need to change, innovations like “open certification” are needed to recognize the skills of those who learn outside of traditional institutions, as in hacker communities.

The Principles of LiquidFeedback

Several years ago some software programmers in Berlin came up with a new software platform to let diverse groups of people self-organize themselves to make democratic decisions online.  The program, LiquidFeedback, gives everyone a chance to participate without the need for physical assemblies or in-person voting. 

The program was first used by the German Pirate Party, but it has been also been used by citizen associations, cooperatives and even corporations to elicit the collective sentiment of groups of people, including for binding votes. The idea behind the program is to avoid the classic problems of representative democracy and hierarchies.  As we all know, elected leaders are often happy to ignore or misrepresent the will of the people if it helps them stay in power.  LiquidFeedback was intended as something of an antidote.

Now, the programmers behind LiquidFeedback, the Public Software Group of Berlin, have published a book, The Principles of LiquidFeedback, describing the philosophical, political and operational details of the software system. The authors – Jan Behrens, Axel Kistner, Andreas Nitsche and Bjorn Swierczek – bill their book as “a must-read for anybody planning to make online decisions or to build online decision platforms and is also interesting for anybody interested in the future of democracy in the digital age.”

At a time when elections, legislatures and other democratic processes do a poor job at representing the will of the people, LiquidFeedback is a welcome experiment in demonstrating a better way. It is not seen as a substitute for representative democracy, but more as a complement to it.  I blogged about the program in 2012 and concluded that it “clearly shows the potential for re-imagining more open, legitimate and responsive forms of governance.” 

LiquidFeedback empowers any accredited member of a group to propose a new initiative; make suggestions about it; create alternatives to the proposed initiative; and vote on a final proposal.  Discussion generally takes place on other platforms, however, outside of LiquidFeedback. But the authors warn that "in the real world it is not possible to implement a secret electronic voting system whose functionality can be verified by the voters." Liquid Feedback uses open ballots.

A fascinating report produced by the Strategic Foresight Group, a Mumbai-based think tank, shows that cooperation across political boundaries in the management of water correlates quite highly with peace – and that the lack of cooperation correlates highly with the risk of war. 

The report states its conclusions quite bluntly:  “Any two countries engaged in active water cooperation do not go to war for any reason whatsoever.”  The report offer intriguing evidence that commoning around water ought to be seen as a significant factor in national security and peace – and as a way of avoiding war and other armed conflict. 

Trans-boundary water cooperation, as defined by the report, does not simply consist of two countries signing a treaty or exchanging data about water.  It means serious political, administrative, policy and scientific cooperation. (Thanks, James Quilligan, for alerting me to this report.)

To give the level of cooperation some precision, the report’s authors came up with a “Water Cooperation Quotient” for 146 countries, based on ten parameters.  These include the existence of formal agreements between countries for cooperation; the existence of a permanent commission to deal with water matters; joint technical projects; ministerial meetings that make water a priority; coordination of water quality and pollution control; consultation on the construction of dams or reservoirs; among other factors. 

One of the most striking findings of the report:  “Out of 148 countries sharing water resources, 37 do not engage in active water cooperation.  Any two or more of these 37 countries face a risk of war in the future.”  The regions of the world that face a higher risk of war – i.e., countries with low or nonexistent levels of trans-boundary water cooperation – are in East Africa, Middle East, and Asia. 

This means that roughly one fourth of the nations of the world “exposes its population to insecurity in its relations with its neighbors.”  It also means that water bodies that are not subject to cooperative management are suffering from serious ecological decline – reductions in the surface area of lakes, deeper levels of rivers, pollution, and so forth.

The report notes the particular cooperative actions that countries have taken to manage their respective water supplies.  Singapore, with no natural water resources of its own, reduced its pressures on Malaysia by sourcing water from rainfall, recycling, desalination and imports.  South Africa obtains access to water in a river that it shares with Lesotho, and in exchange is helping the less-developed Lesotho build dams that provide hydropower and economic development.

Now Available -- Think Like a Commoner

I'm thrilled to announce the publication of my new book, Think Like a Commoner:  A Short Introduction to the Life of the Commons (New Society Publishers). Unlike so many of my previous books on the commons – which explored some specific aspect of the commons (culture, copyright, ecological commons) or were aimed at academic readers – Think Like a Commoner is a general overview of the commons written for the general reader. 

It’s my attempt to reach the not-necessarily-political layperson to introduce the commons paradigm in an accessible, non-academic way, but without dumbing things down.  The book provides a succinct overview of the great diversity of commons in the world and the many pernicious enclosures now being fought.  It describes the logic, worldview and ethics of the commons, and the burgeoning international movement of commoners, especially in Europe and the global South. 

I’ve created a special website for the book – www.Think LikeACommoner.com – for those who want to keep track of the reviews and my upcoming appearances.  I’ve also included an extensive set of citations, keyed to page numbers in the book, which amount to footnotes and recommendations for further reading.  I didn’t want to burden a book intended for general readers with all the scholarly hoohah of notes, but of course some people do want to inquire further into certain aspects of the commons. Hence the web-based notes.

At the end of the book, I include a number of short references:  the statement, "The Commons, Short and Sweet"; Silke Helfrich’s chart, “The Logic of the Commons and the Market”; a select bibliography of further readings on the commons; and a listing of leading websites on the commons.

I’m grateful for the glowing endorsements that the book has received from Bill McKibben, Ralph Nader, Maude Barlow, David Korten, Michel Bauwens and Peter Barnes.  You can read those at the book website.

If you'd prefer to read the book in French or Polish, there are translations already available.  My thanks to the Charles Léopold Mayer Foundation for its support for the book (and the French translation), and to FreeLab, the translators of the Polish edition, and the publisher, the social cooperative Faktoria.

So why should investors always have the upper hand in “development” plans when the resource at stake is a beloved building or public space? Why should the divine right of capital necessarily prevail? 

How refreshing to learn that England has created a special legal process for preventing market enclosures of community pubs.  There is even a Community Pubs Minister, whose duty it is to recognize the value of pubs to communities and to help safeguard their futures.  So far, some 100 pubs have been formally listed as “assets of community value.”

I know, I know – what would Margaret Thatcher say?  "Damned government interventions in the free market!"  Fortunately, that kind of market fundamentalism has abated for a bit, enough that the Community Pubs Minister -- Brandon Lewis, a Conservative Party member of Parliament! -- now extols “the importance of the local pub as part of our economic, social and cultural past, present and future.”  He adds:  “We have known for hundreds of years just how valuable our locals are.  Not just as a place to grab a pint but also to the economies and communities they serve and that is why we are doing everything we can to support and safeguard community pubs from closure.”

For a while, Couchsurfing had an amazing run, connecting travelers with hosts and helping strangers become friends.  Until around 2011, it was a way-crazy gift-economy for hospitality on a global scale, with more than five million members (now seven million) in 90,000+ cities.  Who would have thought that a loose non-market community could ever get so big while retaining its ideals and ethical stance?

Alas, Couchsurfing’s popularity created some new problems of its own, and the site was plagued by some dubious management decisions, technical challenges, and the lack of funds.  At Medium.com, Roy Marvelous explains what happened in 2011:

Basically, Couchsurfing owed tax money (its tax-exempt status as a non-profit was not approved), it needed far more investment in servers and it needed to hire more engineers to reprogram the site to make it scalable. And apparently, the only viable solution was to become a for-profit, sell a portion to venture capitalists and have it run by professionals.

The problems were real but I’ll be blunt: Couchsurfing was stolen from its members. This was code, content & community built by the members, for the members. None of those volunteers, working for free under the false pretense that Couchsurfing would stay non-profit, received any equity in this new corporation. Why couldn’t there have been another way? I would have donated money. I would have been happy with advertising. They could have moved Couchsurfing HQ to Berlin or Chang Mai or Santiago rather than be based in San Francisco, one of the most expensive cities in the world.

The moment Couchsurfing was sold, it stopped becoming a community and started becoming a service, not unlike Yelp or Meetup or Facebook. And herein lies the problem: Couchsurfing now has an identity-crisis.

After the Internal Revenue Service refused to grant Couchsurfing tax-exempt nonprofit status – formally known as “501(c)(3)” status under the tax code – Couchsurfing decided to become a “Certified B Company,” or “for-benefit” corporation.  As Marvelous points out, this was apparently the only way to move forward.  (But is this true?)  By 2012, Couchsurfing had raised more than $22 million in venture capital money and it was on its way to becoming another profit-oriented corporation in the “sharing economy.”  (The so-called sharing economy, it should be noted, is less about sharing than about micro-rentals of things that previously could not be marketized.)

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.

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