law

There are many reasons why constitutional democracies around the world are faltering and authoritarian nationalism rising. Professor Camila Vergara, a Chilean political philosopher and scholar of constitutional law, has one powerful, audacious explanation: Constitutions offer no meaningful political role for ordinary people in democratic governance, and so oligarchic institutions take root that privilege the domination of the few over the many.

It is the conceit of liberal constitutionalism that the will of the people will be robustly expressed through elections, for example, and representative legislatures. Such systems, in theory, will express the popular will and give the state legitimacy and stability. 

But as Vergara brilliantly argues in her book Systemic Corruption: Constitutional Ideas for an Anti-Oligarchic Republic (Princeton University Press, 2020), corruption is inherent in representative democracy. Oligarchs and other political elites nearly always capture modern republics unless ordinary people have substantive constitutional powers of their own.

Professor Vergara boldly argues for new/old types of "plebeian republicanism" such as citizen assemblies with real authority. This is the only way that constitutional systems can renew themselves and banish systemic corruption.

Can creativity flourish and remain within the control of commoners? Or will businesses inevitably capture creativity and convert it into private property to make money? 

Copyright and trademark law are certainly designed for those purposes. They presume a market identity for creators of art, software, and new knowledge. And in fact, the corporate world routinely vacuums up creativity that's developed through commoning – images, music, know-how, social sharing.

Yet history tells another story. It shows that creativity naturally thrives in commons, and need not enter the marketplace to find support or fruition. Commoning is an ideal vessel for the collaborative development of new ideas. The process may involve direct cooperation or merely proximate respect and influence, but in either case, introducing property rights and profit-making can seriously mess up the collective collaborations that yields innovation.  

When I learned about Professor Aaron Perzanowski, a legal scholar at the University of Michigan Law School, I decided to quiz him about his work on my podcast, Frontiers of Commoning (Episode #45). I wanted to learn more about the bottom-up, social dynamics of creativity, how commoners sustain them, and the inevitable collisions with intellectual property law.

Perzanowski's 2017 anthology of essays, Creativity without Law, edited with Kate Darling, goes into great detail about this topic. The essays show that, contrary to the premises of intellectual property law, artists share. They come up with new ideas by working within a community of peers. They are not solo geniuses,but "nested-I's" working within a community.

Chefs constantly come up with new entrees and desserts even though they don't have copyright protection for recipes. Fashion designers dream up "new" and revamped dress designs all the time, and the industry flourishes, even though any garment can be copied by anyone. (It's the trademarked name that remains proprietary.)  

The idea that the Ganges River in India or the Amazon Basin in Brazil should have "legal personhood" – and thus be able to defend its interests in court – was considered zany only ten or fifteen years ago, at least in Europe and North America. Now this once-fringe legal concept is going mainstream. Legislatures or courts in twelve countries have recognized the "rights of nature" at the state, local, and/or national levels in a dozen nations. In the United States alone, some three dozen communities –from Pittsburgh and Toledo to Orange County, Florida (population 1.5 million people) – have enacted such laws, often with overwhelming public support. Ecuador now has a constitutional provision recognizing the rights of nature.

It's somewhat surprising that unorthodox legal concept has taken root and developed so quickly. After all, western jurisprudence generally privileges private property rights over nature, humanity over plants and wildlife, and individual rights over collective rights. So how have conventional systems of law come to accept the daring idea that natural systems are alive and deserving of legal protection?

A lot can be learned from the impressive legal work of Thomas Linzey, a fiercely creative attorney who has not only pioneered the rights of nature, but developed legal doctrines for "community rights" and more recently, "self-owned land." (More about both of those in a moment.)

Linzey, based in Spokane, Washington, is Senior Legal Counsel at the Center for Democratic and Environmental Rights, where he has been a leading champion of community empowerment and the rights of nature for more than twenty years. Previously, at the Community Environmental Legal Defense Fund, Linzey had argued for "community rights" as a legal response to corporate abuses such as fracking and water pollution.

In Episode #40 of my Frontiers of Commoning podcast, I quizzed Linzey about his legal hacks that attempt to protect ecosystems and communities in novel ways.

If you’re a good ancestor of the Enlightenment, you probably believe that “nature” is something entirely separate from us. We moderns live at a sanitized distance from messy biophysical realities, after all. Lately, this casual premise of ours has been taking some serious hits, however, with the acceleration of climate change, species extinctions, collapsing coral reefs, cataclysmic weather events, and more.  

In recent weeks, I've noticed a big uptick in the number of creative overtures to the realm previously known as nature (a term that implies that humanity and nature are separate). I decided to bring together some of the more imaginative gambits that I've encountered.

What underlies each example, it seems, is our aspiration to treat “nature” as a living system of diverse elements, each with its own agency and imperatives. Or as Oren Lyons, a Native American Faithkeeper of the Seneca Nation, put it years ago: “What you people call your natural resources, our people call our relatives.” 

So how do we get better acquainted with our nonhuman relatives?

A New Pronoun for the Natural World

Robin Wall Kimmerer, the celebrated author of Braiding Sweetgrass, suggests we should start with the idea of using a new pronoun when referring to nature. In a recent essay in The Ecologist magazine, she urges us to avoid the use of the pronoun “it” in such circumstances:  

“Objectification of the natural world reinforces the notion that our species is somehow more deserving of the gifts of the world than the other 8.7 million species with whom we share the planet. Using 'it' absolves us of moral responsibility and opens the door to exploitation. When Sugar Maple is an 'it' we give ourselves permission to pick up the saw. 'It' means it doesn't matter….

The following essay is my contribution to the recently published anthology, 'The Great Awakening: New Modes of Life amidst Capitalist Ruins' (Punctum Books), published under a Creative Commons Attribution-ShareAlike license. I co-edited this volume with my colleague Professor Anna Grear of Cardiff University. More about the book at the Punctum Books website.

The chapter asks some basic questions about the future of commons within a system of state power and law: Can commoning be affirmatively protected via conventional state law while respecting the integrity of commoning as a post-capitalist social form? Can Vernacular Law and modern law be artfully blended, if only as a makeshift venture?

The essay is about 7,000 words, so it's not a quick read, but it outlines some salient legal challenges that we face in moving commons forward. It feels like a nice companion piece to my recent podcast interview with Janelle Orsi of Sustainable Economies Law Center.

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In recent years, the power and diversity of commoning in contemporary life has increased dramatically. Commoning is both an ancient and rediscovered social form that can be seen in the stewardship of forests, fisheries, and farmland, especially in subsistence and indigenous contexts. It lies at the heart of community land trusts, local currencies, mutual aid networks, and cohousing. It is embodied in community-supported agriculture, agroecology, and permaculture, and in digital spaces that produce open source software, hardware, and design. Commoning is at work in open access scholarly journals, crowdfunding tools, and platform cooperatives, and in academia, arts and culture, and many other realms.

Because commons are strongly inclined to respect ecological limits and devise fair-minded, flexible governance through inclusive participation, they hold great promise in dealing with many societal problems. However, commoning as a legal activity faces an uncertain future. Its practices and values are philosophically alien to many aspects of the liberal market and state and their mutual focus on individualism, calculative rationality, material gain, and market growth.[1] Commoning therefore has trouble gaining legal recognition and support. Indeed, the state is predisposed to ignore the commons, criminalize its activities, or exploit its resources in alliance with the business class.

The commons may be a pariah within the world of conventional politics because it challenges the foundational terms of ideological debate, which presumes that the market and state are ideological adversaries – the “private sector” battling the “public sector.” This is a specious binary because market and state are in fact deeply interdependent and both subscribe to the grand narrative of “social progress through economic growth.” The state looks to the market for economic growth, tax revenues, and social mobility for its citizens, while market players look to the state for a stable legal order, subsidies, state support and privileges, and the mitigation of market abuses (pollution, social disruption, inequality). State and market are so utterly symbiotic it is entirely warranted to speak about the market/state system.[2]

From within this dominant worldview, it is almost a foregone conclusion that collective management of wealth would be seen as a “tragedy of the commons” – the over-exploitation and ruin of a resource.[3]  To the guardians of the market/state, after all, individual agency and rights are supreme. Collective action is not perceived as feasible or attractive. By definition, human beings are defined as atomistic individuals, not as co-participants in shared histories, cultures, interests, and values. When people are conceived of as “rational individuals” with boundless “incentives” to take as much as they can, it should not be surprising that heedless consumption and the reckless “externalization of costs” follows.[4]

Now, however, this convenient fiction is starting to fall apart. Critics are increasingly calling out the claim that a commons is simply a selfish free-for-all when, in fact, this scenario more accurately describes what we might call the tragedy of the market.[5] The commons is in fact a durable social form that orchestrates shared intentionality to steward wealth responsibly and inclusively over the long term. In a commons, people willingly negotiate rules of peer governance, resolve group conflicts, and enforce rules. They develop ways to pool and share (or divide up or mutualize) their collective wealth, without resort to a state Leviathan to maintain law, order, and personal safety.

In our legal system -- designed to protect private property, individual rights, and market exchange – it can actually be very difficult to share things legally. Attorney Janelle Orsi found this out the hard way as she worked with co-housing groups, worker cooperatives, and community gardens. “Our clients kept running up against legal barriers that make no sense: employment laws for co-ops in which people are both employer and employee. Landlord-tenant law for cohousing projects in which people are both landlords and tenants.”

Such frustrations led Orsi to co-found (with Jenny Kassan) the Sustainable Economies Law Center (SELC) in Oakland, California, in late 2009. It has since become a singlular team of venturesome lawyers attempting creative hacks on antiquated laws and regulations.Their clients are not corporations or other deep-pocket moguls, but grassroots groups, cooperatives, and social justice organizations, especially in the Bay Area.

The story of the Sustainable Economies Law Center’s amazing work is the subject of my latest Frontiers of Commoning podcast, Episode #8. Janelle explains some of the innovative legal strategies that the Law Center uses to try to help cooperatives, commons, low-income communities, and Native Americans, among others. (Full disclosure: I am on SELC’s advisory board.)

“The law treats people as atomized, bounded individuals in conflict with each other, in an attempt to keep people separate,” said Orsi. Much of the work at the Law Center is therefore about coming up with ingenious hacks on the law so that people can solve their problems together. The organization describes its theory of change this way: 

“Neither our communities nor our ecosystems are well served by an economic system that incentivizes perpetual growth, wealth concentration, and the exploitation of land and people. Communities everywhere are responding to these converging economic and ecological crises with a grassroots transformation of our economy that is rapidly re-localizing production, reducing resource consumption, and rebuilding the relationships that make our communities thrive."

In a variation on my last post, on the commons in South East Europe, it seems apt to mention another regional history of the commons, in Italy. This history was written by Ugo Mattei in 2014 as a chapter in a book, Global Activism: Art and Conflict in the 21st Century, edited by Peter Weibel (and published by ZKM/Center for Art Media Karlsruhe, in Germany, and MIT Press in the US).

Mattei is the noted international law scholar, lawyer and activist who has been at the center of some of the most significant commons initiatives in Italy. His chapter is a welcome synthesis of how the commons discourse in Italy arose from the misty-eyed imagination of a few far-sighted legal commoners, to become a rally cry in critical fights against the privatization of water, the Teatro Valley theater in Rome, and other cherished shared wealth. The concept of the commons has since gone mainstream in Italian political culture, animating new initiatives and providing an indispensable vocabulary for fighting neoliberal capitalist policies.

Ugo’s piece is called “Institutionalizing the Commons: An Italian Primer.” (PDF file) In it, he describes the history of the commons in Italy as “a unique experiment in transforming indignation into new institutions of the commons,” adding, “perhaps this praxis ‘Italian style’ could become an example for a global strategy.”

For centuries, ordinary Brits have enjoyed a legal “right to ramble” throughout the countryside even when they might cross someone’s private property. In England and Wales alone, there are an estimated 140,000 miles of footpaths and bridlepaths that are considered public rights of way. Now, as reported by the website Boing Boing, the full scope of this right -- and access to a vast network of paths -- is in question.

The legal right to ramble stems from the Charter of the Forest, the 1217 social compact grudgingly ratified by King John that formally recognized commoners’ rights of access to the forest. The right was part of a larger constellation of rights won by commoners after their long struggle with the Crown over who shall have access to the forest – only the King and his lords and retainers, or ordinary people, too?

Because of the right to ramble, a sprawling network of paths evolved in Great Britain over the centuries, bringing together villages, roads, farms, and natural landmarks throughout the landscape. The pathways were once regarded as vital infrastructure for commerce, social tradition, and everyday convenience. Now the pathways are mostly seen as a beloved cultural heritage and recreational commons. Millions of people roam the pathways every year. 

Like so many social limitations on private private property, however, people forget about what belongs to them – while property owners are ever-alert to the prospect of expanding their rights. Many modern-day property owners in England and Wales despise the right to ramble because it limits, however marginally, their absolute, exclusive control of the land. 

Two years ago, we heard a great deal of hoopla on the 800th anniversary of the Magna Carta, celebrating it as the landmark advance for the rule of law and limits on the power of the sovereign. Far less attention was given to a companion document, the Charter of the Forest, which guaranteed the customary rights of commoners to access the forests that were so vital to their livelihoods.  

These rights were secured after a long civil war against the King, who had relentlessly expanded his claims of exclusive control of the forest, punishing violators with fines, imprisonment and sometimes death. So it is fitting that we pause a moment and recall that 800 years ago, on November 6, 1217, King Henry III granted the Charter of the Forest, formally recognizing in writing the customary rights of commoners to have access to the things essential to their everyday lives.

Commoners depended on the forest for nearly everything. It provided  wood for their fires and houses, pastures for sheep and cattle, and  wild game for food. The forest had mushrooms, hazelnuts, berries, dandelion leaves, and countless herbs.  The forests were a source of acorns and beech mast for pigs; brush with which to make brooms; and medicinal plants for all sorts of illnesses and diseases.

“More than any other kind of landscape,” wrote English naturalist Richard Mabey, “[the English forests of the 13th Century] are communal places, with generations of shared natural and human history inscribed in their structures.”

How is it that the Charter of the Forest has been nearly forgotten? Historian Peter Linebaugh explains in his wonderful book The Magna Carta Manifesto that the two charters of liberty were often publicly linked.  Indeed, the very term Magna Carta was used to distinguish the Great Charter of 1215 with the "lesser" one issued two years later, the Charter of the Forest. 

It wasn’t until 1297 that King Edward I directed that the two be treated as the single law of the land. In 1369, King Edward III issued a law that incorporated the two into a single statute, with the Charter of the Forest becoming chapter 7 of the Magna Carta. Over the centuries, the Charter of the Forest, seen as a minor subset of the Great Charter, receded from public memory. 

A few months ago, the New Zealand Government took an amazing step – prodded by indigenous peoples – to legally recognize the rights of a river.  A new law, the Te Awa Tupua Act, recognizes that the Whanganui River (known to the iwi and hapū people as Te Awa Tupua) is “an indivisible and living whole, …from the mountains to the sea, incorporating all its physical and metaphysical elements.”

The metaphysical reality that the law recognizes is one that remains quite alien to the western mind:  “I am the river, and the river is me.”  That's how the Iwi express their relationship to the Whanganui; the two are indivisible, an utterly organic whole. The river is not a mere “resource” to be managed.

The idea of conferring of a “legal personality” on a river and explicitly guaranteeing its “health and well-being” is a major departure for Western law, needless to say. We westerners have no legal categories for recognizing the intrinsic nature of nonhuman living systems and how we relate to them ontologically. As if to underscore this fact, the practical legal challenges of defining and enforcing the rights of the Whanganui are far from resolved, notwithstanding the creation of a new legal framework.    

Still, the law is an important start. It settles the historical claims on the river made by indigenous peoples, and it makes nineteen remarkable “acknowledgements” of the Crown’s behavior over the past century. The law even recognizes the “inalienable connection” of the iwi and hapū to the river, and tenders an official apology.

This latest episode in granting rights to nature is nicely summarized in a piece in The Guardian by Ashish Kothari and Shristee Bajpai of the Kalpavriksh Environmental Action Group in India, and Mari Margi of the Community Environmental Legal Defense Fund in the US.