David Bollier

Can the boundary-bursting categories of the commons penetrate the mighty citadel of Harvard Law School and its entrenched ways of thinking about property, markets and law?  I set out to find out last Saturday at the “This Land Is Your Land:  Remaking Property After Neoliberalism” conference.  The one-day event was convened by Unbound, the Harvard Law journal of the legal left, and the Institute for Global Law and Policy.  I had been invited to participate on a panel, “From Homo Economicus to Commoner” and to explore with about 100 students and a few professors how “the left” might approach property rights in some new ways.

The liberal/leftist luminary Duncan Kennedy, a founder of the critical legal studies movement and an advisor to Unbound, opened the day with a talk about “property as fetish and tool.”  He explained how both the right and the left have their own versions of property fetishism.  The right has adopted highly naturalistic arguments that regard property as an entirely natural, ahistorical reality.  An example is the right’s imposition of intellectual property rights on countries of the global South. 

The left, meanwhile, generally regards property law as a “bundle of rights” that is principled and conceptually coherent when it is in fact, he pointed out, simply an incoherent accretion of laws that reflect countless political struggles of the past.  The problem with the left, Kennedy suggested, is that it does not have an alternative conception of property law except as a useful tool of left political projects, such as better housing and social conditions.  Kennedy implied that it was futile for the left to try to get “outside” of property discourse.

Fortunately, Michael Hardt of Duke University – author of Empire and Commonwealth, among other books –objected.  He argued that we need to develop a conception of property that lets us think outside of standard property discourse and property relationships.  But is this possible and desireable?  Conference participants disagreed, and came back to the topic many times throughout the day.

It is always refreshing to read Peter Linebaugh’s writings on the commons because he brings such rich historical perspectives to bear, revealing the commons as both strangely alien and utterly familiar. With the added kick that the commoning he describes actually happened, Linebaugh’s journeys into the commons leave readers outraged at enclosures of long ago and inspired to protect today's endangered commons. 

This was my response, in any case, after reading Linebaugh’s latest book, Stop, Thief!  The Commons, Enclosures and Resistance (Spectre/PM Press), which is a collection of fifteen chapters on many different aspects of the commons, mostly from history.  The book starts out on a contemporary note by introducing “some principles of the commons” followed by “a primer on the commons and commoning” and a chapter on urban commoning.  For readers new to Linebaugh, he is an historian at the University of Toledo, in Ohio, and the author of such memorable books as The Magna Carta Manifesto and The London Hanged. 

Stop, Thief! is organized around a series of thematic sections that collect previously published essays and writings by Linebaugh.  One section focuses on Karl Marx (“Charles Marks,” as he was recorded in British census records) and another on British enclosures and commoners (Luddites; William Morris; the Magna Carta; “enclosures from the bottom up”).  A third section focuses on American commons (Thomas Paine; communism and commons) before concluding with three chapters on First Nations and commons.

Michel Bauwens of the P2P Foundation recently published a short essay noting that the economic fruits of peer production in today’s world tend to be captured by capitalists – whereas what we really need is a system to enable capital accumulation for and by commoners themselves.  To that end, Bauwens embraces the idea of a Peer Production License, as designed and proposed by Dmitri Kleiner.  

The idea is to emancipate online commons from the control of capital and corporations, and to enable cooperatives working within the market system to reorient themselves to the larger common good, and not just their members. Bauwens’ essay, originally published on the P2P Foundation blog, follows below:

The labor/p2p/commons movements today are faced with a paradox.

On the one hand we have a re-emergence of the cooperative movement and worked-owned enterprises, but they suffer from structural weaknesses. Cooperative entities work for their own members, are reluctant to accept new cooperators that would share existing profits and benefits, and are practitioners of the same proprietary knowledge and artificial scarcities as their capitalist counterparts. Even though they are internally democratic, they often participate in the same dynamics of capitalist competition which undermines their own cooperative values.

On the other hand, we have an emergent field of open and commons-oriented peer production in fields such as free software, open design and open hardware, which do create common pools of knowledge for the whole of humanity, but at the same time, are dominated by both start-ups and large multinational enterprises using the same commons.

Thus, we need a new convergence or synthesis, a ‘open cooperativism’, that combines both commons-oriented open peer production models, with common ownership and governance models such as those of the cooperatives and the solidarity economic models. What follows is a more detailed argument on how such transition could be achieved.

Currently, less than 3% of the food that Americans eat is grown within 100 to 200 miles of where they live.  And many people in poorer neighborhoods simply do not have ready access to affordable local produce.

A fascinating new project, the Food Commons, aspires to radically change this reality.  It seeks to reinvent the entire “value-chain” of food production and distribution through a series of regional experiments to invent local food economies as commons. 

By owning many elements of a local food system infrastructure – farms, distribution, retail and more – but operating them as a trust governed by stakeholders, the Food Commons believes it can be economically practical to build a new type of food system that is labor-friendly, ecologically responsible, hospitable to a variety of small enterprises, and able to grow high-quality food for local consumption.

Food Commons explains its orientation to the world by quoting economist Herman Daly:

“If economics is reconceived in the service of community, it will begin with a concern for agriculture and specifically for the production of food.  This is because a healthy community will be a relatively self-sufficient one.  A community’s complete dependency on outsiders for its mere survival weakens it….The most fundamental requirement for survival is food.  Hence, how and where food is grown is foundational to an economics for community.”

Food Commons is a nonprofit project that was officially begun in 2010 by Larry Yee and James Cochran.  Yee is a former academic with the University of California Cooperative Extension who has been involved in sustainable agriculture for years.  Cochran is the founder and president of Swanton Berry Farms, a mid-scale organic farming enterprise near Santa Cruz, California.