The common goods movement in Italy is a powerful example of the way in which social movements are emerging as the new “pouvoir constituant” in a top down and undemocratic process of economic constitutionalism imposed by international economic institutions. They are proving on both national and supranational levels that civil society actors are a potent source of constituent power to both enforce national constitutional protections of the public through counter hegemonic uses of the law and also at the transnational level, where they are forming global networks capable of not only negotiating with corporate power directly but also to influence the top down economic constitutionalism imposed from above by the WTO and “troika.” Social movements are expanding our notion of the public sphere and politics, giving new meaning to the slogan “the personal is political.” Commons social movements are not only sites of political protest outside of traditional political arenas, but also sites of societal constitutionalism.

* Article: Social Movements as Constituent Power: The Italian Struggle for the Commons. By Saki Bailey and Ugo Mattei.

We excerpt the last part of this must-read essay on the politics of the commons:

Ugo Mattei and Saki Bailey:

* SOCIETAL CONSTITUTIONALISM OF THE COMMONS FROM BELOW V. TOP DOWN ECONOMIC CONSTITUTIONALISM

The current decline of State sovereignty, not only in the periphery but even at the very center of the capitalist system, suggests that maintaining (and expanding at the global level) a liberal constitutional model simply will recreate the conditions for continuous accumulation of power and wealth, through what can only be understood as a process of continuous enclosure of sovereignty. “The systems of transnational law, especially trade law, function as ‘constitutions’ in the sense that they subordinate national constitutions, that is, treats national constitutions as legal regimes under their jurisdiction (first order rules in H.L.A. Hart’s sense) and open them to free trade.”80 The top down economic constitutionalism of the World Bank, WTO, and in the context of Europe, the “Troika”; have subordinated state governments to implement neo liberal reform not only in the periphery, in the form of structural adjustment programs, but at the very heart of the West, in the form of austerity measures. This section analyzes the supranational constitutional process and considers the beni comuni movement as part of an oppositional global constituency of social movements. In this context, we apply the theory of societal constitutionalism or the Zapatistas concept of “one world in many worlds.” Can a societal constitutionalism of the commons from below mount a challenge to the economic constitutionalism imposed from above by such actors like the IMF and WTO?

A. Economic Constitutionalism Beyond the State

A number of scholars, have answered the challenge of articulating a theory of constitutionalism beyond the state: “This approach views constitutionalism as a continuum, and constitutionalisation as the process by which various entities acquire constitutional characteristics.”

This wider pluralist conception of constitutionalism has been applied to make the case for constitutional proceeses taking place not only in the political sphere but also in economic and societal spheres.83Many scholars have applied this analysis to make the case that “economic constitutionalism” is taking place within and by economic institutions like the WTO and EU.84 While the WTO has neither a democratic legislature nor court, it generates law in the form of soft law, resulting in non binding decisions, which are however in many cases are enforced by strong states upon weaker ones, under the threat of political and/or economic retaliation. Similarly, the states of the European Union, while far from ratifying a political constitution, are bound by the laws of the European Union Law, which operates as a supranational body with a “quasi-federalist” ethos. As has become increasingly clear since the eruption of the Euro-zone crisis, the European Union exerts economic pressure blatantly through the European Central Bank, imposing a defacto hierarchy of European law over state law, as demonstrated in the example of the Monti technical government in Italy. As a result, in both in the case of the WTO and European Union, there are clearly problems in making the claim that these organizations are engaged in “economic constitutionalism,” though they exhibit many constitutional features, such as “plausible claims to sovereignty, jurisdictional scope, tenets of citizenship and modes of representation.”85

The most effective critique leveled at this constitutional claim is that these organizations fail in one crucial constitutional respect: they lack democratic representation, and therefore result in lack of accountability and the exclusion of non western and non state actors in the constitutional process. Membership in these organizations is open only to states, and as we analyzed in the Italian case, representative democracy is failing at the state level, and thus representation by states in the WTO and European Union is similarly tainted by extension, resulting in state representatives often working against the interests of its own people. Furthermore, membership in these organizations requires that member states accept and facilitate the free market ideology which underpins their projects, often favoring western nations at the disadvantage of the Global South. As a remedy to these critiques, many scholars are promoting constitutional pluralism in the “economic consitutionalism” of these institutions, calling for broader inclusion of nonwestern states and non-governmental actors as constituents.86 A pluralist and open vision of constitutionalism would consider the multiple forms constituents may take outside of the liberal constitutional form and traditional politics. In this spirit, scholars promote social movements as a positive counter-hegemonic force to the constituent power of western states, providing a “discursive interface between international organizations and a global citizenry” capable of “monitor(ing) policy making in these institutions, …. bring(ing) citizens concerns into their deliberations and empower(ing) marginalized groups so that they too may participate effectively in global politics.”

Similar to the way in which social movements, through transnational advocacy networks, are able to put local communities directly in contact with multinationals as discussed in the Uwa case, social movements may also mediate the relationship between economic institutions like the WTO and civil society. Buchanan along with many others, however argues that social movements are far from being representative of “the peoples” will. She critiques the way in which the counter movement has been primarily led by NGOs, and the similar problems NGOs have to governmental actors, such as agendas driven by the west under the guise of representing Global South or “subaltern” interests. Third world approaches scholars like Rajagopal and Mutua are referring to this move as the NGOization of social movements.88 Mutua for example points out the incestuous origins of many of these NGOs: sharing often the same founders and governing boards as one another, all being white, male, from the West and educated in US Ivy League Schools.89 Like Buchanan, Marti Koskenniemi argues for pluralism in the economic constitutional process, but similarly points out the striking “homogeneity of the cultural and professional outlook” of those participants involved on both sides, offering the same legal and technical solutions.90 The policies generated by NGOs often mirror that of the WTO and EU because they embrace the same liberal “development” and “efficiency” rhetoric as their counterparts. In this context, the commons social movement may offer some hope in providing the legitimacy that social movements have lost through this “NGOization” effect.

Commons movements tend to demand representation by those who are actually part of the movement. Often members are extremely suspicious about foreign funders and outside organizers and even reject them when they know it will undermine their local legitimacy.91 Furthermore, as discussed in a previous section, social movements may be far more capable than NGOs of challenging existing institutions and offering true alternatives because they are actually engaged in the practice rather than the theory of offering forms of regulation and institutions. These movements may provide the much needed institutional “imagination” necessary to providing true alternatives to the development, rights, and private property packages promoted by the modern liberal state and international economic institutions. As one commons scholar Lee Anne Fennell put it, “A resource arrangement that works in practice can work in theory.” Commons communities rather than offering rhetoric are offering tested best practices (some over thousands of years), which not only challenge the policies of top down economic actors theoretically but empirically. The local and practice oriented nature of common movements may provide the much needed legitimacy and imagination to social movements as counter consitituents, which NGOs lack, unveiling technocratic “economic” decisions taken from above as political decisions where values like justice, as opposed to “efficiency” and “development,” have renewed relevance.

B. Societal Constitutionalism of the Commons

Constitutional approaches beyond the nation state can be used to describe the economic constitutionalism taking place from “above,” but they can also provide tools to understanding and desribing constitutional processes taking place “from below” in civil society. They can be used to describe the “societal constitutionalism” taking place in civil society, as has been argued by other scholars abouts civil society organizations like labor unions, consumer associations, environmental associations, and digital regulation communities,93 which describe constitutional processes taking place rather than “beyond” the state, “below the radar.” Similarly commons movements, we argue, are not only sites for mobilizing civil society actors as new global constituents in a process of economic constitutionalism as described above, but are also sites of societal constitutionalism, of community based resistance for localized resource governance. As Michael Hardt explains in an interview, while the previous alter-globalization movements were nomadic, functional to mapping the nodes of economic power from the G8 to Seattle, Washington and Genoa; current occupation movements in contrast, which share the same fight again corporate greed and the negative effects of capitalism, are rooted in time and space for longer periods, which presents new opportunities for organization and alternative forms of governance.94 In fact, many commons communities in the commons movement as discussed above, especially throughout the Global South, rather than forming solely to protests like the occupy movement, are in fact reasserting the traditional form of resource governance under threat by state and corporate powers. The political economy scholarship of those like Elinor Ostrom have analyzed the commons in terms of “institutional design,” and commons property scholars are demonstrating that the commons themselves are systems of regulation; drawing upon both formal and informal sources of law, which determine the use, transfer and expropriation of common resources.95 While this scholarship on commons uses the language of “institutional design” as opposed to “societal constitutionalism,” the two approaches could learn from one another, as they similarly analyze civil society as a site for politics and sources of customary and informal law and regulation.

Civil constitutions are formed in underground evolutionary processes of long duration in which the juridification of social sectors also incrementally develops constitutional norms, although they remain as it were embedded in the whole set of legal norms. In the nation-state, the glare of the political constitution has been so blinding that the individual constitutions of the civil sectors have not been visible, or at best have appeared as part of political constitutions.

Taking a “societal constitutional” approach, the commons, are not only potentially contributing to a larger political constitutional process on national and supranational levels, but are also engaged as constituents in their own civil constitutional processes, acquiring constitutional characteristics through their practices. Law and law making in this context, takes place outside the designated liberal constitutional forms of law creation of legislatures and courts, and rather exhibit constitutional features produced by the internal regulations and governance institutions from within the associations themselves. While, it would be beyond the scope of the paper to explore the potentially constitutional features of each sub organization of the larger beni comuni movement in Italy (water, theater, labor, education, nature),97we offer one example of the Teatro Valle. The Valle much like the occupy movement, has adopted the decision making method of the “General Assembly” where decisions on programming, direction, funding, etc. are made through a process of “consensus” rather than by majority voting. Some of these meetings can go on for hours, even a whole day, but the organization is committed to the procedural rule that everyone must agree before a course of action is taken. While there is often disagreement, and not always is agreement wholehearted, the procedural rule commits the community to a deliberative process where all viewpoints, even the most marginal, are considered before a final decision. While the most marginal views are rarely adopted, the opportunity to air them transforms not only the substance of the decisions in form but also in quality, producing intense commitment from even those community members on the periphery of consensus to implement and sustain the decisions taken.98 In fact many commons scholars have noted similar deliberative processes in other commons communities, and such procedural structuring rules have been linked to the effectiveness of these communities to manage resources in a long lasting and sustainable way.99

In a debate, which took place last year between Antonio Negri and Gunther Teubner,100 Teubner poses the very question “Where is the potential space for social movements in its relation to global governance?”101 The point of intellectual tension between Negri and Teubner seem clearly the issue of the characterization of the “private” as “private property” and the danger of the “common” replacing the “public.”

While the “common” seeks to overcome the alienation of the private via collective activities and collective modes of attribution, the “public” tends to strengthen the space of open and democratic deliberation, which finds its different forms in each social field. Undoubtedly, common property has a powerful potential, which has been suppressed under the domination of neo-liberal policies of private property. But the choice between different attributions of property rights cannot be decided a priori on theoretical grounds in favor of the commons, but needs to be governed by public reflection processes within each sphere of life.

Would a turn to the “common” promote a regression into local tribalism, operating, as explained by property scholar Carol Rose, as a commons “inside” but as private property “outside,”103 effectively excluding users outside of the community to the resources controlled within. If we view the commons social movement as engaged in counter hegemonic uses of the law, then as Teubner suggests, whether the commons can remain “just” in their overthrow of the binary will depend on their ability “to thematise the restrictedness of their specialized perspective and to infer self limitations for their expansionist course of action.”104 The idea of a social constitutionalism of the commons is this very concept of the self limitation of the commons movement in their effort to limit the expansionist course of the economic sphere. This self limitation in the private civil sphere is accomplished through the natural plurality inherent in civil society. The plurality of actors that exist within the commons movement, unconstrained by the traditional public sphere and the liberal constitutional form freely pursue their own and often conflicting agendas. The thing that characterizes the commons are the commoners themselves, whom are as diverse as the wide spectrum of interests represented in society: labor pursues the interest of workers, environmentalist of nature, digital communities of their users and each one in turn generates a plurality of their own civil constitutions. Within the transnational commons movement we have been describing, there are many autonomous sites , autonomous not only in agenda but physically autonmous by geography: Indian farmers coordinating common seed banks, New Jersey trawlers their common fishing grounds, Thai communities their forest resources, the occupants of the Valle theater and so on. It is this very multiplicty of sites of societal constitutionalism within the commons movement, which promotes internally their own self limitation. All of these movements autonmous from one another, but linked together in their common struggle against predatory state and market actors. As Teubner states regarding societal constitutionalism, “The outcome is a multiplicity of independent global villages, each developing an intrinsic dynamic of their own as autonomous functional areas.”105 Activist Naomi Klein suggests the Zapatistas version:

The Zapatistas have a phrase for this. They call it “one world with many worlds in it”. Some have criticized this as a New Age non-answer. They want a plan “We know what the market want to do with those spaces, what do you want to do? Where’s your scheme?” I think we shouldn’t be afraid to say: “That’s not up to us.” We need to have some trust in people’s ability to rule themselves, to make the decisions that are best for them. We need to show some humility where now there is so much arrogance and paternalism. To believe in human diversity and local democracy is anything but wishy-washy. Everything in McGovernment conspires against them. Neoliberal economics is biased at every level towards centralization, consolidation, homogenization. It is a war waged on diversity. Against it, we need a movement of radical change, committed to a single world with many worlds in it, that stands for “the one no and the many yesses.”

In addition, to the natural plurality of commons actors and site, which promotes its own self limitation, the commons as Klein points out, stands exactly for the notion of self-limitation. The commons is the rejection of a “one size fits all solution” or as Klein calls “McGovernment.” The commons movement is the promotion of the very idea of limitation through diverse, localized, and contexturalized solutions. In fact it is the uber-autonomy and contextural nature of the commons, which presents a tremendous challenge for unity as a transnational social movement, however it is exactly this type of unity within fragmentation that the world needs to promote real alternatives to the “centralizing, consolidating, and homogenizing” effects of neoliberalism. A transnational social movement of the commons, which provides engagement between the many worlds; the interaction serving not only to limit the possibly destructive tendencies of each site of societal constitutionalism, but contributes to a truly bottom up deliberative process to challenge the imposition of economic constitutionalism from above.

CONCLUSION

The common goods movement in Italy is a powerful example of the way in which social movements are emerging as the new “pouvoir constituant” in a top down and undemocratic process of economic constitutionalism imposed by international economic institutions. They are proving on both national and supranational levels that civil society actors are a potent source of constituent power to both enforce national constitutional protections of the public through counter hegemonic uses of the law and also at the transnational level, where they are forming global networks capable of not only negotiating with corporate power directly but also to influence the top down economic constitutionalism imposed from above by the WTO and “troika.” Social movements are expanding our notion of the public sphere and politics, giving new meaning to the slogan “the personal is political.” Commons social movements are not only sites of political protest outside of traditional political arenas, but also sites of societal constitutionalism, producing alternative forms of resource governance and management, which provide not just theoretical but empirical challenges to the assumption of private property and the developmental state which underpins the liberal constitutional form. In order to promote a truly pluralist and open vision of constitutionalism which renews the constituent power of the multitude, there must be full recognition that the two fundamental institutions of current capital accumulation: the sovereign State and corporate private ownership, which share a model of concentration of power and of exclusion that has incrementally squeezed the public interest outside of constitutional law by an imbalance favoring the guarantees of private property over those of democracy. Restoration of the democratic constitutional fabric is a constituent action as long as the struggle for the commons is rooted in a democratic practice of a multitude with the purpose of restoring the interest of the people over that of profit. In Italy for instance, constitutional protections are clearly available in a number of highly advanced and mostly unimplemented (Art. 9 and art 43) provisions of the 1948 Constitution, most fundamentally in Article 3 and Article 42. Given the failure of representative government and state politics, it is up to civil society groups like the beni comuni movement to reclaim their constituent role in enforcing the constitution and reasserting the role of popular sovereignty. The constituent struggle for the commons aims at producing a new common sense by exposing the contradictions of the state-private property dualism that colonized the modern imagination and which underpins the modern liberal constitutional form. There can be no constituent effort, nor liberation from corporate greed, outside of a radical critique of private property rights. The commons social movement being actually engaged in the practices and production of alternative property configurations may offer new hope in this direction. A social movement of the “many worlds,” the many sites of societal constitutionalism of the commons, linked together in a global network, could provide us with a truly bottom up constitutional and deliberative process capable ofof reversing the progressive transfer from the commons to the private on local, national and global levels, giving renewed relevance to the concepts of “constituent power” and “popular sovereignty.”