“This insight can help us imagine and build a new “ecolegal order” that has three strategic objectives, they argue: to disconnect law from power and violence (by reconfiguring the nation-state’s authority); to make communities sovereign (by empowering commons); and to make ownership generative (by integrating property rights with stewardship responsibilities). An eco-friendly legal order would recognize the holistic perspectives of commons in integrating costs and risks that market economies strive to externalize onto nature, communities and future generations.”
Book: Fritjof Capra and Ugo Mattei. The Ecology of Law, 2015
David Bollier reviews the argument for a law of the commons:
“State law is largely philosophically hostile to, or simply noncomprehending of, the very idea of commons and commoning. Civil law as administered by the state is focused on individual, private property rights and market exchange; it is structurally focused on “things” in isolation from dynamic social relationships, history, culture and ecosystems. The struggle to inscribe a “commons-based law” within the edifice of conventional state law is therefore an ambiguous or paradoxical challenge; some say it is impossible.
And yet it is absolutely needed because the nation-state is suffering a decline in legitimacy and efficacy as global capital becomes even more powerful, and as the scale and complexity of problems outstrip the capacity of corporate and governmental bureaucracies to solve them. Many people are starting to realize that the profound problems of modern life cannot be rectified by using the tools and mindset of modernity.
The physicist Fritjof Capra and law scholar Ugo Mattei recently shed light on this problem in their 2015 book, The Ecology of Law, which sees the history of law as an artifact of the scientific, mechanical worldview.
Capra and Mattei argue that we must transcend this legacy if we are to overcome many contemporary problems, particularly ecological disaster. They criticize modern state law because it privileges the individual as the principal agent despite the harm that this produces for the collective good and ecological stability. Law also presumes that the world can be governed by simplistic, observable cause-and-effect, mechanical relationships, ignoring the more subtle dimensions of life, especially the power of human subjectivity, caring and meaning. Capra and Mattei note the important parallels between natural science and jurisprudence over the course of history. Both science and law, for example, reflect shared conceptualizations of humans and nature articulated by John Locke, Francis Bacon, Rene Descartes, Hugo Grotius and Thomas Hobbes. All of them saw a cosmological order that is rational, empirically knowable, and governed by atomistic individuals and mechanical principles. This worldview continues to prevail in economics, social sciences, public policy and law.
The Ecology of Law explains how this understanding of the world prevents us from effectively addressing our many ecological catastrophes, and how jurisprudence as now conceived is a key part of the problem. Modernity is based on the sanctity of private property and state sovereignty, write Capra and Mattei. It is an order that presumes to be an “objective,” natural representation of reality, and that regards distinctions such as “private” and “public,” and “individual” and “collective,” as self-evident descriptions of reality.
Any practicing commoner knows that this is a highly reductionist and misleading way of understanding the world. In actual experience, individuals are nested within collectives, and they develop and flourish as individuals only through cooperating with others. Similarly, subjective experience and objective fact are not isolated and separate; they blur together. The either/or divisions of modernity function as a kind of consensual social fiction, with law affirming and enforcing these (misleading) categories of thought. For example, modern law presumes that if there is no external limit imposed on an individual citizen, each should be free to act as a “rational actor” to extract as much from nature as he/she wishes. This is presumed to improve upon nature, create value and advance human progress. In the modernist worldview that law embodies, individuals are imagined as the primary agents of change, and as isolated agents without history, social commitments or context. This gives individuals permission to be self-regarding and hedonistic in the face of collective and ecological needs – a capitalist-libertarian delusion that is celebrated and defended.
Imagining a post-capitalist future, then, is not simply about passing a new law or instituting a new set of policies. It requires that we confront our deep assumptions about worldview as embodied in law. What we need, Capra and Mattei argue, is a major paradigm shift in science and law that reflects a different understanding of nature and human beings. Instead of seeing the Earth and human societies as a machine of parts, we must see them as a holistic, indivisible ecological system: the world as a network of interdependencies. Law is not something that exists independently “out there” as an objective reality. It is a socially constructed order – a power that we must reclaim. “Law is always a process of commoning,” Capra and Mattei write, reminding us that law originates in social practice and norms; it emerges from communities of commoners. This insight can help us imagine and build a new “ecolegal order” that has three strategic objectives, they argue: to disconnect law from power and violence (by reconfiguring the nationstate’s authority); to make communities sovereign (by empowering commons); and to make ownership generative (by integrating property rights with stewardship responsibilities). An eco-friendly legal order would recognize the holistic perspectives of commons in integrating costs and risks that market economies strive to externalize onto nature, communities and future generations.”