Saki Bailey: In 2009, political economist Elinor Ostrom won the Nobel Prize in economics for her work demonstrating that “the commons” are not simply unregulated spaces of ruin, but instead places where the law operates invisibly, according to community norms and values in ways that lead to their sustainable use over many generations. What Ostrom’s work revealed is that the “invisibility” of law and legal governance in the commons was the result of a bias in favor of private property as the optimal form of governance of scarce resources.

While Ostrom’s work revealed that legal relations governing resources invisibly structure the commons, what those legal relations in fact reveal is our social and economic relations about resources: Who makes what? How much of what? And who gets what?

In the commons, the answers to these questions are embedded in a social logic according to community norms and values. In market societies, the source of these answers are to be found in the non-social economic logic of capitalism. The catalyst for this non-social economic logic, according to social theorists like Karl Polanyi and others, was the separation of people from their means of subsistence through the enclosure of the commons: throwing people off their land, separating them from the basics of life — food, water, and shelter — and charging rent for access. In the feudal commons, access to the means of subsistence was guaranteed by one’s inclusion and social status in a community and territory. In the transition to market economies, one’s subsistence became a matter of one’s ability to pay rent and/or labor for a wage. This new system unleashed a logic of competition for productive land and work, the accumulation of capital to reinvest into labor and time saving technologies, and the expansion of instrumental relations and commodification into every space and sphere of life.

As Polanyi said: “Instead of economy being embedded in social relations, social relations are embedded in the economic system.” Or to put it simply, instead of profit serving the needs of people, people came to serve the needs of profit. Polanyi’s optimistic outlook was that through property, welfare and finance regulation — through law — the market could be embedded once again to serve human and social purposes.

So, from this perspective, law is a tool for lawyers, judges, legislators, and most importantly citizens, to wield against the market, to combat the inequities that it produces in its unfettered wake-both top down and bottom up. And law can be utilized beyond property, welfare, and finance law to other domains. Law can be used towards decommodifying our means of subsistence by guaranteeing access to fundamental resources that are crucial to human life, both top down, by naming things like healthcare, education, and housing (just to name a few) as a right, to which access should be guaranteed, but also from the bottom up, by changing the structure of property and contract entitlements, for instance to allow for simultaneous use of shared resources, and curb unrestricted transfer rights. Law can also be used to reorganize work away from wage labor and towards workers’ ownership, by enacting through legislation the recognition of new legal entities like the Cooperative Corporation or the B Corporation that place non-market values at their center, or bottom up through the creation of workers cooperatives (a rapidly growing movement throughout the world). Law can also be used to alter the structure of intellectual property rights in ways that encourage sharing, collaboration, and innovation, top down by policymakers refusing to create certain kinds of property rights in these resources, but also bottom up through legal innovation and resistance through individuals adopting the Creative Commons license or “copyleft” policy over other proprietary forms of copyright.

In this new series on Shareable, “Law: The invisible architecture of the commons,” we will showcase new and emerging legal institutions that offer an alternative system of incentives for encouraging cooperation, sharing, and sustainability. These legal institutions demonstrate how citizens, working together with lawyers and policymakers, can successfully design legal institutions for themselves to decommodify our access to fundamental resources, alter the wage labor relationship through new types of legal entities, and create new ways of stimulating ownership, innovation, and collaboration around knowledge goods.

Cross-posted from Shareable

Photo by Sinéad McKeown

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