This is the third of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press.  The essays originally appeared on CSRWire.  I am re-posting them here to introduce the paperback edition, which was recently released. This extract was originally published in bollier.org

In the previous two essays in this series, we outlined our approach to Green Governance as a new model or paradigm for how we can relate to the natural environment. We also stressed how “Vernacular Law” – a kind of socially based “micro-law” that evolves through commons activity (“commoning”) – can establish legitimacy and trust in official state law, and thereby unleash new sorts of grassroots innovation in environmental stewardship.

In this essay, we explore another major dimension of the large shift we are proposing: how human rights can help propel a shift to Green Governance and thereafter help administer such governance once achieved.

Nothing is more basic to life than having sustainable access to food, clean air and water, and other resources that ecosystems provide. Surely a clean and healthy environment upon which life itself depends should be recognized as a fundamental human right.

The Importance of Human Rights

• Human rights play a significant role here because they signal a public commitment to human dignity and basic needs, for which environmental well-being is clearly prerequisite.
• Human rights trump most other legal obligations because they are juridically more elevated than commonplace “standards,” “laws,” and other policy choices.
• To assert human rights is to challenge state sovereignty to respect certain basic principles and go beyond the parochial agendas of private elites. Human rights enable rights-holders to assert high-level entitlements; they empower legally and politically as well as morally.

The State/Market Duopoly Impedes Human Rights

Unfortunately, the ambitious project to advance environmental human rights has foundered because, in the present geopolitical order, it has been made to depend on the close alliance of the State and Market – what we call the “State/Market duopoly” – to vindicate its principles.

The human right to a clean and healthy environment can be conceived in essentially three different ways:

1. As an entitlement derived from other recognized rights (such as the right to life, to health, and to respect for private and family life);
2. As a legal entitlement autonomous unto itself; or
3. As a cluster of procedural entitlements (such as the right to environmental information and participation in administrative hearings and decisions).

But however construed, the right has limited official recognition and jurisdictional reach.

History has shown that investors, corporations, and their political allies are not eager to embrace innovative legal principles that might constrain their prerogative to use – and abuse – our shared natural resources for private gain.

Courts Reluctant to Support Robust Interpretations of Human Rights

What is more, formal jurisprudence tends to rely on precedents that often are relics of preindustrial era norms, or to focus on their limited geographic jurisdictions even if the environmental problems are transnational.

Additionally, courts are understandably wary of appearing to make political judgments, so they tend to defer to legislatures and executive branches, which are commonly beholden to wealthy special interests.

Further, with so many scientific uncertainties surrounding environmental problems, it is far easier for courts to focus on procedural issues and avoid the substantive ones and the hard choices they raise.

Not surprisingly, therefore, the laws enacted by legislatures and declared by courts continue to allow abusive environmental practices – especially by large corporations – notwithstanding their harm to basic human rights.

Efforts to Protect the Environment Hit the Wall

This situation is not likely to change within the current framework of international law and ecological governance – and most people see no viable alternative to the existing legal regime. Which leaves us at an impasse: unable to protect either our environment or our basic human needs through our legal systems and unable to imagine an overhaul of the current regulatory framework or a radical shift from it.

Let us be blunt: neither the State nor the Market has been very successful at setting limits on market abuses and excesses because ultimately neither really wants to. Setting limits could diminish economic growth, tax revenues and “progress.”

Despite many valiant efforts by various environmental and human rights organizations, these realities impede the quest for a more robust human right to a clean and healthy environment. One might even say that such efforts have “hit a wall” in terms of making significant progress.

The Human Right to Green Governance

And this is why we propose not just a new commons- and rights-based model of ecological governance, but a fundamental human right to such governance, as well. We call it the human right to Green Governance, which is, in essence, a recalibrated human right to a clean and healthy environment.

Two Alternatives: Intergenerational Rights and Nature’s Rights

Some environmental advocates – frustrated by the resistance of neoliberal economics, policy and law – have in recent years developed two innovative approaches to advancing the human right to environment.

The first approach focuses on the environmental rights of future generations; the second on the “rights of nature.”

The claim is made, for example, that future generations ought to be entitled to the same quality of air, water and soil as we and previous generations have enjoyed. “Nature’s rights” have been proposed as a way to formally grant nature protective rights of its own, and so put it on the same legal footing as individuals, governments, and corporations.

Ecuador incorporated such provisions into its constitution in 2008, and Bolivian President Evo Morales also has been an ardent advocate of nature’s rights in his country and at the United Nations.

Legal Obstacles to Environmental Rights

Both of these approaches – nature’s rights and intergenerational rights – go beyond the narrow anthropocentrism of existing law and try to develop a more biocentric, holistic approach. Unfortunately, courts have been reluctant to adjudicate these rights for various technical reasons.

For example, even though the idea of intergenerational rights is sound as a matter of legal theory, it is handicapped by a culture of modernity that prioritizes the present and thus relies heavily on moral appeal for its acceptance. In both instances, it is not self-evident who is the most appropriate legal representative of future generations or nature.

Apart from such surmountable issues, the real impediment is that any forthright recognition of nature’s rights would disrupt existing legal norms and spark great political controversy: a scenario that courts are not prepared to instigate. Both legal theories seek to persuade the existing State/Market regulatory system – which is fundamentally responsible for most of the environmental damage that threatens our collective future – to voluntarily abandon its core legal premises.

While intergenerational rights and nature’s rights are a constructive set of positive legal principles – if only because they spur public conversation about the inadequacies of existing law – they are not likely to produce the kinds of dramatic environmental improvements that we need.

Advancing Human Rights through Commons-Based Governance

How, then, might we proceed? We believe that the human right to a clean and healthy environment can still be a powerful tool for imagining – and implementing – a new system of ecological governance that serves everyone.

But advancing this vision will require that we go beyond conventional understandings of law and how it is formulated and enforced – the formal law of State-based institutions. We must begin to construct a new architecture of law and policy, one that will enable societies around the world to alter their governance of human activities, especiallyeconomic ones.

In our next essay in this series, we will set forth our proposal to elevate the Commons as a new model for ecological governance – and a new species of law that draws upon well-established legal principles. We believe that the Commons can serve as an holistic, integrated platform for a new paradigm of law and policy that could help secure a clean, healthy, biodiverse and sustainable environment.

The basic goal is to move toward new types of social practices, material provisioning and environmental stewardship as a way to give more substantive meaning to human rights. We immodestly believe that this may be the only way to bring the law of humankind into greater alignment with the laws of nature.

This essay is adapted from Green Governance: Ecological Survival, Human Rights, and the Law of the Commons, by Burns H. Weston and David Bollier Copyright © 2013 Burns H. Weston and David Bollier. Reprinted with the permission of Cambridge University Press.

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This is the second of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  The essays originally appeared on CSRWire. This extract was originally published in bollier.org

Is it possible to solve our many environmental problems through ingenious interventions by government and markets alone? Not likely. Apart from calls for eco-minded behavior (recycle your cans, insulate your house), ordinary citizens have been more or less exiled from environmental policymaking.

The big oil, coal and nuclear power companies have easy access to the President and Congress and expert lawyers and scientists have privileged seats at the table. But opponents of, say, the Keystone Pipeline are mostly ignored unless they get arrested for protesting outside of the White House.

A New Kind of Law to Underpin the Commons

That’s why we believe it’s important to talk about a “new” category of law that has little recognition among legislators and regulators, judges and lobbyists. We call it “Vernacular Law.” “Vernacular” is a term that the dissident sociologist Ivan Illich used to describe the informal, everyday spaces in people’s lives where they negotiate their own rules and devise their own norms and practices.

In our last essay, we introduced the idea of commons- and rights-based governance for natural ecosystems. We turn now to Vernacular Law because its matrix of socially negotiated values, principles and rules are what make a commons work.

Vernacular Law originates in the informal, unofficial zones of society – the cafes and barber shops, Main Street and schools, our parks and social networking websites. What emerges in these zones is a shared wisdom and a source of moral legitimacy and authority. Colonial powers frequently used their formal law to forcibly repress the use of local languages so that their controlling mother tongue could prevail.

Formal Law and the Will of the People

The truth is that States often find Vernacular Law threatening. But on the other hand, what government can possibly govern without the consent of it, also known as “the street?”

There is an implicit struggle in any modern state between State Law and Vernacular Law. Wise political leaders learn that it is best to acknowledge the relationship between the two, and to provide channels for Vernacular Law to flourish and influence State Law.

Vernacular Law is important because it can act as a corrective to formal, organized legal systems. When these formal systems “yield discrepancies between what people want and what they can expect to achieve, macrolegal changes may not be effective,” says Yale law scholar Michael Reisman. “Microlegal adjustments may be the necessary instrument of change.”

A government cannot govern without the “hearts and minds” of the people.

Reisman notes, that “in everyone’s life, microlaw has not only not been superseded by state law, but remains . . . the most important and continuous normative experience.” The social protocols that people develop in a given societal setting constitute an undeniable form of law. In some respects, they are far more powerful than anything enacted by Congress or enforced by courts.

Trent Schroyer, a student of Ivan Illich’s, describes the “vernacular domain” as a “sensibility and rootedness . . . in which local life has been conducted throughout most of history and even today in a significant proportion of subsistence- and communitarian-oriented communities.” Vernacular domains are those “places and spaces where people are struggling to achieve regeneration and social restoration against the forces of economic globalization.”

Examples of Vernacular Law

Consider three relatively conspicuous examples of Vernacular Law: the canons of the church, the rules of the sporting field and the codes of social etiquette. At the other extreme, Reisman includes “looking, staring and glaring,” “standing in line and cutting in,” and “rapping and talking to the boss.”

Somewhere in between there exists a seemingly inexhaustible number and variety of Vernacular Law systems, each with its own protocols for what is acceptable and unacceptable, what constitutes a sanction, and other rules for negotiating relationships.

Vernacular Law can be seen in the management of indigenous communities, peasant collectives, farmers’ markets, businesses and factories, inter-business dealings (e.g., “gentlemen’s agreements”), specialized trades (e.g., magicians’ secrets, bakers’ recipes), and countless other circumstances.

The Internet and Vernacular Law

Perhaps the most salient arena for Vernacular Law today is the Internet, a great hosting infrastructure for countless digital commons. As the Internet has exploded in scope and become a pervasive cultural force around the world, so Vernacular Law – self-organized, self-policing community governance – has become a default system of law in many virtual spaces (notwithstanding the lurking presence of State Law or corporate-crafted law that may enframe these commons).

For millions of “digital natives” using the Internet, Vernacular Law is the most natural, familiar, mode of governance imaginable. It is the “real world” institutions – Congress, the courts, large corporations – that are bizarrely complicated, unresponsive, archaic and/or corrupt.

We need to recognize and validate Vernacular Law so that it can begin to make formal, official law more responsive and protective of our natural ecosystems. In a time when State Law has become captive of large industries and market interests, Vernacular Law serves a vital function as an evolving, communicative life pulse.

Custom to Counter Corporate Capture

The people’s deep will is often expressed eloquently and durably through their customs. Yale property law professor Carol Rose has noted that custom is “a medium through which a seemingly ‘unorganized’ public may organize itself and act, and in a sense even ‘speak’ with the force of law…” Internet communities often have their own “netiquette” and FAQs to express their customs and ethos. The Magna Carta is so renowned because it put down in writing for the first time the many customary practices that people had, and elevated them into rights.

“Over time,” Professor Rose writes, “communities may develop strong emotional attachments to particular places and staging particular events in those places… ”

Medieval courts were known to elevate custom over other claims, as when they upheld the right of commoners to stage maypole dance celebrations on the medieval manor grounds even after they had been expelled from tenancy.

Courts have been uneasy with the idea of informal communities as a source of law because they are not formally organized or sanctioned by the State, and courts themselves are generally creatures of the State. As one court put it, claims of traditional rights are “forms of community unknown in this state.” But as Rose notes, this is precisely why customary law is such a compelling and authoritative substitute for government-made law; it reflects the people’s will in direct, unmediated ways.

Vernacular Law as Antidote to Dysfunction

It is especially important to recognize Vernacular Law today—a time when the State has become captured and corrupted. The State and Market have become so intertwined and collusive that they often fail to carry out their own legal obligations to citizens and the environment.

The best antidote lies in Vernacular Law and the moral authority and legitimacy that it provides, particularly when it is faithful to the fundamental principles of international human rights. We make this extended case for Vernacular Law because it lies at the heart of the commons, and commons-based forms of governance hold out great hope for improving our society’s stewardship of natural systems. They provide a means by which an otherwise unorganized public can express itself and order its affairs, and even do so authoritatively.

What remains is for State Law to recognize the value of Vernacular Law as a tool to renew and rehabilitate itself.

This essay is adapted from Green Governance: Ecological Survival, Human Rights, and the Law of the Commons, by Burns H. Weston and David Bollier Copyright © 2013 Burns H. Weston and David Bollier. Reprinted with the permission of Cambridge University Press.

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Professor Burns Weston and I recently published a series of six essays on CSRWire(CSR = “Corporate Social Responsibility”) that were derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  

The book – an outgrowth of the Commons Law Project — is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment.Green Governance opens the door to a new set of solutions by proposing new types of environmental protection based on broader notions of economics and human rights and on commons-based governance. At the heart of the book is a new architecture of environmental law and public policy that is theoretically innovative, but also quite practical.

The paperback edition was recently released, making it available to a much larger readership.  To introduce the book to people who may have missed it the first time around, I am posting the original six CSRWire essays by Burns and me over the course of the next week.  I hope you enjoy them!  — David

At least since Rachel Carson’s Silent Spring, we have known about humankind’s squandering of nonrenewable resources, its careless disregard of precious life species, and its overall contamination and degradation of delicate ecosystems. Simply put, the State and Market, in pursuit of commercial development and profit, have failed to internalize the environmental and social costs of their pursuits. They have neglected to take measures to preserve or reproduce the preconditions of capitalist production – a crisis now symbolized by the deterioration of the planet’s atmosphere.

Despite the scope of the challenges facing us, there are credible pathways forward. In our recent book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, we propose a new template of effective and just environmental protection based on the new/old paradigm of the commons and an enlarged understanding of human rights. We call it “green governance.” It is based on a reconceptualization of the human right to a clean and healthy environment and the modern rediscovery of the age-old paradigm of the commons.

The Commons as Governance Model

The Commons is a regime for managing common-pool resources that eschews individual property rights and State control. It is a system of governance that relies on common property arrangements that tend to be self-organized and enforced in complex and sometimes idiosyncratic ways (which distinguish it from communism, a top-down, State-directed mode of governance whose historical record has been unimpressive). Today the commons can be seen in such diverse resources as the Internet, rural forests, fisheries, town squares, universities and community life.

A commons is generally governed by what we call Vernacular Law – the “unofficial” norms, institutions and procedures that a peer community devises to manage its resources on its own, and typically democratically. State law and action may set the parameters within which Vernacular Law operates, but the State does not directly control how a given commons is organized and managed.

In its classic form, a commons operates in a quasi-sovereign way, similar to the Market but largely escaping the centralized mandates of the State and the logic of Market exchange. By mobilizing decentralized participation on the ground, commons could become important vehicles for assuring a right to environment at local, regional, national and global levels. Moving in this direction, however, will require innovative legal and policy norms, institutions and procedures to recognize and support commons as a matter of law.

Re-imaging Stewardship of Natural Resources

In this CSRwire series drawing upon our book Green Governance, we outline our vision for re-imagining governance and stewardship of natural resources. Our premise is that human societies will not succeed in overcoming our myriad eco-crises through better green technology or economic reforms alone. We must pioneer new types of governance that allow and encourage people to develop qualitatively different types of relationships with nature itself and, indeed, with each other. An economics and civic polity that valorizes growth and material development as the precondition for virtually everything else is ultimately a dead-end—literally.

A Practical Governance Paradigm

We must therefore cultivate a practical governance paradigm based on:

• An ethic of respect for nature, sufficiency, interdependence, shared responsibility and fairness among all human beings; and,
• A logic of integrated global and local citizenship that insists on transparency and accountability in all activities that affect the integrity of the environment.

We believe that commons- and rights-based ecological governance – “ green governance” – can fulfill this ethic and logic. Properly done, it can move us beyond the neoliberal State and Market alliance (what we call the “State/Market”), an intimate collaboration that is chiefly responsible for the current, failed paradigm of ecological governance.

Commons, State & Market

A new Commons Sector, operating as a complement to the State and Market, could reinvent some of the fundamental ways that we orient ourselves to, and manage, natural ecosystems. It could give rise to new institutional forms, legal principles, socioecological management practices, economic thinking and cultural values.

Our vision of green governance does not call us back to communism or socialism, nor rally us to utopian eco-anarchism. We believe that the pursuit of a clean and healthy environment through commons- and rights-based ecological governance is a feasible extension of existing models and trends — but one that will require some challenging transformations.

Myths to Overcome

At the moment, transformation is essentially blocked because any serious agenda for change must genuflect before a series of sacrosanct dogmas – that law is exclusively a function of the State; that markets and corporations are the primary engines of value creation and human progress; that governments generally impede innovation and efficiency; that the private accumulation of capital must not be constrained; and that ordinary people have few constructive roles to play in the political economy except as consumers and voters.

These structural premises limit the scope of what is perceived as possible, and they are backed by powerful economic and political interests, Big Oil and Big Coal perhaps most prominent among them.

Commons-based Trends Reason for Hope

But we see practical reasons for hope. Insurgent schools of thought in economics and human rights are expanding our sense of the possible. At the same time, a worldwide commons movement is arising in diverse arenas to assert new definitions of value and to challenge the contemporary neoliberal economic and political order.

New modes of commons-based governance are being used to manage agricultural seeds, groundwater, urban spaces, creative works, Internet-based knowledge and a wide variety of natural ecosystem resources.

If one attends to many commons-based trends now on the periphery of the mainstream political economy, one can begin to glimpse a coherent and compelling new paradigm — one that addresses many serious deficiencies of centralized governments (corruption, lack of transparency, rigidity, a marginalized citizenry) and concentrated markets (externalized costs, fraud, relentless economic growth). We consider countless commons-based regimes, both new and ancient, to be building blocks for a new paradigm of principled and effective ecological governance.

Can Commons Be the Basis for System-wide Change?

It is fair to wonder whether commons — historically small-scale, decentralized systems — can be the basis for a larger, macro-solution. We believe they can so long as we develop a new legal and policy architecture that recognizes and supports the nesting of authority and control at different levels of governance (often known as “subsidiarity”).

But we could as plausibly turn the question around: can any top-down, macro-solution succeed without genuine engagement with decentralized, participatory, self-organized systems? We think not. There is too much resentment around the world against State authority experienced as illegitimate, and the simple incompetence of State institutions in dealing with decentralized complexity.

In subsequent essays, we hope to explain in greater detail how the general framework and discourse of Green Governance could open some compelling pathways – economically, politically and culturally – for societal transformation.

This essay is adapted from Green Governance: Ecological Survival, Human Rights, and the Law of the Commons, by Burns H. Weston and David Bollier, Copyright © 2013 Burns H. Weston and David Bollier. Reprinted with the permission of Cambridge University Press. This extract was originally published in bollier.org

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