For me it came at about the age of seven or eight, when I was outside with my father watching a large flock of starlings fly past. “That’s a big flock of birds,” I said.

My father told me then about the passenger pigeon, whose flocks once filled the skies, so vast that they stretched from horizon to horizon for days on end. “They are extinct now,” he told me. “People would just point their guns to the sky and shoot randomly, and the pigeons would fall. Now there aren’t any left.” Of course, I’d known about the dinosaurs before then, but that was the first time I really understood what the word “extinct” means.

I cried in my bed that night, and many nights thereafter. That was when I still knew how to cry – a capacity that, once extinguished through the brutality of teenage boyhood in the 1980s, was nearly as hard to resuscitate as it would be to bring the passenger pigeon back to Earth.

Species extinction did not end with the 19th century. The fate of the passenger pigeon foreshadowed the calamity that is now overtaking all life on this planet, a calamity that has left none of us untouched. I recently made the acquaintance of a farmer here in North Carolina, I’ll call him Mike, a man of the earth whose family has been here for three hundred years. His thick accent, increasingly rare in this age of mass media-induced linguistic homogenization, suggested conservative “Southern values.” Indeed, he was full of bitterness, though not against the usual racial or liberal suspects; instead he launched into a tirade about the guvmint, chemtrails, the banks, the “sheeple,” the 9-11 conspiracy, and so on. “We the people have got to rise up and smash them,” he said, but it was leaden despair, not revolutionary fervor, that colored his voice.

Tentatively, I broached the idea that the perpetrators of these crimes are themselves imprisoned in a world-story in which everything they do is necessary, right, and justified; and that we join them there when we adopt the paradigm of conquering evil through superior force. That is precisely what motivates the technologies of control, whether social, medical, material, or political, wielded by those we would overthrow. Besides, I said, if it comes down to a war to overthrow the tyrants, if it comes down to a contest of force, then we are doomed. They are the masters of war. They have the weapons: the guns, the bombs, the money, the surveillance state, the media, and the political machinery. If there is hope, there must be another way.

Perhaps this is why so many seasoned activists succumb to despair after decades of struggle. Dear reader, do you think we can beat the military-industrial-financial-agricultural-pharmaceutical-NGO-educational-political complex1 at its own game? In this book I will describe how the modern environmental movement, and most especially the climate change movement, has attempted just that, not only risking defeat but also quite often worsening the situation even in its victories. Climate change is calling us to a deeper kind of revolution, a different kind of revolution, a revolution that will be unstoppable.

Mike wasn’t understanding me. He is an intelligent man (as most farmers are), but it was as if something had possessed him; no matter what I said, he would pick up on one or two cue words to pour forth more bitterness. Obviously, I wasn’t going to “defeat the enemy” by force of intellect, enacting the very same paradigm I was critiquing. When I saw what was happening, I stopped talking and listened. I listened, not so much on a conceptual level, but to the voice beneath the words and to all that voice carried. Finally I asked him the same question I am asking you: “What made you into an environmentalist?”

That is when the anger and bitterness gave way to grief. Mike told me about the ponds and streams and wild lands that he hunted and fished and swam and roamed in his childhood, and how every single one of them had been destroyed by development: cordoned off, no-trespassed, filled in, cut down, paved over, and built up.

In other words, he became an environmentalist in the same way that I did, and, I am willing to guess, the same way you did. He became an environmentalist through experiences of beauty and grief.

“Would the guys ordering the chemtrails do it, if they could feel what you are feeling now?” I asked.

“No. They wouldn’t be able to do it.”

* * *

It has been quite a process, my foray into writing a new book. I solicited support on Patreon (to crowdfund my writing sabbatical) and was moved by how many people responded. But then I felt constrained to produce something tangible, right away, otherwise I’d be letting them down. I felt like a schoolboy with an assignment due. Predictably, what I wrote in those circumstances was garbage. Then the fatigue hit me — the fatigue built up from years of intense travel and speaking. I descended into a surrendered space and basically let go of the book. It was only then that the material I’ve excerpted above came to me. The book, whose working title is “The Revolution is Love,” aims to bridge the spiritual and political dimensions of environmentalism, environmental justice, and particularly climate change.

Even when I gave up on the book, it didn’t give up on me, and neither did my supporters near and far.

At this point, I’m taking it slow, conserving and rebuilding, and trusting the writing process. That’s easy when the material is flowing; harder when that process means to write nothing for days or weeks, but rather to read, meditate, be with children, nourish my health… I’m getting over the habit of always needing to be producing something measurable. (That’s the basis of the current economic paradigm, after all, which drives the wrecking of the planet.) More and more of the quantifiable, less and less of the sacred. This time I’m taking another approach. I hope it is working. I think the book will have a lot of stories, weaving back and forth between personal and political, spiritual and systems levels.

I want to thank everyone who follows my blog and my podcasts.  That support is really important. You have been giving all along, spreading the work I do and the ideas which all of us serve.

Photo by tonnoro

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How can we construct a right to a healthy and clean environment that is enforceable in today’s complex international legal order? What legal construct would be visionary and ambitious enough to meet the urgent need for environmental justice and protection and at the same time be enforceable in court rather than fall into the category of ‘soft law’?

Femke Wijdekop

Wijdekop answers these questions in an essay, “A Human Right to Commons- and Rights-based Ecological Governance:  the key to a healthy and clean environment?” The legal analysis was published by the Earth Law Alliance, a group of lawyers organized by British lawyer Lisa Mead who advocate an eco-centric approach to law.

Wijdekop’s piece draws upon some of the ideas in my book with Burns Weston, Green Governance in arguing for “procedural environmental rights to establish, maintain, participate in, be informed about and seek redress for ecological commons.”  She has presented these ideas to international lawyers and constitutional scholars in The Hague, and is now reaching out to environmentally minded lawyers.

Here is the case for the commons as a new system of governance to protect the environment:

[The commons is] a dynamic governance system that leverages cooperation, bottom-up energies and local knowledge in service to the preservation and sustainable allocation of Earth’s natural resources. The distributed, flexible system of commons governance can more closely track the dynamic, complex realities of natural ecosystems than top-down bureaucratic systems typically do. Top down systems are more rigid and unable to adapt to the evolving circumstances of an ecosystem. They also tend to marginalize or override local knowledge and participation and bolder the interests of political elites who dominate the governance process. Commons governance on the contrary uses the creativity, energy and knowledge of the locals, channeling them into a supportive structure for synergy and innovation.

Wijdekop agrees that a procedural right to common – to access to the resources vital to one’s survival through a working commons – would offer an attractive alternative to the performance failures of nation-states and international treaty organizations.  She concludes that varieties of commons “would be rooted in a well-established social practice that is currently going through a resurgence all over the world. It has a rich legal tradition dating back to Roman times, yet is visionary and futuristic enough to accommodate emerging environmental harms and the legal responses needed to counter those harms. It would not only protect living commoners, but future generations and the rights of Earth herself as well. Because of its flexible and organic nature, the right to commons-and rights-based ecological governance could be tailor-cut to work for local commons and global commons such as the sky, the oceans or the atmosphere alike.”

Needless to say, I’m thrilled to Wijdekop has taken up the commons as a way to assert an “an ‘expansive’ human right to the environment that is resilient and enforceable.”

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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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