This was the question posed recently by David Bollier, a policy strategist, activist, and a leading voice in the commons movement.

In an effort to find the answer, Bollier and his colleague Anna Grear, a law professor at Cardiff University, connected with a number of people about the “positive, practical steps that anyone can take in dealing with the terrible challenges of our time.”

One result of their efforts is the short film, Re-imagine the Future (below), which features conversations with international law professors, human rights advocates and activists who participated in the Operationalising Green Governance workshop outside of Paris earlier this year.

The film serves to inspire, inform and remind us that “new ways of thinking, acting and being are urgently needed.” It points to commoning, and the need to involve the planet in all of our decisions, as a central piece of the solution.

As Richard Falk, Professor Emeritus at Princeton University says in Re-imagine the Future, “[T]he unregulated way the world economy has been operating has contributed to global inequality of a dangerous sort…creating a lack of confidence in the fairness of the way in which politics are organized.”

Falk adds that people need new ways of interacting with governments and institutions if we’re to “evolve the new kind of planetary politics that are needed to meet the challenges of our age.”

Cross-posted from Shareable.

Photo: Joey Kyber (CC-0). Follow @CatJohnson on Twitter

The post A Commons Approach to the Challenges of Our Time appeared first on P2P Foundation.

By John Jacobi ([email protected])

The conservation movement is home to various factions with different, sometimes diametrically opposed, strategies, depending on the starting values. Wildists advocate a strategy called “rewilding,” which aims above all to restore the autonomy of nature and which hosts a variety of tactics placed along what is called “the tactical spectrum.” (This is separate from the rewilding program, an important tool devised by conservation biologists and organizations like The Wildlands Network. It will be mentioned later.) One side of the tactical spectrum consists of moderate, usually personal actions, like camping, naturalism, and studying evolutionary science. The middle consists of more socially impactful and “legitimate” actions, like litigation, conservation work, journalism, and scientific work. And the other side consists of radical, very impactful, and often “illegitimate” or illegal actions, like monkeywrenching. Most of normal conservation takes place on the middle of the spectrum.

Nearly all social movements have a tactical spectrum, and the most robust have elements all helping each other through varying degrees of radicalism. Martin Luther King, for instance, was greatly benefitted by the riots of the time, which were often spurred on by black nationalists.

The conservationists who spearheaded much of the contemporary movement put a lot of effort into building a robust spectrum, each of the more radical elements positioned specifically to benefit the more moderate efforts before them. This is best exemplified by a David Brower quote:

The Sierra Club made the Nature Conservancy look reasonable. I founded Friends of the Earth to make the Sierra Club look reasonable. Then I founded Earth Island Institute to make Friends of the Earth look reasonable. Earth First! now makes us look reasonable. We’re still waiting for someone else to come along and make Earth First! look reasonable.

Reform movements generally only need to occupy the middle of the spectrum with perhaps temporary diversions into the radical end. The task of revolution, however, means shifting the whole movement further to the radical end. This is a delicate task. If most of the movement is at the moderate end and only a few groups engage in highly radical actions, they will be called terrorists, and because they will be easily isolated from the rest of the movement they could be stamped out. Furthermore, if the radical factions fail to actually occupy the spectrum and their actions benefit only their own efforts (i.e., if they are not “linked” to the moderate efforts) than they will also be easily isolated and stamped out. Finally, the radical factions should take care not to move the entire movement to the radical end of the spectrum, lest they delegitimize the entire movement. Again, the role of the party is to build the spectrum, link the factions, and radicalize the movement, slowly and thanklessly. It is not to ignite a revolution immediately, but to creep along a spectrum until a catalyst makes way for more radical advances than would be normally allowed.

In our work, we must take care to build only a wildness-centered spectrum. It is possible, for instance, to be engaged in environmental litigation but for management or industrial purposes. And we’ve seen plenty of “environmental” monkeywrenching that had more to do with social justice than it had to do with restoring nature’s autonomy. There’s also the perpetual threat of revisionism, as I make clear in “Refuting the Apartheid Alternative.” So in our efforts to build and link, we should only build and link those efforts that benefit wildness-centered conservation. Otherwise, a wildness-centered revolution will become harder or even impossible.

The underlying point of rewilding is this: no matter where on the spectrum specific projects are, the moral undertone is advocacy for nature no matter the consequences for civilization. Nature first, civilization only if it doesn’t interfere. This is the ethic espoused by Muir, and we must be sure that it is the ethic that binds all of rewilding together.

Read the whole essay here.

The post The Obligation to Rewild appeared first on P2P Foundation.

I met Burns about seven years ago when he was a professor for one semester a year at Vermont Law School.  He was writing a major legal treatise about climate change, and one element of the essay dealt with the commons.  A mutual friend, the polymath Roger G. Kennedy, introduced us, and the gravitational pull of Burns’ essay quickly drew me in. It was an irresistible disruption in my life that got me thinking a lot about environmental law and the commons.

Soon we were working together on a variety of projects:  a major scholarly book, chapters in anthologies, law review articles, grant proposals. In the course of it all, Burns exposed me to a great deal of human rights and international law, and he helped clarify their potential and limits for re-imagining international governance, environmental law and the actualization of human rights. For my part, I introduced Burns to the loose but growing network of international commoners and commons literature. He quickly realized that the commons is not just complementary to human rights; the two are long-lost partners with affirmative synergies.

Our conversations became more serious and, with a bit of serendipitous funding, we embarked upon a grueling book project, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published in 2013 by Cambridge University Press.  It was a bold attempt to reimagine environmental law and policy through the lens of human rights and the commons.  We wanted to envision new ways to actualize human rights principles and commons practices at global and regional levels.  We wanted to think beyond the framework of the nation-state and international treaty organizations.  We wanted to think beyond the standard forms and institutions of law itself.

Burns attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence.  He really wanted to come up with creative legal solutions, and he wasn’t afraid if they might require social and political struggle. Now that’s not a quality you find in your average law professor, let alone one in his seventies. Burns had a bold and questing temperament, and did not let himself be confined by the disciplinary blinders of law. That’s why, following the publication of Green Governance, Burns wanted to continue our explorations.  So we founded the Commons Law Project to see if we could propose an architecture of law and public policy to address climate change and other urgent ecological problems.

Burns retired from teaching in 1999, but his schedule was anything but retiring.  Somehow he juggled a daunting portfolio of chapters for book anthologies, law review articles, law school teaching, public talks, support for the Center for Human Rights, sitting on the editorial boards of over ten professional journals, and acting as series editor for the longest continuing international law book series in the US.  I was privileged that our collaborations could fit into this schedule, and that I could learn indirectly from the many people and ideas that coursed through his life.

At his death, Burns and I were exploring – along with Professor Anna Grear, founder and editor-in-chief of the Journal on Human Rights and the Environment – the challenges of new forms of governance.  Anna and I still hope to convene workshops of venturesome legal scholars, activists and others to try to elicit some great ideas.  We will sorely miss Burns’ counsel, his mastery of the law and legal literature, and his friendships with a large network of legal thinkers.

Since I’m not a lawyer or a legal scholar, I had only glimpses into the world of international law and human rights in which Burns normally lived, and the many unusual experiences that he had in a prior life as an attorney.  He once chuckled at his meeting with Marilyn Monroe, for example, when he was a New York City attorney representing playwright Arthur Miller. Today, Professor Mary Wood, the indefatigable champion and scholar of public trust doctrine (Nature’s Trust), described sharing a podium with Burns just last week:

I stood with Burns just one week ago in front of the UN Association of Iowa to give an address on climate emergency.  Burns gave a resounding call to arms to those in the audience.  He said, if you think that you have a human right to the resources that sustain your survival, take that right to court.  It will not amount to anything if you don’t, he said.  It was thrilling to follow such a call from an incomparable scholar with my own address to the audience describing how youth across this nation are taking government to court in a global campaign spearheaded by Our Children’s Trust to force carbon dioxide reduction before it is too late.  Burns was an esteemed scholar in the atmospheric trust litigation amicus group supporting the litigation campaign.

Dean Agrawal has credited Burns with “putting Iowa Law on the map” in international law and international human rights.  He was responsible for recruiting some of our most distinguished faculty members in the fields of international and comparative law…and inspired generations of law students.”  She called Burns a “citizen of the world.”  I’ll say.

My deep condolences to Burns’ wife Marta Cullberg Weston and family, and to Burns’ colleagues at the University of Iowa.  We’ve lost a giant legal scholar, a restless mind and a dear friend.

The post Farewell Burns Weston, Questing Legal Mind and Dear Friend appeared first on P2P Foundation.

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.”

The post Recognizing a Human Right to the Commons appeared first on P2P Foundation.

This is the last in 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 onCSRWire. I am re-posting them here to introduce the paperback edition, which was recently released. This extract was originally published in bollier.org

In our preceding essays in this series, we introduced the idea of Green Governance, a new approach to environmental protection based on a broad synthesis of economics and human rights and, critically, the commons. We also described the burgeoning global commons movement, which is demonstrating a wide range of innovative, effective models of Green Governance.

In our final post, we’d like to focus on how a vision of Green Governance could be embodied into law. If a new paradigm shift to Green Governance is going to become a reality, state law and policy must formally recognize the countless commons that now exist and the new ones that must be created.

Recognizing the Commons as a Legal Entity

Yet here’s the rub: Because the “law of the commons” is a qualitatively different type of law – one that recognizes social and ecological relationships and the value of nature beyond the marketplace – it is difficult to rely upon the conventional forms of state, national and international law. After all, conventional law generally privileges individual over group rights, as well as commercial activities and economic growth above all else.

Establishing formal recognition for commons- and rights-based law is therefore a complicated proposition. We must consider, for example, how self-organized communities of commoners can be validated as authoritative forms of resource managers. How can they maintain themselves, and what sort of juridical relationship can they have with conventional law? One must ask, too, which existing bodies of law can be modified and enlarged to facilitate the workings of actual commons.

 Threee Domains of Commons Law

Clearly there must be a suitable architecture of law and public policy to support and guide the growth of commons and a new Commons Sector. In our book Green Governance, we propose innovations in law and policy in three distinct domains:

• General internal governance principles and policies that can guide the development and management of commons;
• Macro-principles and policies that facilitate the formation and maintenance of “peer governance;”
• Catalytic legal strategies to validate, protect, and support ecological commons.

General Internal Governance Principles and Policies

As described in our fourth essay, as early as 1990 Nobel Laureate Elinor Ostrom identified eight core design principles for successful commons. Although subsequent research has elaborated on these principles, they remain the most solid foundation for understanding the internal governance of commons as a general paradigm.

The Ostrom principles hold that commons depend upon things such as distinct boundaries around the collectively managed resource so that it is possible to identify who belongs to the commons and who does not.

Commoners must be able to make their own rules for managing resources that matter to them – and those rules must be compatible with local ecosystems and particular resources. Commoners must develop ways to monitor for the theft and abuse of resources, and they must have a system of graduated sanctions to punish those who violate the rules of a commons.

While the exact rules of governance will always vary, generally the internal principles must honor such values as inclusive participation, open deliberation and consensus, transparency in rule making, and at least a rough equity in the allocation of resources.

Professor Ostrom has also noted:

“…extensive empirical research on collective action … has repeatedly identified a necessary central core of trust and reciprocity among those involved that is associated with successful levels of collective action… When participants fear they are being ‘suckers’ for taking costly actions while others enjoy a free ride, it enhances the need for monitoring to root out deception and fraud.”

Successful commons governance thus must embody the values and capabilities expressed in numerous human rights instruments, including the Universal Declaration of Human Rights.

It also should aspire to devolve to the lowest possible level of decision-making, known as the principle of “subsidiarity.” Successful ecological commons are careful to limit, regulate or ban the monetization of shared assets lest it encourage their overuse or abuse as “free markets” routinely do.

Macro-Principles and Policies for Peer Governance

Of course, internal governance principles are not enough to secure the commons – because all commons exist within a distinct political and economic context. Accordingly, there must also be a legal architecture supportive of commons – a set of macro-principles and policies, laws, institutions and procedures – that facilitate the formation and maintenance of “peer governance.”

History shows the State/Market duopoly is predisposed to enclose commons to monetize resources and consolidate power. It is a pattern amply confirmed by the U.S. Government’s lax oversight, discount leasing and outright giveaways of countless public resources. Among the most-abused forms of common wealth: public lands with minerals, forests, grasslands, wildlife and water. Politicians and corporations frequently collude in privatizing access, use and ownership of such public resources, notwithstanding the formalities of law (where they exist).

All the more reason, then, why traditional commons need affirmative protection by State law and policy. We need explicit declarations of law and administrative structure designed to protect shared natural resources. The State must agree to observe essential “macro-principles” in its dealings with ecological commons.

Protection Against Enclosure

For example, the State, as a matter of law, must agree to recognize commons- and rights-based ecological governance as a practical alternative to the State and Market. This means that the State will not enclose or facilitate the enclosure of shared resources and dispossess commoners. Simply recognizing this principle would go a long way toward preserving our many shared natural sources.

Democratic Participation by Stakeholders/Commoners

A related principle is the ability of people to participate in the governance of land, water, and other resources that serve their basic household needs. They should not have to rely upon market investments or profit-making activity to ensure their human right to their environmentally dependent basic needs.

State as Trustee of Commons’ Long-Term Interests

For larger-scale common-pool resources – national, regional, global – there is no avoiding that the State must play an active role in establishing and overseeing commons. For example, when a resource cannot be easily divided into parcels (the atmosphere, oceanic fisheries) or where the resource generates large rents relative to the surrounding economy (petroleum, mining), it makes sense for the State to intervene and devise appropriate management systems.

But in granting this authority to the State, the law must be clear that the resources still belong to commoners, not to the government, and that the State is acting as a trustee.

One way to reinforce this idea is to consciously design these systems as State trustee commons that must affirmatively serve the long-term needs of both ecosystems and commoners. This macro-principle should apply to public lands, national parks, wilderness areas, rivers, lakes, State-sponsored research, and related civil infrastructure. The elements of nature should not be regarded simply as market resources, ripe for exploitation.

Catalytic Legal Strategies on the Path to Green Governance

These principles may be high-minded and ambitious, but there is always the question of “How do we get from here to there?” How can we use or modify existing bodies of law to move us closer toward Green Governance? For this, we envision a variety of “catalytic legal strategies” to validate, protect and support ecological commons- and rights-based governance.

There are numerous legal and activist interventions that could help advance commons governance in incremental but catalytic ways. Here are a few:

1. Adapt Private Contract and Property Law to Protect Commons
The basic idea is to use conventional bodies of property law or contract law to advance collective rather than individual interests. The most famous example may be the General Public License, or GPL, which copyright owners can attach to software to ensure that the code will be forever accessible to anyone to use. The Creative Commons licenses use the same strategy to make text, images, and music legally shareable. Land trusts use real estate law to make land “property on the outside, commons on the inside.”

2. “Stakeholder Trust”
“Stakeholder trust” can be used to manage and lease ecological resources on behalf of commoners, with revenues being distributed directly to commoners. A well-known model is the Alaska Permanent Fund, which collects oil royalties from state lands on behalf of the state’s households. Some activists have proposed an Earth Atmospheric Trust to achieve similar results from the auctioning of rights to emit carbon emissions.

3. Federal and Provincial Governments Must Support Commons Formation and Expansion
Government agencies typically host conferences, assist small businesses, promote exports, and so on. Why not provide analogous support for commons? Governments could also help build translocal structures that could facilitate local and subnational “food sovereignty” commons, such as Community Supported Agriculture and the Slow Food movement, and thereby amplify their impact.

4. Expand Public Trust Doctrine
The public trust doctrine of environmental law should be expanded to apply to a far broader array of natural resources, including protection of the Earth’s atmosphere. This legal doctrine – sometimes called “nature’s trust” – is a critical tool for forcing States to act as conscientious trustees of our common ecological wealth.

5. Use Digital Technology to Make Governance Transparent, Participatory and Accountable
Various digital networking technologies now make it possible to reinvent governance so that it can be made more transparent, participatory, and accountable – or, indeed, managed as commons. Government wikis and crowdsourcing platforms can help enlist citizen-experts to participate in policymaking and enforcement. “Participatory sensing” can enable citizens to directly monitor environmental oversight and report it, wiki-style, to help assure public accountability.

Is Green Governance Utopian?

It might be claimed that Green Governance is a utopian enterprise. But the reality is that it is the neoliberal project of ever-expanding consumption on a global scale that is the utopian, totalistic dream.

Our book Green Governance outlines a variety of legal tools and initiatives (beyond those mentioned here) that we believe can help spread a vision of commons- and rights-based ecological governance.

As a practical matter, moving this agenda forward requires that the divide among activists between “intellectual dialogue” and “movement building” be bridged. On the one hand, we urge the immediate adoption, at every level of social organization, from town hall to global council, of our proposed Universal Covenant Affirming a Human Right to Commons- and Rights-based Governance of Earth’s Natural Wealth and Resources. On the other hand, we need deep, exploratory dialogues to move the environmental movement into new territory, so that it can begin to advance more visionary yet practical ideas.

Initiating some new, “out-of-the-box” dialogues are the next stage in our work to advance Green Governance – to bring together the scholars who think deeply about the law with the movement activists who seek to instigate change. There is an urgent need for intensive mutual collaboration between these two communities.

It is abundantly clear that existing frames of economic-legal-political governance and policy are not commensurate with our catastrophic problems. Somehow we must find ways to transcend and transform the status quo.

Since saving our planetary ecosystems is doomed without everyone’s participation, your suggestions and support in moving this agenda forward will be very much welcomed.

The post Green Governance 6: Advancing a New Legal Architecture to Support the Ecological Commons appeared first on P2P Foundation.

This is the fifth 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

This is the fifth 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 onCSRWire. I am re-posting them here to introduce the paperback edition, which was recently released.

Our last essay outlined the great appeal of the commons as a way to deal with so many of our many ecological crises. The commons, readers may recall, is a social system for the long-term stewardship of resources that preserves shared values and community identity.

Fortunately, the commons is not just an abstract idea. It’s a living reality, thanks to millions of commoners around the world. People are managing forests, fisheries, irrigation water, urban spaces, creative works, knowledge and much else as commons. In so doing, they are in the vanguard of a new/old trend: using the social practices of commoning as a way to reclaim shared wealth while fighting the predatory behavior of neoliberal capitalism.

Not an Ideology but a Social Practice

The global commons movement is not a traditional movement defined by an ideology or policy agenda. It is united, rather, by its participants’ commitment to certain social practices and principles of self-governance; commoners are passionate about self-organizing their own alternative models of provisioning to meet their basic needs in fair, inclusive and participatory ways.

In recent times, as we noted in our fourth essay, the commons has been known mostly through a negative characterization, the “tragedy of the commons,” a term made infamous—tragically—by biologist Garrett Hardin in a much cited 1968 essay. That highly misleading term has tarred the idea of the commons for at least two generations even though the late Professor Elinor Ostrom and a global network of scholars have demolished the concept. Ostrom won the Nobel Prize in Economics in 2009 for her life work showing that commons are in fact a viable, sustainable social system for managing collective resources, especially those of nature.

Commons Movement Emerges with Digital Commons

In the late 1990s and early 2000s, a global movement of commoners began to emerge alongside this scholarship, but independent of it. Most of these commons were not academics but, simply, ordinary people trying to defend and assert control over resources of importance to their daily lives.

One of the most significant trends was the emergence of millions of commoners using the Internet to share knowledge and collaborate on creative projects. This explosion of digital commons can barely be grasped because it is so varied.

It can be seen in Linux and thousands of free/open source software programs; the great international Wikipedia project and its many offshoots; and a burgeoning world of more than 10,000 open access scholarly journals, whose articles are freely available in perpetuity and not restricted by paywalls or strict copyright control. There is a happening remix music subculture, a boisterous video mashup world, and a proliferation of hackerspaces and FabLabs for the Maker movement.

The common denominator in each case is an eagerness to co-produce and innovate outside of conventional markets and the state.

Not surprisingly, the many tribes of digital commoners began to see that the familiar free-market narrative about “wealth-creation” through private property rights is grievously limited if not erroneous. Sharing and cooperation on open networks are often far more productive than markets, notwithstanding the absence of private property rights, legal contracts and market exchange.

Stewardship of the Eco-Commons

Meanwhile, a substantial other universe of commoners has been focused on the stewardship of natural resources, urban spaces, and social community. Many of these commons have been operating for decades and, in some cases, for centuries or even millennia, even in times of drought and scarcity.

Modern societies, we believe, can learn a great deal about “sustainability” from indigenous peoples who have learned how to blend their cultural traditions with agro-botanical husbandry.

In Peru, for example, a number of Peruvian indigenous peoples manage more than 900 genetically diverse potatoes as a “bio-cultural heritage” landscape. The Potato Park, as it is called, is a special regime authorized under international law that lets the Peruvian tribes protect genetic knowledge that their ancestors developed over the course of centuries. The Potato Park lets the indigenous peoples protect their crops from the “bio-piracy” of multinational biotech companies who would love to patent the potato genetic knowledge.

Lots of people in “developed” countries rely on natural resource commons, too. There are lobstermen in Maine who work together to ensure that no one over-harvests lobsters in a given bay. There are Community-Supported Agriculture farms and permaculture communities that blend their agricultural practices and social ethics with the imperatives of the land. There are land trusts and community forests, and urban gardens and the Slow Food movement.

The point in each case is to manage the resources for the benefit of all over the long term, and not just as a short-term input for market profits.

Commons Initiatives Spread

All this commoning is no aberration. Worldwide the International Land Alliance estimates that there are an estimated 2 billion people whose lives revolve around subsistence commons of forests, fisheries, arable land, water and wild game. The aberration is the continued neglect of commoning by mainstream economists, who generally ignore the commons or stigmatize it – incorrectly à la Garrett Hardin – as a failed management regime.

These attitudes are likely to change in the coming years as commoners around the world begin to find each other and hoist the banner of the commons to defend their resources.

A major international conference on economics and the commons hosted by the German Green Party’s foundation, the Heinrich Boell Foundation, gave new focus to the commons in 2010. The energy galvanized by that event also catalyzed a flood of new commons projects, too numerous to itemize.

There is, for example, a multimedia educational project known as Remix the Commons, based in Canada; a growing swarm of “commons cartographers” who are developing open mapping projects to help people identify and participate in various commons; and a new initiative to fight genetically modified crops by devising new legal protections for traditional seed-sharing.

What makes the global commons movement so robust and exciting is its spontaneous, uncoordinated momentum. Protesters in Istanbul’s Gezi Park carried signs, “Reclaim the commons!” when it was threatened with conversion into a shopping mall.

Traditional communities in Africa have developed their own “bio-cultural protocols” to help legally defend their lands and ways of life from neoliberal trade policies.

The Occupy movement quite naturally invoked one of thegreat resisters of the English enclosure movement – the Digger and commoner Gerrard Winstanley – who famously declared, “The earth was made a common treasury for all!”

Commons Values Span the Political Spectrum

Commoners are not all alike. They have many profound differences in their governance systems, management practices, cultural values, and so on. However, they tend to share fundamental commitments to participation, openness, inclusiveness, social equity, ecological respect, and human rights. Consumerism, limitless economic growth and maximum profitability are shunned.

The politics of the commons movement can be confounding to conventional observers because political goals are not paramount (unless the commons is under siege). Also, commoners are more focused on “prepolitical” social activity and relationships, not ideological uniformity.

As German commons advocate Silke Helfrich notes, “commons draw from the best of all political ideologies.”  Conservatives like the tendency of commons to promote responsibility. Liberals are pleased with the focus on equality and basic social entitlement. Libertarians like the emphasis on individual initiative. And leftists like the idea of limiting the scope of the Market.

The Commons is a Relationship, Not a Thing

As Helfrich points out, it is important to realize that “the commons is not a discussion about objects, but a discussion about who we are and how we act. What decisions are being made about our resources?” Does economic activity satisfy basic human needs and honor human rights and dignity?

This kind of discussion does not easily map onto the categories of thought used by business people, such as “social responsibility” and the “triple bottom line” (company finances, community well-being and ecosystem sustainability). For commons, the idea of treating their social community or ecosystem as “capital’ is nonsensical because both are interdependent living organisms.

The point of a commons is not to quantify or monetize one’s resources or community relationships; it is to experience and enjoy their intrinsic character. So, instead of using dubious quantitative metrics (e.g., “natural capital”), commoners would rather use their own localized knowledge and group judgment to decide what forests or farmland should be “stinted” (limited), and how.

They might even decide that certain resources should be made inalienable (not for sale), a concept foreign to growth-minded businesses.

The Commons is Evolving

The commons movement is still finding its way forward, but there is a constant flurry of new developments every month. Among the more notable developments: the above-noted major international conference on economics and the commons held in Germany in May 2013; an on-going study commissioned by the Government of Ecuador on how to reorient its economy to promote “commons based peer production”; a recent Green Party conference in Istanbul that explored the strategic opportunities of the commons; formal public policies developed by commoners in India to protect their lands; and environmentalist Chinese filmmakers now shooting a film, “The Evolution of Commons.”

At a time when conventional environmentalism and policy advocacy wring their hands about the difficulty of making progress, the commons movement is making important gains that simply cannot be achieved within the straitjacket of neoliberal market activity or policy discourse.

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.

The post Green Governance 5: The Commons as a Growing Global Movement appeared first on P2P Foundation.

This is the fourth 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

The overriding challenge for our time – as outlined in our three previous CSRwire essays– is for human societies to develop new ways of interacting with nature and organizing our economic and social lives. It’s imperative that we rein in the mindless exploitation of fragile natural systems upon which human civilization depends.

The largest, most catastrophic problem, of course, is climate change, but each of the “smaller” ecological challenges we face – loss of biodiversity, soil desertification, collapsing coral reefs and more – stem from the same general problem: a mythopoetic vision that human progress must be achieved through material consumption and the ceaseless expansion of markets.

State/Market Solutions Doomed to Failure

While most people look to the State or Market for solutions, we believe that many of these efforts are doomed to failure or destined to deliver disappointing results. The State/Market duopoly – the deep alliance between large corporations, politicians, government agencies and international treaty organizations – is simply too committed to economic growth and market individualism to entertain any other policy approaches.

The political project of the past forty years has been to tinker around the edges of this dominant paradigm with feckless regulatory programs that do not really address the core problems, and indeed, typically legalize existing practices.

Solution:  Stewardship of Shared Resources

So what might be done?

We believe that one of the most compelling, long-term strategies for dealing with the structural causes of our many ecological crises is to create and recognize legally, alternative systems of provisioning and governance. Fortunately, such an alternative general paradigm already exists.

It’s called the commons.

The commons in its broadest sense is a system of stewardship of shared resources. A commons is not run by government or businesses; the goal is not to maximize production or profit. A commons is a defined community of commoners who act as a conscientious trustee of given resources. They ensure that the land or water or fish is shared equitably among those who need it for their everyday needs.

Governance of Commons

They may do this via a direct delegation of authority, but, more typically, they self-organize to manage a resource and carry on that tradition for long periods of time, even for generations. And generally they do so with community participation, a rough democratic consensus, and with respect for one another as well as for the resources they administer.

What’s notable about a commons is that it is generally independent of the Market and State, and functions with a large degree of autonomy. A commons may consist of pastoralists in semi-arid regions of Africa managing wild game; lobstermen in the coastal coves of Maine; communal landholders in Ethiopia; rubber tappers in the Amazon; or fishers in the Philippines.

Each commons is run its own particular way, but the common goal is for the people themselves to negotiate cooperative schemes to manage their shared resources for non-market purposes.

In recent years the commons has attracted a great deal of attention, particularly with the rise of countless commons of information and creativity on the Internet, such as open source software, Wikipedia, social networking and open access scholarly publishing.

These are obvious different types of resources – intangible software code or electronic blips – but the stewardship of these resources amounts to a commons because they involve a group of people coming together, outside of business or government, to manage resources for the benefit of their members.

The “Tragedy of the Commons”

Despite the long and robust history of the ecological commons, dating back to the Magna Carta, Justinian Rome, and beyond, modern economics has largely dismissed it as an archaic curiosity. Much of the neglect can be traced to an influential essay, “The Tragedy of the Commons,” a parable about the inevitable collapse of any shared resource that biologist Garrett Hardin published in the journal Science in 1968.

If you have a shared pasture on which many herders can graze their cattle, Hardin wrote, no single herder will have a rational incentive to hold back. And so he will put as many cattle on the physical commons as possible, take as much as he can for himself. The pasture will inevitably be over-exploited and ruined: A “tragedy.”

The tragedy narrative implied that only a regime of private property rights and markets could solve the tragedy of the Commons. If people had private ownership rights, they would be motivated to protect their grazing lands.

But Hardin was not describing a commons. He described a scenario in which there were no boundaries to the grazing land, no rules for managing it, and no community of users. That is not a commons; it is an open-access regime or free-for-all. A commons has boundaries, rules, social norms, and sanctions against “free riders.” A commons requires that there be a community willing to act as a steward of a resource.

Yet, Hardin’s misrepresentation of actual commons as a failed paradigm – a “tragedy” – stuck in the public mind and became an article of faith. Economists and conservative pundits saw the story as a useful way to affirm their ideas that private property rights and markets are the best way to manage shared resources.

The Commons — Tragedy No More

Happily, contemporary social science scholarship has done much to rescue the Commons from the memory hole to which it was consigned by mainstream economics. The late Nobel laureate Elinor Ostrom of Indiana University was the most prominent academic to rebut Hardin and, over time, to rescue the Commons as a highly attractive governance paradigm.

Sometimes working with political scientist Vincent Ostrom, her husband, Elinor Ostrom studied the institutional systems for governing CPRs – “common pool” (or collective) resources over which no one has private property rights or exclusive control, such as fisheries, grazing lands, and groundwater, all of which are certainly vulnerable to a “tragedy of a commons” outcome.

The central question of Ostrom’s work was, in her words, “how a group of principals who are in an interdependent situation can organize and govern themselves to obtain continuing joint benefits when all face temptations to free-ride, shirk, or otherwise act opportunistically.” Her most penetrating answers came in her path-breaking 1990 book,Governing the Commons, which described how many resource-users can and do develop shared understandings and social norms – and even formal legal rules – that enable them to manage common-pool resources sustainably over the long term.

Some commons, for example – such as the communities of Swiss villagers who manage high mountain meadows in the Alps and the Spaniards who developed huerta irrigation institutions – have flourished for hundreds of years, even in periods of drought or crisis.

Design Principles for the Commons

In governing the Commons, Ostrom also identified eight basic design principles that enable commons to work reliably:

• A commons must have clearly defined boundaries of membership and of the resource, for example.
• People must be able to develop their own rules for managing the resource, for another.
• They must be able to devise systems to monitor how people use the resource and identify and punish people who violate the rules.

And so on.

Contemporary Commons

While many people regard the commons as a relic of history, they are in fact very much alive. You can see them in acequias, a community institution of rights and responsibilities used by Hispanic-Americans in New Mexico, to manage irrigation water in that very arid region.

The commons is at work in permaculture projects, which seek to blend agricultural practices with ecological imperatives. We can see the commons in the Slow Food movement and Community-Supported Agriculture, which attempt to integrate our production and enjoyment of food with the dynamics of regional ecosystems.

Community forests, urban agriculture, indigenous hunting and farming practices, land trusts – these commons all seek to work with nature over the long term, not simply to rip-and-run to sell as much in the marketplace as possible.

The International Association for the Study of the Commons has estimated that two billion people around the world depend upon commons of forests, fisheries, farmland, irrigation water, wild game and other natural resources for their everyday needs.

But these commons are generally ignored because economists generally do not regard subsistence provisioning for household use as interesting. For them, market exchange and capital accumulation are presumed to be the only meaningful ways to create “wealth” – defined as something that can be monetized and transferred elsewhere. Two leading introductory economics textbooks – by Samuelson & Nordhaus and Stiglitz & Walsh – ignore the Commons entirely.

Much more could be said about the commons. But what is especially notable is the rise of a large, diversified global movement of commoners who see the commons as a way to defend their shared inheritance from the depredation of the State/Market.

That is the subject of our next essay, the burgeoning global commons movement.

The post Green Governance 4: The Commons as a Model for Ecological Governance appeared first on P2P Foundation.

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.

The post Green Governance 3: The Human Right to a Clean and Healthy Environment appeared first on P2P Foundation.

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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