The legal right to ramble stems from the Charter of the Forest, the 1217 social compact grudgingly ratified by King John that formally recognized commoners’ rights of access to the forest. The right was part of a larger constellation of rights won by commoners after their long struggle with the Crown over who shall have access to the forest – only the King and his lords and retainers, or ordinary people, too?

Because of the right to ramble, a sprawling network of paths evolved in Great Britain over the centuries, bringing together villages, roads, farms, and natural landmarks throughout the landscape. The pathways were once regarded as vital infrastructure for commerce, social tradition, and everyday convenience. Now the pathways are mostly seen as a beloved cultural heritage and recreational commons. Millions of people roam the pathways every year. 

Like so many social limitations on private private property, however, people forget about what belongs to them – while property owners are ever-alert to the prospect of expanding their rights. Many modern-day property owners in England and Wales despise the right to ramble because it limits, however marginally, their absolute, exclusive control of the land. 

In 2000, property owners prevailed upon the British Parliament to terminate the ancient right to ramble unless a given pathway has been formally mapped and officially recognized. The Countryside and Rights of Way Act set a deadline for such mapping: January 1, 2026. (Parliament originally set a ten-year deadline.) After 2026, unmapped historic pathways will revert to private property and the public right to ramble on such lands will expire forever.

To counter this threat, the Ramblers – a long-time association of walking enthusiasts dedicated to the sense of freedom and benefits that come from being outdoors on foot” — has organized a campaign, Don’t Lose Your Way, along with a guidebook for ramblers, “Protect Where You Love to Walk.” The goal: to help a small army of volunteers map all of the pathways in England and Wales by 2026, and in so doing, keep them available to commoners.

This task is difficult because some historic pathways may not exist on any contemporary maps. Many pathways are known only through informal, customary use.Their very existence is known because one generation introduces the next generation to the joy of walking them. The official maps made by local authorities may or may not recognize the paths, and newer maps may omit older, less-used paths. Sometimes unscrupulous landowners have actually altered pathways to discourage people from using them, or to eradicate local memory of them.

The Ramblers say that identifying and verifying the existence of many pathways really requires a “systemic trawling through archives.” There is no other way to be definitive. But this task is plainly impractical. Chances are good that some pathways will be overlooked and lost to private enclosure. 

But Brits have a history of standing up for their “right to roam.” In a still-remembered episode in 1932, there was a mass trespass on the mountain area known as Kinder Scout — a deliberate act of civil disobedience by hundreds — to protest the lack of access to open countryside in England and Wales.

The mapping requirement by Parliament reminds me of other enclosures in modern life. Think how Indians (on the subcontinent) have had to document the medicinal value of hundreds of traditional plants and herbal medicines in order to keep them available to all.Without such documentation, transnational pharmaceutical companies could patent traditional medicines that have been freely used for centuries. Without affirmative evidence marshaled by commoners — the Traditional Knowledge Digital Library — Big Pharma could claim private, proprietary control over the biowealth of the commons.

I am also reminded of the way that the music industry used copyright law to privatize the commercial use of the 1858 song “Happy Birthday.” Another example of how the culture of commoning is an irresistible target for private commercialization. (Happily, a US federal court declared the copyright of “Happy Birthday” to be invalid in 2016.)

It is encouraging to know that the Ramblers and their allies are on the case. Their campaign to map English and Welsh walking trails serves as another reminder that the rights of commoners cannot be taken for granted. They must be secured through hard work and struggle.

The post A Looming Deadline for the Right to Ramble appeared first on P2P Foundation.

Abigail Savitch-Lew, City Limits: The community land trust movement is on the rise in cities across the country from Miami to Oakland, but as of late, the Big Apple arguably ranks among the cities where the movement is most energized. Across the five boroughs, where for the past 20 years there’s been one community land trust (CLT), there’s now over a dozen groups trying to create new CLTs.

“I don’t know anywhere that has this level of growing interest, both with grassroots and more established organizations,” says Melora Hiller of Grounded Solutions Network, which supports the CLT movement nationwide.

A CLT is a nonprofit entity that stewards the housing or other buildings on its property by retaining ownership of the land—a unique ownership structure that advocates say help ensure the buildings remain permanently affordable. The model is also believed to promote democratic and community-driven decision making, with CLTs usually governed by a “tripartite board,” in which one third of members are residents of the property itself, one third live in the surrounding neighborhood, and one third are other stakeholders like nonprofits, elected officials, or funders. The concept was originally conceived by Black farmers seeking to protect Black assets in the Jim Crow South but has in recent years become a strategy used in urban settings to help communities maintain affordable housing.

From a policy standpoint, 2017 was a victorious year for New York City’s CLT movement. It began with the de Blasio administration, after months of prodding by advocates, opening the door to the CLT vision by releasing a Request for Expressions of Interest, calling on groups to submit proposals detailing how they would develop and manage CLTs. In July, the de Blasio administration announced it had applied for grant funding from Enterprise Community Partners and had received $1.65 million for a variety of CLT projects.

This December, the City Council passed legislation officially codifying CLTs and allowing the city to enter into regulatory agreements with them. (The Council also passed two bills requiring the city to take stock of, and report on, vacant land as well as property owned by the Department of Housing Preservation and Development (HPD)—measures that advocates believe will shed light on what properties could be potentially steered onto CLTs.)

As the momentum behind CLTs has grown, some policymakers—and some advocates, too—have cautioned that CLTs are not the answer to all the city’s housing problems, but rather just one additional “tool in the toolbox” to help address those problems. “It doesn’t create a magical subsidy or some kind of substitution for a tax exemption or below-market financing,” says Erica Buckley, a lawyer at Nixon Peabody LLP.

The de Blasio administration has expressed a particular interest in the use of CLTs to fill a gap in its existing offerings when it comes to the creation of permanently affordable single-home ownership opportunities. When it comes to rental housing, some see CLTs as not as much a necessity: There are players in the city’s established nonprofit affordable housing sector that are already dedicated to building housing for very low incomes and simply seek more resources to do so, and the city already has recently come up with other solutions to ensure permanent affordability in rental projects on public land.

On the other hand, many advocates see CLTs as providing a greater social value that exceeds these more technical aspects, and they therefore dream of the CLT movement going big and acquiring significant amounts of land—while also working hand-in-hand with existing nonprofit affordable housing developers.

Yet an effective expansion of CLTs citywide will require more resources and more city buy-in than the movement has yet seen. There will also be some tough decisions down the line as the movement tries to balance the goal of speedy expansion with that of fostering real community involvement.

The reasons to expand

For many advocates, especially organizers rooted in communities, CLTs offer the promise of community control over land-use decisions during a time when many feel they have been left subject to the whims of real-estate interests that treat land and housing solely as a commodity. The governance style of CLTs means that there’s supposed to be more say from actual low-income people who live in such communities. CLTs thus might represent another opportunity for a neighborhood’s residents to advocate, and fight to secure, housing and amenities that are truly “affordable” by their own definition.

For some, CLTs represent another step toward a “broader vision of cooperative economics for New York City,” in the words of Deyanira Del Rio from the New Economy Project—a vision that includes worker cooperatives, community development credit unions, and other entities. It’s also sometimes referred to the “solidarity economy,” and New Economy Project describes it as “a vision for an economic system that is based on values of social and racial justice, ecological, sustainability, cooperation, mutualism, and democracy” and that gives “marginalized New Yorkers” control over their lives.

And then, from an economics perspective, there’s the notion that “if you remove enough land from a neighborhood—some geographic portion of a city, or of a city as a whole…there’s going to be fewer speculative opportunities and in making fewer speculative opportunities it also means that there are whole areas that are not being speculated on,” says City College professor John Krinksy. In other words, some advocates believe that a large CLT can deter land speculation and thereby slow gentrification.

Beyond the value of bringing the benefits of deep and permanent affordability to more people, achieving local control, expanding the cooperative movement, and taking more land off the speculative market, there are also practical benefits to scaling up the city’s CLTs: large organizations are more cost-effective and can access funding more easily.

Where are the CLTs?
Community land trusts at various stages of development in New York City. Click on a marker to view information about each CLT initiative.

Sizing up the potential

The largest community land trust in the country is the Champlain Housing Trust, formerly the Burlington Community Land Trust and Lake Champlain Housing Development Corporation, which were both founded in 1984 while Bernie Sanders was mayor of Burlington. In December 2016, it encompassed 2,703 units of housing, and was spread throughout both urban and rural areas. The Windham and Windsor Housing Trust in Southern Vermont ranked second with 1,061 units of housing, and, in Rhode Island, Newport’s Church Community Housing Corporation ranked third at 940 units, according to figures reported to the national support organization Grounded Solutions Network, which only has data on its member organizations.

In New York City, the only fully established community land trust is the Cooper Square CLT in the Lower East Side, which formed in 1994. The land is owned by the CLT while 21 buildings, compromising 328 apartments, are owned by an entity called a Mutual Housing Association, which is a multi-building self-governing cooperative that makes bulk purchases for all the buildings. Over time, most of the apartments were converted from rentals to low-income co-op units.

The organization was one of the recipients of the Enterprise Community Partners grant, which has allowed it to make some new hires and pay for some additional tenant organizing. Cooper Square now has its own visions of expansion: It’s discussing the acquisition of two Housing Development Fund Corporation (HDFC) buildings in the neighborhood, and it also has its eyes on a desanctified church that it believes could encompass 80 to 100 more units of housing.

“We want to expand because we want to be able to help out our neighbors in low-income housing that is threatened, but the second part of it has to do with the economies-of-scale piece, and that is, as you get more buildings and more apartments, you can purchase fuel at a deeper discount,” says Dave Powell, executive director of the Cooper Square Mutual Housing Association.

There are dozens of other organizations seeking to follow Cooper Square’s lead. The New York City Community Land Initiative (NYCCLI), a CLT advocacy organization co-founded by Picture the Homeless, New Economy Project and other organizations, helped to launch the East Harlem-El Barrio Community Land Trust a few years ago. As City Limits earlier reported, the land trust sought to acquire not only vacant property but also to invite tenants in city-owned Tenant Interim Lease (TIL) program buildings onto the land trust.

After several years of organizing, the De Blasio administration has agreed to turn over four buildings in the neighborhood to the CLT. The CLT received $500,000 from Enterprise, which it will use for both renovations and to hire an organizer, and $500,000 from City Council Speaker Melissa Mark-Viverito for renovations to the buildings, which will be executed by the non-profit affordable housing organizations Banana Kelly CIA Inc and CATCH. The city is exploring making additional budget commitments for rehabilitation, as well. Residents in those buildings will be renters and participants in a Mutual Housing Association.

Then there’s Interboro CLT—a newly formed collaboration between four well-established housing organizations: Habitat for Humanity New York City, the Urban Homesteading Assistance Board, the Mutual Housing Association of New York and Center for New York City Neighborhoods. The entity is focusing on the creation of permanently affordable homeownership opportunities throughout the city, likely with a starting focus on Southeast Queens and Central Brooklyn. Interboro received funding from Enterprise as well as $1 million from Citi Community Development last year to begin its first 250 units.

The Enterprise Grant also funded NYCCLI to run a “Learning Exchange” to help nine nonprofits and community groups learn more about what it would take to build a CLT. Some of those groups, like Northfield Community Local Development Corporation in Staten Island and CAAAV Organizing Asian Communities in Chinatown, are still in the earliest stages and have not yet named specific properties they hope to acquire.

Others are already at the point of naming addresses. The Mary Mitchell Family & Youth Center hopes to launch a Crotona CLT in the Bronx and has its eyes on three properties owned, respectively, by the city, itself and an ally. The Center’s vision includes a garden, community and nonprofit space and low-income housing, probably mostly rental units. The Mott Haven-Port Morris Community Land Stewards in the South Bronx are trying to acquire two government-owned buildings for low-income rentals and nonprofit space, has already begun stewarding some state-owned green spaces along the Deegan Expressway, and envisions turning areas along the waterfront into community land trust greenspaces.

“We’re not developers, and we’re not trying to be developers. What we’re trying to do is create a situation where the community can really be a steward of space and then hire professionals to manage what’s on top of the ground,” says Mychal Johnson, a founder of Mott Haven-Port Morris Community Land Stewards. On a citywide level, Johnson would like to see more NYCHA complexes turn land over to CLTs, so that decisions about the future of any NYCHA spaces can be made in tandem with residents and the community, rather than decided by the authority. In particular, stakeholders could explore opportunities to convert apartments in some NYCHA developments into affordable cooperative homeownership units on a CLT, he says.*

Another participant in the Learning Exchange, Community Solutions, envisions the creation of a Brownsville CLT including 91 HPD-owned vacant lots in the neighborhood that they believe could hold more than 1,000 units of both rental and homeownership housing. To start, they hope the CLT can acquire several vacant lots where the city is already seeking a developer as part of its efforts to fulfill the goals of its Brownsville Plan.

Given the scarcity of public land and the skyrocketing values of private property in most parts of the city, one might wonder if New York City may be getting on the CLT bandwagon too late. Some advocates, however, still hope that in the future, CLTs—especially those that are community-driven and provide deeply affordable housing—will encompass a significant mass of the city. Johnson says ideally he’d like to see at least 25 or 50 percent of the 300,000 units in the mayor’s affordable housing plan rest on a CLT. Lynn Lewis of the East Harlem-El Barrio CLT board and Del Rio similarly say their ideal vision would be hundreds of thousands of units throughout the city on a CLT.

There’s a long way to go to such a vision, but there’s already some ideas on the table about how to get to something the size of Burlington’s CLT. City Limits spoke to the city’s CLT groups about the number of units they envision could be built on specific properties they are currently seeking to acquire. Those projects add up to between 2,000 and 3,000 potential CLT units. The count does not include the potential units of groups in early stages, future units these groups may try to acquire, or units from any additional groups that did not speak with City Limits.

The ingredients for success

Asked what the Mott Haven-Port Morris CLT requires to succeed, Johnson says the biggest need is for funding to hire staff people to carry out day-to-day operations. “No one’s getting paid in our organization,” he says. Many other organizations trying to start CLT also spoke about the need for money to hire staff, legal counsel, and pay for community organizing and education, given that so many people still have never heard of a CLT. The funding from Enterprise has enabled some groups to hire organizers, but will only last a couple years.

New Economy Project’s Del Rio would like to see the City Council establish a funding program for CLTs as they did in 2014 for worker cooperatives and make annual appropriations. NYCCLI has in the past called for a housing trust fund underwritten by higher taxes on vacant and luxury properties. Matt Dunbar of Habitat NYC says they’re advocating for the state to put more money into the Affordable Home Ownership Development program, which funds the building and rehabilitation of affordable homeownership opportunities, and to mandate that all the program’s projects include resale restrictions to maintain permanent affordability.

Habitat NYC is also advocating for a state property tax exemption for community land trusts. This will serve as a back-up measure to the provision in the new City Council law that allows the city’s CLTs to obtain Article XI tax exemptions, and it will also help CLTs in other parts of the state.

It’s not just because Bernie Sanders was hanging out in Vermont that our northern neighbor has the nation’s two largest community land trusts. In 1987, the state passed the Vermont Housing and Conservation Trust Fund Act, which allocated funds from a property transfer tax to a trust fund to be used for conservation projects as well as affordable housing. The Act also mandated that any housing subsidized by Vermont be used for the creation of permanently affordable low-income housing built by nonprofit charities or CLTs. “If every city did that, it would make a huge difference,” says Hiller of Grounded Solutions Network.

Indeed, beyond just funding, advocates are pushing for policies that facilitate the transfer of city-owned, or distressed, privately owned land to CLTs, such as by prioritizing CLTs when seeking partners to develop public land.

“We would like all the city-owned properties in East Harlem to be taken off the table—and I’m talking vacant lots, I’m talking city-owned buildings, and, you know, buildings are continuously going into tax liens sales and TPT,” says Lewis, referring to the Third Party Transfer program, which transfers severely distressed buildings in tax foreclosure to new owners. She also mentions distressed low-income co-ops that could benefit from the cost-savings of joining a larger entity, and East Harlem’s many abandoned, boarded-up privately owned buildings. Lewis would like the city to come up with policies that help move all such properties to a CLT. (Boston’s famous CLT, Dudley Neighbors Incorporated, formed when the city gave a community organization the power to take property through eminent domain.)

But Lewis also recognizes that getting the city’s trust requires time and effort, and there’s some justification for that. “We don’t want a situation where anybody who walks up to HPD says I want this vacant plot, and they say ‘ok, here,’” she says, adding that she’s encouraged by signs of HPD’s growing interest in CLTs.

CLTs are currently welcomed to respond to RFPs but are not given special preference or priority. The city says it does, however, give preference for projects that offer extended affordability beyond the minimum regulatory period.

“We recognize that community-driven solutions are key to the progress of housing development and preservation. We believe [in] harnessing and nurturing these groups that are uniquely positioned to fill gaps in our robust programming,” wrote Juliet Morris, a spokesperson for HPD, in an e-mail.

The challenges of growth

Some tenant advocates emphasize that expanding CLTs shouldn’t be the only goal of the housing movement at the expense of all others. There are nonprofit affordable housing developers who hope that the excitement over CLTs doesn’t distract from their battle to ensure the nonprofit sector as a whole receives a larger share of the development pie—rather than create a situation where, as one developer puts, “non-profits and CLTs end up fighting for scraps while HPD continues to steer land, buildings, and funding to their for-profit partners.”

Others caution that CLTs by themselves may not be enough to bring displacement to a halt. Cooper Square may have protected low-income residents on a couple blocks in the Lower East Side, but that has not, of course, prevented the rest of that neighborhood from gentrifying.

“It’s a great moment. We’re very excited for the potential for this movement to grow and expand, but the other side of this is that the CLT piece is not a panacea, it’s one part of a larger movement that we’re part of,” says Powell. “If we don’t simultaneously insist that NYCHA housing is defended, and NYCHA residents are defended—if we don’t simultaneously insist that vacancy decontrol in rent-stabilized housing is abolished, then we win the battle but lose the war.”

There have been cases where the administration has touted investment in CLTs as part of a larger land use project that CLT advocates may or may not agree with. When the East Harlem rezoning was approved by the Council in November, the de Blasio administration and Mark-Viverito listed “fund and support the East Harlem-El Barrio Community Land Trust” as one of the investments the city would make in the neighborhood. Lewis says the CLT board actually took a stance against the rezoning, which, in her view, makes East Harlem “opened up like a piñata for developers to come in and snatch properties.” She’s now waiting to see to what degree the city actually supports the CLT going forward. “How can the CLT really be a ‘community benefit’? What does that really mean?” she says.

These concerns aside, there’s also the question of how to balance the CLT movement’s desire for scale with the goal of thorough community engagement. Given the rapid creep of gentrification into outer borough neighborhoods—and the urgency of the affordability crisis—it’s logical that some CLT advocates would want CLTs to establish themselves efficiently and acquire land as fast as possible.

“From the perspective of addressing a housing challenge…I would rather see 100 units be permanently affordable from a Habitat [for Humanity], versus five over 15 years from a community-based organization,” says Hiller.

But if CLTs are going to be truly community-based and community governed—not just another tool pushed forward by large, if benevolent nonprofits—they’ll require a level of careful community engagement that could take much longer.

Hiller adds that she deeply values community engagement and that ideally New York City’s CLT movement will create a structure that allows for both efficient expansion and grassroots connections. This might look like a “hub and spoke” system where there’s a central organization with development capacity that is connected to many neighborhood groups that are facilitating on-the-ground conversations, she says. Indeed, NYCCLI is actually in the early stages of exploring a citywide community land trust that would be able to provide administrative support, and acquire properties, on behalf of smaller groups that are rooted in neighborhoods.

If CLTs want to go big, they will ultimately grapple not only with the issue of securing resources and land, but also with how to establish their legitimacy while at the same time staying loyal to, as Del Rio says, the “C” in CLT.

“One thing that people really want to make sure is that scale doesn’t lead to a dilution of mission or connection to the community,” says Del Rio. “What are the mechanisms to ensure that CLTs really respond to and are led by community members?”

One CLT in Focus
The current and planned sites of Banana Kelly’s Community Land Trust.

*Amended to clarify Johnson’s vision.

Header image: Adi Talwar, A CLT in the East Village. 25 East 3rd Street flanked by 23 East and 27 East 3rd Street to the left and right respectively. The three buildings are a part of the Cooper Square Community Land Trust.

The post The NYC Community Land Trust Movement Wants to Go Big appeared first on P2P Foundation.

Virtuous rent: a rudder that can transform our economy.

Peter Barnes: The London Underground abounds with warnings to “mind the gap,” referring to the space between station platforms and train doors. In our larger society similar warnings could be issued for the gaps between rich and poor and between humans and nature. These gaps must not only be minded, they must also be narrowed. The persistent question is how to do this, and I con­tend that a form of rent may be the best possible tool. But before we get to that, we must first become familiar with rent.

The term was first used by classical economists, including Adam Smith, to describe money paid to landowners. It was one of three income streams in the early years of capitalism, the others being wages paid to labor and interest paid to capital.

In Smith’s view, landlords benefited from land’s unique ability to enrich its owners “independent of any plan or project of their own.” This ability arises from the fact that the supply of good land is limited, while the demand for it steadily rises. The effect of landowners’ collection of rent, he concluded, isn’t to increase society’s wealth but to take money away from labor and capital. In other words, land rent is an extractor of wealth rather than a contributor to it.

A century later, a widely-read American economist named Henry George (his magnum opus, Progress and Poverty, sold over two million copies) enlarged Smith’s insight substantially. At a time when Karl Marx was blaming capital­ists for expropriating surplus value from workers, George blamed landlords for expropriating rent from everyone. Such ­rent­ extraction operated like “an immense wedge being forced, not underneath society, but through society. Those who are above the point of separation are elevated, but those who are below are crushed down.” George’s proposed remedy was a steep tax on land that would recapture for society most of landowners’ parasitic gains.

More recently, the concept of rent was expanded to include mono­poly pro­fits, the extra income a company reaps by quashing com­pe­tition and raising prices. Smith had written about this form of wealth extraction too, though he didn’t call it rent. “The interest of any particular branch of trade or manufac­tures is always to widen the market and to narrow the competition…To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can only serve to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens.”

It’s important to recognize that the tax Smith spoke of isn’t the kind we pay to government; rather, it’s the kind we pay, much less visibly, to businesses with power. That’s because prices in capitalism are driven by four factors: supply, demand, market power and politi­cal power. The first two, which are omnipresent in economics texts, deter­mine what might be called fair market value; the last two, which are prevalent in the real world, determine rent. Actual prices charged are the sum of fair market value and rent. Another way to say this is that rent is the extra money people pay above what they’d pay in truly com­pe­titive markets.

More recently, the term has been further extended to include income from privileges granted by government—import quotas, mining rights, subsidies, tax loop­holes and so on. Many econo­mists use the term “rent-seeking” to describe the multiple ways special interests use govern­ment to enrich them­selves at the expense of others. If you’re wondering why Washington, D.C. and its envi­rons have grown so prosperous in recent decades, it’s not because govern­ment itself has become gargantuan, it’s because rent-seeking has.

In short, traditional rent is income received not because of anything a person or business produces, but because of rights or power a person or business possesses. It con­sists of takings from the larger whole rather than additions to it. It redis­tributes wealth within an econ­omy but doesn’t add any. As British economist John Kay put it in the Financial Times, “When the appropriation of the wealth of others is illegal, it’s called theft or fraud. When it’s legal, it’s called rent.”

Because rent isn’t listed separately on any price tag or corpor­ate in­come statement, we don’t know exactly how much of it there is, but it’s likely there’s quite a lot. Consider, for example, health care in America, about one-sixth of our economy. There are many reasons the U.S. spends 80 percent more per capita on health care than does Canada, while achieving no better results, but one of the biggest is that Canada has wrung huge amounts of rent out of its health care system and we haven’t. Every Canadian is covered by non-profit rather than profit-maximizing health insurance, and pharmaceuti­cal prices are tightly controlled. By contrast, in the U.S., drug companies overcharge because of patents, Medicare is barred from bargaining for lower drug prices, and private insurers add many costs and inefficiencies.

Or consider our financial sector. Commercial banks, the kind that take depo­sits and make loans, receive an immensely valuable gift from the federal gov­ernment: the right to create money. They’re allowed to do this through what’s called fractional reserve bank­ing, which lets them lend, with interest, about ten times more than they have on deposit. This gift alone is worth billions.

Then there are commercial banks’ cousins, investment banks, which are in the business of trading securities. They can’t mint money the way commercial banks do, but they have tricks of their own. For one, they charge hefty fees for taking private companies public, thus seizing part of the liquidity pre­mium public trading creates. For another, they make lofty sums by creat­ing, and then manipulating, hyper-complex financial “products” that are, in effect, bets on bets. This pumps up the casino economy and extracts capital that could otherwise benefit the real economy.

We could wander through other major industries—energy, tele­com­muni­ca­tions, broadcasting, agriculture—and find similar ex­tractions of rent. What percentage of our economy, then, consists of rent? This is a question you’d think economists would explore, but few do. To my knowledge, the only prominent economist who has even raised it is Joseph Stiglitz, a Nobel laureate at Columbia University, and he hasn’t answered it quantitatively.

The amount of rent in the U.S. economy, Stiglitz says, is “hard to quantify (but) clearly enormous.” Moreover, “to a significant degree,” it “redistributes money from those at the bottom to those at the top.” Further, it not only adds no value to the economy, it “distorts resource allocation and makes the econ­omy weaker.” 

So far I’ve described rent as a negative force in our economy. Now I want to introduce the concept of virtuous rent, a form of rent that would have distinctly positive effects.

A perfect example of virtuous rent is the money paid to Alaskans by the Alaska Permanent Fund. Since 1980, the Permanent Fund has distributed equal yearly divi­­dends to every person who resides in Alaska for one year or more. The divi­dends—which have ranged from $1,000 to $3,269 per person —come from a giant mutual fund whose beneficiaries are all the people of Alas­­ka, present and future. The fund is capitalized by earnings from Alaska’s oil, a commonly owned resource. Given the steady flow of cash to its entire pop­u­la­tion, it’s not surprising that Alaska has the highest median income and one of the lowest pover­ty rates of any state in the nation.

Broadly speaking, virtuous rent would be any flow of money that starts by raising the cost of harmful or extractive activity and ends by increasing the incomes of all members of society. Another way to think of it is as rent that we, as collective co-owners, charge for private use of our common assets. Think, for example, of charging polluters for using our common atmosphere and then sharing the proceeds equally.

There are two key differences between traditional and virtuous rent. The first has to do with how the rent is collected, the second with how it’s distributed.

Traditional rent is collected by businesses whose market and/or political power enables them to charge higher-than-competitive prices. It leads to higher prices that serve no economic, social or ecological function. Virtuous rent, by con­trast, would be collected by not-for-profit trusts that represent all mem­bers of a polity equally. It would be generated by charging private busi­nesses for using common assets that most of the time they use for free. Such rent would also lead to higher prices, but for good reasons: to make business­es pay costs they currently shift to society, nature and future genera­tions, and to offset traditional rent.

The second difference is distributional. Traditional rent flows upward to the small minority that owns most of the stock of rent-extracting businesses. Virtuous rent would flow to everyone equally.

When collection and distribution are merged, the effects of traditional rent are doubly negative: it diminishes the efficiency of our economy and the in­comes of all those who pay it but don’t get any. The effects of virtuous rent, by con­trast, are doubly positive: it increases the health and fairness of our economy and the security of our middle class.

At this moment, of course, traditional rent totals trillions of dollars a year, while virtuous rent (out­side of Alaska) is more of a concept than a reality. But virtuous rent can and should grow. To understand how this could hap­pen, it’s necessary to ex­plore two other concepts: common wealth and exter­nalities.

Common wealth has several components. One consists of gifts of nature we inherit together: our atmosphere and oceans, water­sheds and wetlands, forests and fertile plains, and so on. In almost all cases, we overuse these gifts because there’s no cost attached to using them.

Another component is wealth created by our ancestors: sciences and techno­lo­gies, legal and political systems, our financial infra­structure, and much more. These confer enormous benefits on all of us, but a small minority reaps far more financial gain from them than do most of us.

Yet another chunk of common wealth is what might be called “wealth of the whole”—the value added by the scale and syner­gies of our economy itself. The notion of “wealth of the whole” dates back to Adam Smith’s insight two-and-a-half centuries ago that labor specialization and the exchange of goods —pervasive features of a whole system—are what make nations rich. Beyond that, it’s obvious that no business can prosper by itself: all busi­nesses need cus­­tomers, suppliers, distributors, highways, money and a web of comple­men­tary products (cars need fuel, software needs hardware, and so forth). So the economy as a whole is not only greater than the sum of its parts, it’s an asset without which the parts would have almost no value at all.

The sum of wealth created by nature, our ancestors and our econ­omy as a whole is what I here call common wealth. Several things can be said about our common wealth. First, it’s the goose that lays almost all the eggs of private wealth. Second, it’s extremely large but also (like the dark matter of the universe) mostly invisible. Third, because it’s not cre­ated by any indivi­dual or business, it belongs to all of us jointly. And fourth, because no one has a greater claim to it than anyone else, it belongs to all of us equally, or as close to equally as we can arrange.

The big, rarely asked question about our current economy is who gets the benefits of common wealth? No one disputes that private wealth creators are entitled to the wealth they create, but who is entitled to the wealth we share is an entirely different question. My contention is that the rich are rich not so much because they create wealth, but because they capture a much larger share of common wealth than they’re entitled to. Another way to say this is that the rich are as rich as they are—and the rest of us are poorer than we should be—because extracted rent far exceeds virtuous rent. If that’s the truth of the matter, the solution is to diminish the first kind of rent and increase the second kind. 

Externalities are a better-known concept than common wealth. They’re the costs businesses impose on others—workers, communities, nature and fu­ture generations—but don’t pay themselves. The classic example is pollution.

Almost all economists accept the need to “internalize externalities,” by which they mean making businesses pay the full costs of their activities. What they don’t often discuss are the cash flows that would arise if we actually did this. If businesses pay more money, how much more, and to whom should the checks be made out?

These aren’t trivial questions. In fact, they’re among the most momentous questions we must address in the twenty-first century. The sums involved can, and indeed should, be very large—after all, to diminish harms to nature and society, we must internalize as many unpaid costs as possible. But how should we collect the money, and whose money is it?

One way to collect the money was proposed nearly a century ago by British economist Arthur Pigou, a colleague of Keynes’ at Cam­bridge. When the price of a piece of nature is too low, Pigou said, government should impose a tax on using it. Such a tax would reduce our usage while raising revenue for government.

In theory Pigou’s idea makes sense; the trouble with it lies in imple­mentation. No western government wants to get into the business of price-setting; that’s a job best left to markets. And even if politicians tried to adjust prices with taxes, there’s little chance they’d get them “right” from nature’s perspective. Far more likely would be tax rates driven by the very corporations that domi­nate government and overuse nature now.

An alternative is to bring some non-governmental entities into play; after all, the reason we have externalities in the first place is that no one represents stakeholders harmed by shifted costs. But if those stakeholders were repre­sent­ed by legally accountable agents, that problem could be fixed. The void into which externalities now flow would be filled by trustees of common wealth. And those trustees would charge rent.

As for whose money it is, it follows from the above that payments for most externalities—and in particular, for costs imposed on living creatures present and future—should flow to all of us together as beneficiaries of common wealth. They certainly shouldn’t flow to the companies that impose the exter­nalities; that would defeat the purpose of internalizing them. But neither should they flow to government, as Pigou suggested.

In my mind, there’s nothing wrong with government taxing our individual shares of common wealth rent, just as it taxes other personal income, but government shouldn’t get first dibs on it. The proper first claimants are we, the people. One could even argue, as economist Dallas Burtraw has, that government capture of this income may be an unconstitutional taking of pri­vate property.

This brings us back to virtuous rent. There are several points that can be made about this sort of rent.

First, paying virtuous rent to ourselves has a very different effect than paying extractive rent to Wall Street, Microsoft or Saudi princes. In addition to dis­couraging overuse of nature, it returns the money we pay in higher prices to where it does our families and economy the most good: our own pockets. From there we can spend it on food, housing or anything else we choose. Such spending not only helps us; it also helps businesses and their employees. It’s like a bottom-up stimulus machine in which the people rather than the government do the spending. This is no trivial virtue at a time when fiscal and monetary policy have both lost their potency.

VIRTUOUS RENT

Second, virtuous rent isn’t a set of government policies that can be changed when political winds shift. Rather, it’s a set of pipes within the market that, once in place, will circulate money indefinitely, thereby sustaining a large middle class and a healthier planet even as politicians and their policies come and go.

And third, though virtuous rent requires government action to get started, it has the political virtue of avoiding the bigger/smaller government tug-of-war that paralyzes Washington today. It thus can appeal to voters and politicians in the center, left and right.

A trim tab is a tiny flap on a ship or airplane’s rudder. The designer Buck­minster Fuller often noted that moving a trim tab slightly turns a ship or a plane dramatically. If we think of our economy as a moving vessel, the same metaphor can be applied to rent. Depending on how much of it is collected and whether it flows to a few or to many, rent can steer an economy toward extreme inequality or a large middle class. It can also guide an economy toward excessive use of nature or a safe level of use. In other words, in addi­tion to being a wedge (as Henry George put it), rent can also be a rudder. An economy’s outcomes depend on how we turn the rudder.

Think about the board game Monopoly. The object is to squeeze so much rent out of other players that you wind up with all their money. You do this by acquiring monopolies and building hotels on them. However, there’s another feature of the game that offsets this extracting of rent: all players get a cash payment when they pass Go. This can be thought of as virtuous rent.

As Monopoly is designed, the rent extracted through monopoly power greatly exceeds the virtuous rent players receive when pass­ing Go. The result is that the game always ends the same way: one player gets all the money. But sup­pose we tip the scale the other way. Suppose we decrease the extracted rent and increase the virtuous kind. For example, we could pay players five times as much for passing Go and reduce hotel rents by half. What then happens?

Instead of flowing upward and concentrating in the hands of a single winner, rent flows more evenly. Instead of the game ending when one winner takes all, the game continues with many players remaining.

The point I wish to make is that different rent flows can steer a game—and more importantly, an economy—toward different outcomes. Among the out­comes that can be affected by differing rent flows are the levels of wealth co­n­centration, pollution and real investment as opposed to specu­lation.

Rent, in other words, is a powerful tool. And it’s also something we can fiddle with. Do we want less extracted rent? More virtuous rent? If so, it’s up to us to build the pipes and turn the valves.

Photo by Paul Housberg

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This post is part of our series of articles on the Urban Commons sourced from the Green European Journal Editorial Board. These were published as part of Volume 16 “Talk of the Town: Exploring the City in Europe”. In this instalment, Julia Toynbee Lagoutte and Samir Jeraj discuss housing rights in the UK.

The pitter patter of a keyboard hums in the dust-speckled London space. Two tattered sofas in the corner are dwarfed by 70 square metres of open office space. Matthew, a thirtysomething freelance documentary film-maker, is working from home. One floor down, along from an old reception area, is a makeshift kitchen shared with 12 other people. Matthew is a property guardian, one of many thousands living in European cities such as London. Property guardianship started out in the 1990s in the Netherlands as ‘Anti-Kraak’ (anti-squat), a way to counter squatting. The owner of a building would employ a company to manage the building until it was sold, demolished, or redeveloped. That company would find people – often students and artists who needed cheap living and working space – to live in the building for below market rents and very short-notice agreements. The building would remain occupied, and thus secured against squatting. Some of these companies are set up for the sole purpose of property guardianship while for others property guardianship is one option in their portfolio of security measures. These businesses have since spread from the Netherlands to other parts of Europe; industry pioneer Camelot Europe has offices in the UK, Ireland, Belgium, Germany, and France.

Whilst initially seen as a marginal and stopgap solution for students or artists, property guardianship in London and elsewhere has become increasingly normalised, formalised, and expensive. Amidst the largely positive press, criticisms from lawyers and guardians themselves have joined those of squatter and housing organisations, pointing out that the legal grey area guardians occupy – as neither security guards nor tenants – opens the door wide open to exploitation of this new class of ‘sub-tenants’. On top on this, this practice represents a symptom of a problem; a symptom that has managed to market itself as a solution.

Where are my rights?

Property guardians in the UK are legally classed as ‘licensees’, not tenants (they pay a ‘license fee’, rather than rent). They are not protected by tenant rights, such as those regarding privacy and tenure. The average contract between a guardian and the property guardianship company would include: the right for the company to visit all areas of the property at any time without warning; no pets or children (even to stay one night); no guests in the building without the guardian present. Some properties are not subject to HMO (houses of multiple occupancy) laws about about how many toilets and showers are needed for a certain number of people, for example*. In one old doctor’s surgery in South London, nine guardians shared one shower and one kitchen. Many properties don’t have internet or phone lines and often guardians are not allowed to install washing machines or ovens – the short notice period means this is often not worth the cost anyway. The deposit guardians have to give to their property guardianship company (up to 800 pounds) is not legally protected, and companies such as Camelot are notoriously bad at returning them. Initially, guardians were given as little as 24 hours to move out but this has increased to 28 days after lawyers highlighted this was not legal. Many contracts also prevent guardians from speaking to the media about their experience.

In order to legally protect themselves from having to provide tenants’ rights, property guardianship companies ensure guardians cannot claim ‘exclusive access to a space’, one of the key conditions of being a tenant. This they do through unannounced visits to the guardians’ rooms whenever they want, often once or twice a month. Mirela, a mental health nurse from Romania, explained, “I don’t feel comfortable with a stranger coming in my room and finding a note when I come back. Someone has been here. I feel like my space is invaded and also because I’m quite tidy I wouldn’t like people to know if I have clothes around. I’m paying, at least give me my privacy.”

Guardians are not protected from sudden rent hikes: one morning Matthew received an email informing him his monthly ‘fee’ would increase from 350 to 550 pounds the following month. Guardians have no idea whether they will stay 28 days or three years in a place. Alice, an archaeology graduate working in tourism, was given notice to leave within two weeks of moving into a new place, shouldering time and financial burdens that she could ill afford. The lack of security built into being a guardian affects their homemaking; they tend to make less effort or have less furniture and a more makeshift and temporary feeling leads to many never really feeling at home, even after years of inhabiting a place (especially knowing a stranger could enter at any moment). This is particularly visible in larger properties – such as ex-care homes or old office buildings – with locks on cupboards, new guardians coming and going without input from other residents, and the anonymous feel of a hostel.

Many guardians report feeling anxious about the possibility of having to move on and uncomfortable with the lack of privacy and rights. Alice remarked of living in a property guardianship that “I didn’t feel secure, I never felt stable.”

Pop-up people

Looking at the characteristics required of a guardian, we can begin to see how property guardianship represents an extension of deeper contemporary socio-economic trends into the area of housing. For the characteristics required of them – reliable, flexible, disposable – are also those of the growing group of people who make up what economist Guy Standing has dubbed the ‘precariat’. For this ‘class-in-the-making’, work is increasingly precarious, short-term, and flexible. The rise of zero-hour contracts exemplifies this: in the UK today there are 1.7 million zero-hour contracts, making up 6 per cent of all employment contracts. This is four times higher than in 2000.

This shift towards temporary jobs and being ‘independent contractors’ underpins what many have called the ‘sharing economy’ but in reality is better described by the term the ‘access economy’. This includes platforms that enable people to monetise temporary access to their assets – such as their property (Airbnb) or their cars (Uber and Lyft) – and platforms that just connect service users with service providers, such as Deliveroo. Property guardianship as a platform linking service users with service providers to extract money from the use of temporarily empty properties, and the provision of this service by people on insecure and right-less contracts, is the epitome of these processes. It is a new manifestation of these under-the-surface dynamics that foster ever more imaginative efforts to bring new areas into the market and extract profit from them; bringing it to a level at which even the spaces in between the owner’s usage – when assets are apparently unused – can be used to extract money. In a new twist, guardians also pay for the privilege of providing the service of guarding properties.

The rights of the ‘pop-up people’ who maintain these new structures have been watered down if not dissolved. Just as guardians don’t have tenants’ rights, Uber drivers or Deliveroo couriers as independent contractors shoulder the financial investments and risks of their trade and don’t have rights such as sick pay or insurance. Just as Uber doesn’t have the responsibilities towards its drivers that taxi companies do towards theirs, property guardianship companies do not have the same obligations towards their guardians as a landlady towards her tenants.

What this represents in the broader picture is the creation of new structures of work and living which appear the same as before, but lack the same rights and protection and require a huge level of flexibility and insecurity of the person providing the service. Property guardianship represents the creeping of these processes of flexibilisation, precarity, and decreased rights into the new area of housing. In this scheme, which seems more emblematic of neoliberal logics the more one learns about it, housing becomes a by-product of providing a service, not a right. These pop-up people are also commodified as products as well as service users: guardians’ bodies are effectively replacing infrastructure (security companies would previously have boarded up the buildings and installed CCTV). Guardians like Matthew, Alice, and Mirela are also products marketed to property owners; “we provide reliable and trustworthy guardians”, as Ad Hoc Property Guardians company boasts. Guardians often have to provide references and, in some cases, proof of a social conscience and willingness to invest in the local community (such as with Dotdotdot Property Guardians).

Whose city?

More than most cities in Europe, London shows us how extreme the housing crisis can get. Private renters there spend around 70 per cent of their income on rent, sterile luxury developments are being built in areas once known for being affordable and vibrant, and social housing is being demolished and neglected, and replaced with private housing – with young professionals displacing working-class people who are pushed further and further out. Property guardianship plays a role in facilitating this.

Research by Green London Assembly Member Sian Berry found that 24 out of London’s 32 local governments were using property guardians in their empty properties, with over 1,000 people in over 200 publicly-owned buildings in 2016. East London’s iconic social housing building, Balfron Tower, was recently transferred to a housing association. Since its social residents were moved out in 2014 for so-called ‘refurbishments’ guardians have lived there, and the housing association has now announced it will be renovating the flats with a property developer and selling them on the private market. By preventing neglect and squatting for years, property guardians unwittingly – for they are victims of these same processes – played a role in facilitating its passing from public to private hands, easing the process by allowing the housing association to sit on it without doing anything for several years.

This is actively encouraged by the state – through recent legal changes such as criminalising squatting in residential properties and loosening regulations about changing a building’s use from commercial to residential (to let guardians stay there), as well as the deregulation of the housing market that started under Margaret Thatcher in the 1980s. Almost all properties managed by property guardianship company Ad Hoc are in council-owned estates. Property guardianship also obscures and normalises the fact that there are so many empty houses in cities like London, private as well as council-owned, that have been emptied of residents in order to sell to private developers.

The point here is that property guardianship is not a natural and inevitable consequence of market forces in which people who need housing fit neatly into naturally empty spaces, but is part of a wider process where buildings that are in use are emptied of their residents and turned into vehicles for monumental levels of profit. Its increasing profitability is due to state intervention in some areas – in supporting property owners in extracting more rent from their properties – and the withdrawal of state intervention in others, when it comes to ensuring affordability and protection for tenants.

Whilst some guardians liked the idea of living in large and unusual spaces, most we spoke to were motivated by the high cost of renting. In this situation, renters in London are forced to trade in rights and security by becoming guardians for rents they can afford. And whilst the state is the main engineer of this process, the winners are private actors and companies for whom the London housing market is an increasingly lucrative cash cow – whether by buying up London’s public housing stock and turning it into unaffordable private accommodation or now through property guardianship (Camelot Europe having a yearly turnover of five to six million pounds). This slow takeover of publicly-owned properties and assets by private actors, supported by the state, is a classic feature of neoliberalism and bears out Naomi Klein’s argument that neoliberalism, rather than weakening the state, is highly dependent on it.

Confusing symptom with solution

Property guardianship is a symptom of London’s broken housing market – but its appearance as a win-win solution which both solves the blight of empty properties and provides cheap housing means it is confused by many with the solution. It thus obscures the extent of the problem and provides an excuse for politicians not to act. Owning empty property used to incur costs, but now it is increasingly profitable, and this will surely have an effect on property owners, just as research has shown that Airbnb drives up property prices. Whilst reinforcing the narrative that the ‘invisible hand of the market’ will eventually sort out all problems, property guardianship is actually state-led and it is part of the problem, not the solution – not only that, but it contributes to it, by normalising corporate control of housing, lower tenant rights, and insecurity, by easing the process of gentrification, and masking the extent of the problem. It is a new way of extracting rent from properties, exploiting people like Mirela, Alice, and Matthew’s desperate need for housing in London.

When David Harvey, in his seminal book Rebel Cities, wrote about the city as the factory for a new type of class struggle that would birth real revolutionary movements, he argued that it was against new types of urban rent extraction and human desperation such as property guardianship that these movements would arise. This edition explores how cities foster new forms of political and social experiments – yet these cannot be understood without identifying what they are reacting against. And whilst a key characteristic of the ‘precariat’ – and of guardians – is being fragmented, dispersed, and not rooted anywhere, which makes it harder to organise and demand their rights, groups of urban precariat workers, such as Deliveroo couriers and Uber drivers, are starting to stand up for their rights, as are guardians such as Rex Duis who has published a charter for property guardianship companies.

A recent court case in the British city of Bristol has called into question whether property guardianship will continue in the UK. Regardless of the outcome, this practice has exposed certain processes at play within European cities, such as the tendency to put the needs of corporate actors before even something as basic as the right to decent housing. It raises questions about urban space: how are neoliberal economic processes reshaping and curtailing people’s access to urban space, and how can this access be safeguarded? What will happen to the already feeble political will to solve the deep yet politically resolvable housing crisis of London and other European cities if the expansion of property guardianship is seen as a viable alternative? Instead of being a solution, property guardianship must be a catalyst to examine and respond to the worsening crisis it springs from.

*This article was updated on the 31st January 2018 to reflect new information.

The Green European Journal, published by the European Green Foundation, has published a very interesting special issue focusing on the urban commons, which we want to specially honour and support by bringing individual attention to several of its contributions. This is our 5th article in the series. It’s a landmark special issue that warrants reading it in full.

Photo by diamond geezer

The post Guardians of the Property: Pop-up Housing for Pop-up People appeared first on P2P Foundation.

Étienne Le Roy: Writing about commons as a member of a scientific community, which itself has developed only recently, has raised a number of problems for me.

First, there is the time lag with which the complex problem of the commons gained our attention in the first place. Why didn’t that happen fifty years ago? Why did it take so long to overcome the obstacles that made us unable to recognize social phenomena as commons phenomena and to think about them as such? Even though I had answers to many questions and was already writing within the paradigm of sharing, I was still unable to ask the questions using commons terminology.

The second problem lies in the fact that opening up the topic of the commons triggers a kind of domino effect. As soon as the first domino falls over – by invoking the commons – many of the concepts on which the idea of modern Western civilization rests lose their apparent balance, and the whole edifice, previously believed to be well-founded, collapses onto itself: the state, the law, the market, the nation, work, contracts, debts, giving, the juristic person, private property, as well as institutions such as kinship, marital law, and the law of succession, are suddenly called into question. We often consider these concepts to be universally valid, but intercultural comparison reveals that they are only a custom, a folkway that deeply influenced our modern Western legal tradition (which itself proves to be a folk law of its own).

Finally, the third problem has to do with the highly political, even polemic character of the contemporary commons debate, as currently expressed in France by Pierre Laval and Christian Dardot in their book Commun. Even the subtitle does not mince words: “Essay on the revolution in the 21st century.” Laval and Dardot bring important questions back into the academic debate, questions that Karl Marx raised as early as the mid-nineteenth century when reflecting upon the meaning and the role of capital.

The attention currently granted the commons suggests approaching these problems one by one, first in order to make the “question of the commons” comprehensible, and then to examine how they relate to contemporary law. One thing should be clear from the outset, however: theoretically, commons could be an alternative to the market and the state, but practically, we are a long way from achieving that. And if we follow Professor Elinor Ostrom, then the unresolved social question of the twenty-first century.¹ should in any case focus on how commons and private property might coexist and complement each other.

I graduated from university with degrees in anthropology and public law in 1964. While I was conducting research for my thesis (corresponding to a master’s degree today), I discovered Michel Alliot, a young professor coming from Africa, as well as the scientific discipline of legal anthropology and the land question in Africa, particularly in Senegal. These three discoveries were to change my life.

I selected Michel Alliot as my academic advisor and wrote my doctoral dissertation, one of the first in legal anthropology in France (Le Roy 1970), about the Senegalese land reform and Law 64-46, which was one of the first dissertations on legal anthropology in France. My ambition was to comment not only on the origins and roots of this reform, but also to explain what it actually sought to cover and regulate: namely consuetudinary law, or customary, unofficial types of law.²  I dug into the history of possession of land in a sub-Saharan African society, all the way back to the sixteenth century, and discovered the field of the commons, but could not find a concept, a term for it.

I later discovered that this was because of the ethnocentric ideology of colonialism³ and the foundations on which the thinking of the modern age and the notion of development of that time rested.⁴ So-called consuetudinary law was an Unidentified Scientific Object (USO). Only a few scholars had attempted to actually comprehend its more profound features. The scientific community usually dealt with legal phenomena in Africa as if they were the opposite of Western legal concepts developed over the past three centuries. Primitivism⁵ and scientific arrogance are never far apart.

This USO status of consuetudinary law also has to do with the fact that its rules are not formulated according to generally recognized standards or the impersonal criteria of modern laws; instead they manifest themselves as enduring patterns of behavior and the willingness of people to engage in certain forms of action that is stable over time. Now, these can be grasped and researched only by employing specific models, so I decided to use a matrix to represent consuetudes as legal acts. Legal acts not in the sense of written law, but in the sense of patterns that are expressed in behavioral rules that can be found in the various communities.

That is how I succeeded in responding to a phenomenon that I had just discovered and that challenged received bodies of research: legal pluralism. It was surprising that even by organizing my research according to the principles of a matrix analysis, I had already discovered the basic elements of the description of the commons – without being aware of it: a community in which everyone has status, an activity recognized and appreciated by the others, and a resource that – symbolically – permits the intentions and dispositions of everyone involved to be interconnected. In sum, a sanctionable system that amounts to “law.”

In my early works and in those of the 1970s in which I developed the anthropological models of the relationship of human beings to land (Le Roy 2011), I focused on the problem of communities. I could discern fundamental community-based conceptions that influence actions, and my discussions also included the civil-law concept of common goods. But however surprising from today’s perspective, the term “commons” never appeared in my work, even though the mbock thinking of the West African Wolof had already left its mark on my analyses.

Mbock – in the Wolof language – means kinship, and at its core, it also means sharing. At times, it refers to common ancestors, at others, to a particular field (with its specific area and boundaries), a herd, forest areas, and many other things. The discovery that sharing is preferred to exchange suddenly challenges all those insights that anthropology felt to be certain: namely, limited exchange within kinship relations, according to the theory of Claude Lévi-Strauss,⁶ the concept of the gift according to Marcel Mauss,⁷ that of property according to Maurice Godelier⁸, and others. Sharing is the predominant principle of organization in the commons. But I came to understand that only between 1980 and 1990 while I elaborated a new model for managing land and areas for fruit cultivation (Le Roy 1996). In that model, I attempted to explain how Africans (and other humans, too) combine various legal forms of property and resource uses in their complex practices – transcending cultural boundaries that we imagine as defining. Modern science considers the incompatibility or even incoherence of many such combinations practically a truism.

A Reform of Unforeseen Consequence

I told the stories of all these intellectual adventures in my synthesis on land policy on Senegal, from a theoretical perspective (Le Roy 2011). In it, I combined the legal relationships of individualistic modernity (public and private) with those of communitarianism (external, internal and coalitions). In other words, I correlated the categories publicand private, or a combination of the two, with external and internal, respectively. The concept of the common proved useful in ordering these relationships according to the following logic:

•  public = belonging to all
•  external = belonging to “n” groups
•  alliance = belonging to two or more groups
•  internal = belonging to one group
•  private = belonging to a juridical or physical individual, or legal entity

Doubtless, all these possibilities of collective organization did not already lead to what contemporary commons theory (Bollier 2014; Dardot & Laval 2014) considers to be “commons,” but since 1996, avant la lettre, at least this concept of the common has been at the center of my analyses of land policy. With a thirty-year time lag!

One of the reasons for this false start lies in the anthropological paradigm itself. It concerns itself with “the law” – in my case, regarding land use in Senegal. Accordingly, the conceptual and methodological tools that are required for understanding what has not and literally cannot be thought in the realm of consuetudinary law, can only be expressed in the intellectual categories of lawyers – in other words, norms and legal provisions. Whereas from the anthropologists’ perspective, “law [is] not so much what the texts say, but rather what the actors do with it” (Le Roy 1999). The texts are important, but how they are interpreted and applied is even more important. Or as a French saying goes, “It’s a long way from the cup to the mouth.” In the endogenous, oral African contexts, there are no texts that could be interpreted and no explicit norms which could be the subject of legal commentary. One can only observe the practices! By granting the requisite attention to the positions and roles of actors, their status, their actions and their interrelationships, anthropologists are able to escape the abstractions that fundamentally structure Western legal systems, but which are not to be found in the Wolof and other societies that anthropologists study.

The concept of the commons is an abstraction circulated first and foremost by the field of economics. And it is precisely in economics that Garrett Hardin’s all-too-famous “tragedy of the commons” parable has gained currency since its publication in 1968.⁹ For at least a generation this make-believe idea that shepherds are unable to use their pastures jointly has undermined and marginalized research on collective resource management. Incidentally, I admit that I did not take this laughable story seriously until the mid-1980s when I began to recognize the collateral damage of this pseudo-theory and its sloppy generalizations.¹⁰

The second reason for the false start of the commons in the intellectual debate concerns the theories on “development” applied to countries that were called “underdeveloped” at the time. By passing the Law Concerning the Territory of the Country,¹¹ Senegal finally emancipated itself from a development model that is fundamentally connected to the market and private property. This took place in the name of an African socialism that was at least as open to poet-president Léopold Senghor’s¹² Négritude – a poetic discovery of African roots – as it was to breaking with capitalism. Yet in this case, it was not about breaking with capitalism, but about placing limits on the outright dominance of private property norms – a legacy of the colonial era. Accordingly, Law 64-46 did not seek to abolish private property; it even permitted completion of all pending proceedings concerning private rights still awaiting resolution in land registry processes. Applications above and beyond this (for example, for recording further private real estate in the land registry) would thereafter be subject to the control of the administration. This provision was intended to prevent private property, which President Senghor called “egoistic” in a 1964 speech, from having direct effects on social relationships.

According to this reform, the only justification for transforming local, endogenous property rights into state property is to enable market transactions for the public good (Article 13), which then authorizes the state to transfer the rights to private individuals. This approach is based on the assumption that public institutions in Senegal, like any institutions of a liberal, democratic state, are neutral and fair-minded – a presumption that was unfortunately disproven by later facts. We shall see how this “nationalization” flirts with socialism. To this end, we shall first examine the wording of the law and then its practical application.

From the Wording of the Law…

Formally speaking, 96 percent of Senegal’s territory belongs to the nation-state; the remainder is publicly administered plots of land or private landholdings that have already been recorded in the land registry. This “territory belonging to the nation” has no legal personality and is not a legal entity, and so by default it belongs to the Senegalese state. Accordingly, what truly matters in a legal and political sense is the interpretation of the term “belong.” Article 2 interprets it in the sense of trust in a common-law context.

In other words, Law 64-46 changes the arrangements concerning possession of land in a way that is to prove forward-looking for Senegal, for colonial law usually treated these tracts of land as the private property of the state; they were considered unused, “ownerless” areas available to the administration for whatever it chose. Today, by contrast, they are entrusted to specific local administrators and divided into four areas subject to different regulations: 1) urban land; 2) development land (zones classées); 3) land in rural areas (zones de terroirs); and 4) pioneer areas.

A substantial part of this very brief law – just seventeen articles – is concerned with these zones de terroirs that are managed by rural collectivities (communautés rurales). This is where the most references to commons are to be found. The law states that “the land in rural areas (zones de terroirs) are used by members of the local municipalities who guarantee its management and conduct it under state control (…)” (Article 8) and that the decisionmaking power for specific uses (Article 9) or setting aside land (Article 15) lies with the relevant councils of the municipality rural community in question. That is one provision that would actually have authorized self-organization among people to create and formalize a culture of the commons – had party politics not interfered. And this is where real life comes into play.

…to Real Life

Building on my first fieldwork in 1969, and making use of my contacts with the Minister of Rural Development, Ben Mady Cissé, I wanted to get to the bottom of the land-policy questions raised by the experimental implementation of Law 64-46. Following the defense of my doctoral dissertation in 1970, I actually sent my research findings to President Senghor, who unfortunately entrusted them to his Minister of the Interior Jean Colin. Colin, a former colonial civil servant, had become Senegalese by marriage. He saw my findings as a threat to his own plans to place the rural communities under government supervision (in typical French-Jacobin manner) and manage them as regional grassroots collectives (collectivités territoriales de base). The transition from the principle of self-organization to integration in a central administrative network fundamentally changed the role of the rural municipalities’ communities despite the decentralization of government power in 1972.

Commons theory usually underlines the independence of commons from both the market and the state. While markets in Senegal were at a distance from commons, the state got quite involved in land use at the local level by reducing the autonomy of rural communities. The idea of the commons was not only nonexistent as a legal concept, but any disagreements about the commons were settled – at least officially.

Yet the Senegalese people on the ground continued to take up the original reform ideas. Despite a lack of sufficient administrative procedures and overly detailed interventions by the relevant divisions, people took on responsibility for managing their own resources and rallied behind an ethic to curb the spread of private property rights. Even the powerful religious Muslim brotherhoods cooperated, which cannot be said of domestic and foreign investors. They have called for repeal of Law 64-46 since 1980. But despite all the many controversies and conflicts, the law marked its fiftieth anniversary in 2014. Amazingly, despite political, economic, and procedural ambiguities and at times radical opposition in the highest echelons of the Senegalese state, in the end a logic of the commons prevailed in practice. Was this a unique case?

Functional Rather than Institutional Logic

In 2012, I decided to attend a conference for lawyers and legal historians at the University Paris VIII-Saint-Denis on the topic, “The Resurgence of the Commons: Between Illusions and Necessities,” whose debates were later documented in a publication (Parance and Saint Victor 2014). The conference painted a much more positive picture of the commons than was discernible at first from the invitation. I developed three arguments in my presentation:

1. Our modern society has lost the experience of commons and commoning.
2. The rediscovery of the commons suggests that the paradigm of sharing is more attractive than that of exchange.
3. The rise of commons necessarily raises the question about legal pluralism.

To provide evidence for this, I referred to two different experiences: land reforms in Africa and the island states of the Indian Ocean, as well as observations about French society in both urban and rural areas.

Land Reforms and the Limits of Private Property

Putting land reform into practice is always a delicate undertaking. In the African context, it also poses conundrums, because one often must create ownership of land in the first place where previously no such ownership existed – and at times the communities involved refuse to accept its existence at all. And for good reason: they feel safer if they are protected by kinship or other relationships where they live, and not by remote civil institutions directed by people unknown to them. The world has surely changed, but not for everyone, and not in a linear fashion.

The Senegalese land reform illustrated a combination of political concerns, lobbying by international donors, and uncertainty about the dynamics of rapidly changing societies. In the end, experts seeking to set policies face a dilemma. On the one hand, there is an officially proclaimed commitment to so-called modernization at the global level, which must in no case be abandoned; and on the other hand, the resilience¹³ of communities and societies in the face of countless changes must be supported or there may be outbreaks of unprecedented violence (Appadurai 2013). If it is impossible to reject “progress” in the modern capitalist sense, then at least changes must correspond to the needs of the entire population, and not only to those of the Westernized elite. And they must recognize the limits of reproducible and sustainable “development” driven by globalization.

Even if we researchers have not understood everything over the course of these roughly thirty years, at least we have all learned a lot, in particular through activities of the Association for the Advancement of Research and Studies on the Possession of Land in Africa (APREFA)¹⁴, which I chaired from 1986 until 1996. At the time, we established a technical committee – i.e., without political decisionmaking power – on possession of land and development, within the French Ministry of Foreign Affairs. We sought to bring together the researchers’ expertise with diplomats and development cooperation staff who need informed analysis. The committee pursued a notion of applied research and development cooperation practice, and at the same time sought to promote interdisciplinary basic research. Here, too, the central research question was about the extent and form in which private ownership of land was to be recognized.

Our work showed that private property¹⁵ and property (as its equivalent in common law) are necessary only in contexts in which the market, organized along capitalist principles, is ubiquitous. Various intermediate forms between a lack of titles of ownership on the one hand and “absolute” property on the other, can both accommodate the needs of local producers and reduce the risk of land-grabbing. The models for dominance and control of soil and natural resources described above are based on this assumption. So are the solutions used by various communities of practice who also implement a commons logic and ethic, but whose practices have rarely been described theoretically. This, too, is a lesson arising from our work: the illusions of development, according to which everyone was to somehow become a private property owner and entrepreneur. Such narrative ideals conceal the necessary displacement of populations, the consolidation of land rents into few hands, and the decline of smaller, more locally oriented producers.

Let us remember: good governance in twenty-first century land policy should include variable configurations of private and common property, always aligned to the needs of respective groups of people on the ground. The Senegalese experience began by desiring to control the expansion of private property rights. For this purpose, the state was accorded a role that it exceeded so tremendously that it in effect eclipsed the commons as a functional and legal entity in Senegalese villages. At the same time, we must recognize the importance of different types of property, just as various kinds of commons exist. This is precisely what my experience on the Comoros has taught me since 1986.

At the time, the FAO (the Food and Agriculture Organization of the United Nations) asked me to head a group of experts tasked with stabilizing land policy on the Comoros. A former French colony, the country experienced a revolutionary crisis between 1975, when it gained independence, and 1978. Among other things, this brought about the occupation of the former colonial properties, where vanilla and flowers for perfume were grown. It also resulted in all land registers being burned; entire archives were annihilated – and with them, the titles of ownership. In 1986, in an economically unstable situation and under pressure from international donors, the government was forced to clarify land policy in order to attract investors, and to do so without provoking new rounds of violence.

Since I was an expert on land rights, my job was to propose various scenarios. I outlined six options and described their potentials and limits. They ranged from “everything” (proactive and rapid expansion of private property to the entire population) to “nothing” (the government would settle for resolving the most sensitive conflicts, thus permitting local power relationships and local forms of negotiation to prevail). If, after almost thirty years, it looks like we are close to “nothing,” because no reform was ever formally put into practice, then we would be closing our eyes to the intellectual and technical revolution that permitted the functionaries of rural development to tackle the problem of land use according to the principle of inalienability that the government approved in 1987. The parliament of the Comoros was unable to fully implement the wording of the law because Hamed Abdallah, the president of the republic, was murdered in November 1989.

The future of major transnational corporations was in danger. And our challenge was now to stabilize smallholder agriculture, so that it could feed the country and guarantee the export of certain colonial goods. To do so, some innovations were necessary, for example, the enclosure¹⁶ of plant material on those lands that had previously been freely accessible and had been managed as village commons, but were used by individual families.¹⁷

In addition, technical consultants and rural technicians helped hold regular village administrative council meetings: reliable, but hardly formalized meetings of farmers and elders every Friday evening as they left the mosque. The meetings were intended to prevent problems and resolve local tensions before they developed into conflicts. The options I had presented in my legal texts were implemented in social practices because a culture of negotiation prevailed at all levels of political-administrative life, and because the notion of inalienability was favored over that of absolute property. The development consultants had two beneficial effects: they saved the government the political costs and uncertainties of land reform, and they guaranteed the citizenry a lifestyle that, although modest and often close to poverty, was more dignified than that of many of the country’s neighbors (such as Madagascar, which in 1991 had fallen back to its 1896 poverty level again).

Later on, I was to work in Madagascar, too, but only after two more assignments: the first one took me to Niger to contribute to drafting the country’s agricultural legislation (Code rural), the second to Mali, where I observed numerous legal inconsistencies concerning the possession of land. I had been tasked with helping to rescue the country’s cotton industry. All three countries – Niger, Mali and Madagascar – already had their own histories of land tenure law, so simply “copying and pasting” systems that seemed to work in other countries was unthinkable. That would have produced problems similar to those arising in the aftermath of colonialism: private ownership of land that could be used or sold for any purpose; undue state interference in property ownership; and no legal recognition of people’s traditional practices in managing land.

In Madagascar, I plunged into the so-called real economy and observed the wood energy sector. The communally managed eucalyptus plantings on the so-called tanety¹⁸ provided a livelihood for the local population. Then I expanded my research to the contractual relationships as I was interested in the substance and extent of leasehold clauses¹⁹ as well as sharecropping²⁰ and the true nature of the relevant property rights. I collaborated very closely with Alain Karsenty – a social economist working for CIRAD²¹, the French research center for international agricultural and development questions – and in 1996, I witnessed the adoption of the so-called GELOSE legislation by Madagascar’s government.

The law does not refer to “absolute property rights.” Instead, it authorizes the parties involved to negotiate resource management contracts, provided the relative security of property rights to land is guaranteed. In 2005 this step resulted in a more far-reaching land reform that permitted a trading office to be established in every municipality where so-called land certificates can be discussed and negotiated. The certificates are legally binding. They are legal documents that ensure the security of the transaction in the relevant administrative region, whereby the desire for more security naturally continues to be linked to the idea of (registered) land registry titles. The certificates provide an interesting middle course between communal management by like-minded people and land titles freely exchangeable on the market, but they are also called into question precisely for this reason. The experience in Madagascar has attracted a great deal of attention internationally, but has not been reproduced elsewhere.

Commons Re-emerge in France, Too

My other world of experience stems from the fact that since the mid-1970s, I have been thinking about how a scientific approach that up to then was exclusively Africanistic could be applied to French (or European) society. The basic idea was to establish legal anthropology, which was still an exotic field, “at home,” too, to get beyond ethnocentric perspectives. And while I was asking myself time and again what law actually was, I developed the idea to expand the fieldwork I had done in Senegal in 1969 and then in the Congo in 1972/73. I was looking for ways in which collective aspirations and communitarian practices were expressed in France – in the relationship between humans and land, and then in negotiations for managing conflicts in France’s juvenile justice system of the 1980s.

In exploring this question, I selected my own ethnic group as the object of investigation, since my cultural belonging made it easy for me to access certain pieces of information and behavior patterns; also, the people of Picardy in northern France are renowned for their consuetudinary law and I had privileged access to detailed information about a specific area within Picardy, the medieval county of Vermandois: it was genealogical material, “commonplace books,” a kind of calendar in which all economic activities, all sales and purchases, all work activities, special weather or political events, even laborers’ jokes, were recorded. The commonplace books as well as the business managers’ records provided the key to understanding how communal practices were retained in a world of farming that was increasingly subject to the capitalist market.

This world fell victim to the trenches on the Somme in 1916, which destroyed the historical legacy as well as the architecture and the landscape of the area.²² Since the eighteenth century, private property had become increasingly powerful in this region of the world. And in the nineteenth century, it continued to spread, but various social and legal practices still bore witness to common points of reference, to the obligation to “keep something jointly,” just as one “keeps company.” For example, commoning means sharing the art of hunting, the social protocols of weddings and funerals, the patronage of one’s own clients and workers, and all the traditions that express social belonging and solidarity in the face of life and death. In France as in Africa, the local agricultural milieu is rich in family relationships and professional ones. And just as in Africa, the limitations on one’s behavior that this entails are experienced and perceived intensely, but not mentioned – and certainly not to a stranger.

Pluralism is a condition for a community to function harmoniously, but this is usually not made a topic of discussion as such. My interviewees agreed in that regard, yet they had never thought about the problem of land from a pluralist perspective before! Examining the structure of ownership revealed that in the villages where I worked, everything belonged to someone. Not a single place was unowned. The land is expensive and among the best in France. Giving away even the smallest portion of land is unthinkable. And indeed there were only a few communal organizational structures in the swamp landscapes along the rivers running through the area.

Yet the physical areas devoted to specific common activities bear witness to longstanding common practices even on “private property,” e.g., playing fistball or gathering forest fruits. That was my first lesson. It was to be confirmed in the Amiénois, my own area of Picardy: a “common” function which is thus inherent and not made explicit can be superimposed on a right of ownership that is exclusive and absolute in principle. That function would then limit the exercise of this right, to the benefit of all members of a certain community insofar and as long as this function requires it. In the absence of players, for example, the fistball fields were transformed into community squares, flowerbeds, places for storing materials, and the like.²³ Functional logic triumphs over institutional logic!

These practices illustrate that notions about common space that usually remain in the dark emerge when one starts to look at common uses and the sharing of places. These notions about space are familiar in African societies, but have been forgotten here in Europe where geometrical notions about space dominate. Geometrical notions lead to the surveying and measuring of space, thus enabling people to assign an exchange value to the measure and finally to marketize what has been surveyed and measured (Le Roy 2011); social uses disappear from view. In a topocentric concept, by contrast, all spaces are identifiable by a place (location, point) that retain their own functional identities. These spaces can overlap if they fulfill different functions, and they can create borders and even territories if the functions are similar. The functions may be political, economic, religious, or otherwise. All of this characterizes how a territory is formed.

In other words, one can observe how commons with different functions overlap in a single area. At the same time, a physical space is generally assigned to concrete ownership rights according to the rules of positive law. Of course, such “layerings” of the law with various forms of control complicate the understanding of the people’s culture and their networks. After all, fundamentally speaking, as soon as we enter into the logic of the commons, some of our accustomed mechanisms for interpreting the functioning of a society and its formal regulatory authorities fail. At times, all they can do is represent information in a distorted way – or more likely, as caricatures.

I returned to Michel Alliot’s analyses (2003), in which he asserted that a community shares in three ways: areas of life, a particular type of behavior, and a decision area. This threefold sharing makes communities potentially totalitarian if the practices of sharing are not corrected by plural belongings and identities. By default, as a fact of life, we live in many worlds simultaneously, after all: family, school, political circles, professional life, sports, etc. In each of these worlds, we have a status of our own and an identity of our own. Even if societies transformed by market-oriented norms and state control no longer recognize traditional, communal, threefold sharing as a general rule, practices of sharing continues to flourish among communities comprised of people with multiple part-time identities. I call these groups “neo-communities.”

A supplement to Le Monde of April 4, 2014, on sustainable development, with the suggestive title “Betting on sharing,” took up the commons from the perspective of “alternative consumption.” Above all, it sketched the effects of carpooling and forms of living in cooperatives as promoted in France by the ALUR Act (Law on access to housing and urban redevelopment) following the German model. Journalist Marie-Béatrice Baudet commented that “customs are changing, especially among young people. That is certain, but not yet a revolution.” She quoted Remy Oughiry of the opinion research institute IPSOS: “The followers of collaborative consumption do not reject the consumer society at all. They simply want to regain control over it.” And Oughiry added, “The desire to own property remains very strong.”

Just as Monsieur Jourdain in Molière’s The Bourgeois Gentleman (Le Bourgeois Gentilhomme) discovered that he had been speaking prose all his life without knowing it, we have been practicing commoning through and in our common experiences that we no longer call common. After all, under the influence of neoliberalism, the concept of community has been transformed in French political debate into something negative, an antithesis to the idea of the good life and a negative buzzword in the political debate, with all the side effects that entails (Hatzfeld 2011).

As a result, we are confronted with a difficulty that I linked to an enigma in the land question at the beginning of this chapter. We participate in sharing behaviors that are often long-lasting, but are not identified as commoning. And if people try to name these behaviors, then tend to use terms like “common good,” which have a convenient semantic and political ambiguity but may in fact be undermined by the legal realities. In civil law, a good is a thing in private possession and which can be disposed of at will in any way desired, while a commons must remain intact as a collective resource and cannot be sold at will. For this reason, I will devote the final section of this essay to the legal status of the commons. In principle, this would require that new categories and legal concepts be introduced, but I will refrain from doing so due to a lack of space.

The Legality of the Commons

The commons, singular or plural²⁴, confront us with two problems: the fact that the law is silent, and yet a torrent of legal words purports to regulate what existing law cannot regulate effectively at all. This obvious contradiction requires a kind of anthropological demystification of the state of the law in order to clarify the difficulties of conventional law in managing commons.

The fact that lawyers abuse the law is explained by the very practices of their profession. Still, a majority of citizens continue to trust formal law to deal with problems that it can hardly grasp, or not at all. That is not acceptable. My anthropological experience as a researcher makes me concede that formal law, which we claim is universal in human thinking, is nothing but a construct that credibly corresponds to a particular temporal and local situation and has endured for several generations (for example, in Rome). In Europe, it is only since the seventeenth century that people have come to believe that law can take on a life of its own, largely independent of human agency and more and more specialized, finally brokering an alliance between the state and the market. Bound to political and economic power in this way, and in the course of the colonial adventures of the nineteenth century, this originally Western form of law has now spread to the entire world. Yet the rule of weapons and capital cannot make us forget that what is called “law,” and what goes hand in hand with the modern state, does not correspond to the experiences of three or four billion of our contemporaries around the world. For them, law instead triggers their mistrust and resistance.

In terms of the history of mankind, the law is only a folk law, a local interpretation of a process that is much more general. I call this process legality, or juricidité. If this legality is barely studied, it is because powerful political, economic and ideological interests prevent it. They are the same interests that do not permit the commons to be apprehended and named.

In addition, there is a problem in how to characterize law. If only the law itself is considered as autonomous (Le Roy 2009) – and if its interpreters derive normative categories from it and can treat them semantically as categories of law – then other experiences, whether they are Confucian, indigenous, Muslim, animist, or other traditions, are in principle heteronomous.²⁵ They may resemble law, but they are instead based on social traditions. Legality, by contrast, is identifiable in and through those practices that can be held legally responsible by an authority that is nominally empowered by the group itself to exercise appropriate sanctions. Legality in this sense is tautological because its grounding in social practice may or may not even exist!

This apparent lack of formal recognition of what is and is not law is deeply unsettling to European minds, especially for the Cartesian ones. For they tend to practice a kind of juridification (juridisme), to use Pierre Bourdieu’s (1986) term. Bourdieu considers this a bad habit of anthropologists and others – to formulate legal rules and thus orient rules along the particular conventions of the law in cases where there is actually only habitus, i.e., material for representing structural conditions of existence, preferences that are stable over time. For this reason, it is imperative that two things be respected: on the one hand, not to consider anything to be law which is actually only a standard enacted and recognized by the state (in other words, what is called positive law); and on the other hand, to treat everything else that emerges organically from communities as an authentic product of legality as relevant phenomena: the li²⁶ and fa²⁷ of Confucianism, the Hindu Dharma,²⁸ the Muslim Fiqh²⁹ and Sharia, customs and traditions, etc. Laws belong to the legal order and are its dominant expression, but other forms of social expression and regulation have always existed as well, and will continue to unfold – in particular, forms that regulate the relationships among people in managing their shared wealth. It is precisely these practices that we need to use if we are to enable people to “be commoners” and to take paths that are secured in a different way – not purely through the legality of laws and property rights. If we think that legality offers inappropriate answers, then we must rely on innovative forms of the legal order. And it is up to us to invent them.³⁰

From the Law to Control: About Masteries for Exploring a New Legal Order

Two innovations have already been put up for discussion. I now come back here to legal dominance and control over soil and resources. The idea has taken hold that one could exercise a right to land (ius in re) or could have a claim to be allotted a plot of land or to be a creditor. It has taken hold so firmly that it is difficult to admit that this, too, is only a specific product of our way of thinking. In this way of thinking, law becomes autonomous; it is considered something independent. It is also a condition for constituting the autonomy of the individual in society. The great adventures of democracy in England, America and France are all based on important declarations of rights. Other cultural traditions tend to try and conceive of human beings as parts of complex networks in their interactions with and their obligations toward others, as well as in their ability to mobilize these networks.

In order to do justice to both approaches, I have decided to use an intercultural concept, that of maîtrise,³¹ of dominance and control, which I first define as follows:

The concept of control mastery suggests a power and a force that grants particular responsibility to those who reserve the rights to a territory more or less exclusively because they are actually affected by what happens there. The concept permits sovereignty and property to be combined – the two concepts provide a “frame” for the debate about land use (…) – by emphasizing that rights and responsibilities can arise from a concrete relationship to space [Translator’s note: Here: “land”] and that this responsibility must be retained or ensured at its core. (Le Roy 1995:489)

By taking up anthropological and intercultural aspects, this concept of control, following Catherine and Olivier Barrière, enables the establishment of “a system for managing the assets of socioecological relationships at the heart of the internal and external relationships of communities.” (Barrière & Barrière 2002:315)

This concept – as well as further clarity about the forms in which resources and their communal management are appropriated and used – enables us to evaluate what does and does not stem from a commons logic in accordance with the conventions of each group, community, or society at a particular moment in its history. As a scientific approach, this concept does not require an a priori definition of what commons are “in their essence.” Instead, it focuses our view on what people share, and it moves strategies of communal management to the center of attention.

Conclusion

Making commons come alive again in everyday life and in the economic and legal systems seems like a revolution that can be interpreted through two lenses. Is it a rediscovery of precapitalist and prestate organizational principles or is it a break with the current political order? Perhaps even this framing does not do justice to the issue. In the epilogue to their book quoted above, Pierre Dardot and Christian Laval write: “Commons are the new political rationality that must replace the neoliberal rationality” (2014: 572). They regard revolution as the self-institution of society, an idea of Promethean dimensions of greatness.

I believe their most important hypothesis is summed up in the following quotation: “As a principle, commons define a norm of inappropriability. This indeed requires establishing all social relationships anew, with this idea as a starting point: Inappropriability does not mean… that it would be impossible to appropriate something, but that it is socially unacceptable to appropriate it. In other words, that appropriating something as one’s private property is not permitted because that thing is reserved for common use.” (Dardot and Laval 2014: 583) “There are no common goods; what matters is creating commons.”³²

Patterns of Commoning, edited by Silke Helfrich and David Bollier, is being serialized in the P2P Foundation blog. Visit the Patterns of Commoning and Commons Strategies Group websites for more resources.

References

Alliot, Michel. 2003 [1980]. “Modèles sociétaux : les communautés,” Le droit et le service public au miroir de l’anthropologie, Paris. Karthala. S. 73-78.

Appadurai, Arjun. 2013. Condition de l’homme global. Paris: Payot.

Barrière Catherine aund Olivier. 2002. Un droit à inventer. Foncier et environnement dans le delta intérieur du Niger. (Mali), Paris. IRD.

Bollier, David, 2014. La renaissance des communs, pour une société de coopération et de partage. Paris. Éditions Charles Léopold Mayer.

Bourdieu, Pierre. 1986. “Habitus, code et codification, Actes de la recherche en sciences sociales. Vol. 64, septembre, S. 40-44.

Dardot, Pierre aund Christian Laval. 2014. Commun, essai sur la révolution au XXI° siècle. Paris, Le Découverte.

Hatzfeld, Marc. 2011. Les lascars, une jeunesse en colère. Paris. Autrement, 2011.

Le Roy, Étienne. 1970. Système foncier et développement rural, essai d’anthropologie juridique sur la répartition des terres chez les Wolof ruraux de la zone arachidière nord, Sénégal. DiplomarbeitPH Dissertation. FDSE Paris. Ronéo.

———. 1995. “Le pastoralisme africain face aux problèmes fonciers,” Daget Philippe, Godron Michel, editors, Pastoralisme; Troupeaux, espaces, societies. Paris. Hatier AUPELF-UREF, S. 487-510.

———. (with A. Karsenty und A. Bertrand). 1996. La sécurisation foncière en Afrique, pour une gestion viable des ressources renouvelables. Paris. Karthala.

———. 1999. “Au delà de la relation public-privé, l’apparition de la notion de ‘communs’ dans les expériences actuelles de décentralisation administrative en Afrique francophone,” in Rösel Jacob und von Trotha, Trutz (Hg..), Dezentralisierung, Demokratisierung und die lokale Repräsentation des Staates. Köln, Rüdiger Köppe Verlag, S. 69-78.

———. 2009. “Autonomie du droit, hétéronomie de la juridicité.” In Sacco Rodolfo, editor, Le nuove ambizioni del sapere del giurista: anthropologica giuridica e traducttologia giuridica. Rome. Academia Nazionale dei Lincei, Atti dei convegni Lincei 253, S. 99-133.

———. 2011. La terre de l’autre, une anthropologie des régimes d’appropriation foncière. Paris, LGDJ, col. Droit et société, série anthropologie.

———. 2014 [2012]. “Sous les pavés du monologisme juridique, prolégomènes anthropologiques.” In Parance et al. 2014. S. 81-101.

Parance Béatrice. Saint Victor Jacques de, editors. 2014. Repenser les biens communs. Paris, CNRS éditions. Saïd Mahamouadou, 2009. Foncier et société aux Comores. Paris. Karthala.

Étienne Le Roy (France) is emeritus Professor of Legal Anthropology at the University Panthéon-Sorbonne, Paris 1 where he has directed the research Laboratory for Legal Anthropology of Paris from 1988 to 2007 and Curricula of African Studies, from 1993 to 2003. Since the mid-Sixties he has devoted his fieldwork to the study of land tenure systems and policies governing the appropriation of territories in Africa. Among many publications, Le jeu des lois, (Paris, LGDJ, 1999) offers his theoretical contribution to a legal “dynamic” anthropology and La terre de l’autre, une anthropologie des régimes d’appropriation foncière is the synthesis of forty years of research on land issues.

Photo by Rosmarie Voegtli

The post Patterns of Commoning: How I Have Been Conducting Research on the Commons for Thirty Years Without Knowing It appeared first on P2P Foundation.

“Our ambition is to bring properties into collective ownership and use”

This interview is an excerpt from the book Funding the Cooperative City: Community Finance and the Economy of Civic Spaces

In what context did you begin to work on Stad in de Maak?

This is an initiative that started from – and currently thrives in – the afterlife of the current financial crisis. A crisis that started out with toxic debts and real-estate speculations, emblematically bringing down Lehman Brothers on September 15, 2008. Amidst the unfolding of this crisis, the non-for profit housing developer Havensteder bought these two buildings where we are today with the idea of demolishing and redeveloping them. At that time, in 2009, this probably still looked like a viable plan but that did not last very long. When the mortgage crisis hit the market in the Netherlands a little bit later in 2010, for real-estate owners, the world in which they operated suddenly changed.

For instance, the value of real-estate started to drop. As a result, they had buildings that in their accounting books were still listed at the pre-crisis value, while their actual value in the real-estate market had diminished significantly, which brought them into financial trouble. At the same time, during the years leading up to this financial crisis, the group of non-for-profit developers, to which Havensteder belongs, would move away from their core mission of providing affordable housing towards other products with a higher return on investment. The government also encouraged them to experiment to yield more return, which could then be invested into housing. During the crisis however, these risky operations started turning against them, resulting in financial deficiencies of billions of Euros. For instance, one of these non-for-profit housing developers, Vestia in Rotterdam, embarked in derivatives for almost 10 billion Euros, something that went terribly wrong. All the non-for-profit housing developers had to come together to rescue the ones which were about to go bust, which made a huge dent in their financial reserves. To add insult to injury, they were subsequently forced to make contributions to the state budget, because the government also found itself in trouble due to the financial crisis. As a result, the investment budget of these developers withered away.

How did housing developers react to this situation?

Building renovated by Stad in de Maak. Photo (cc) Eutropian

At that moment Havensteder found itself in a situation in which it could not any longer sustain part of its real-estate portfolio, so it had to focus on keeping the healthy parts. This means that there was suddenly no budget anymore for troublesome locations such as this one. In 2010, Havensteder made a quick-scan of the two buildings, with the help of two collectives from Rotterdam, Superuse Studio and Observatorium, to see what to do with these locations. It must be understood that within Havensteder this is seen as a controversial idea: why would they start investing in derelict places in times of crisis? There are other priorities. But there were also people within the organisation, who challenged this idea and wanted to protect the quality of the street and maintain the value of the assets, as they owned the majority of the buildings on the street. The commissioned quick-scan revealed that if Havensteder wanted to keep the buildings up and running, they would have to accept a loss of 60,000 Euros in the coming 8-10 years. That is actually not so much, even though it is in a period of crisis.

Following this, things slowed down, and it looked as if the study to revive the buildings would end up in a drawer. One of the people involved in the study, the artist Erik Jutten, took the initiative to push things further. He came up with an unconventional proposal: if Havensteder is willing to take the loss of 60.000 euros anyway over the period to come, why not take that loss entirely in day one instead? In this way, it can be handed over as an investment budget to a group of people that would take care of the two buildings and any remaining risks. In a certain way, this would allow us to ‘common’ the buildings with this group of people for a period of ten years, after which the properties would go back to the owner, if it was still there.

What role did you take in this process?

Meeting in front of the Growery. Photo (cc) Eutropian

Ana Džokić, Piet Vollaard and myself joined Erik and put this proposition together. Our common motivation in the beginning was mainly curiosity: to see if we could do things differently. We spent a lot of time going through the details, like the economic model we had to get in place. The big challenge was of course finding a way to manage the buildings for ten years without us defaulting on it. We figured that, if Havensteder was ready to put in 60,000 Euros, around 75% of it would have gone into contractor costs, therefore we proposed to execute half of that work ourselves instead of outsourcing it. By doing so, we could free up a substantial part of the budget – because we could do things ourselves cheaper than a contractor, but it would also allow us to schedule and prioritise works differently, as we needed to urgently divert money to make some of the spaces inhabitable and create a cash-flow through renting them out. This is because we have to pay the bills, we have to pay the insurances, we have to pay the taxes… And we basically had no money ourselves, so to prioritise works to create an economically sustainable cash-flow was very urgent for us.

How did the housing developer like these ideas?

New workspaces and housing. Photo (c) Stad in de Maak

For Havensteder it was a deal with an untested partner: we had never worked with them before. But it was interesting for them because they hardly had any financial risks, no contingencies, and no management costs any longer. We would take all of this upon us for the next 10 years. After that, we just give back the property with no further economic loss than the 60.000 they had already booked. And while we negotiated over a period of many months, some level of trust began to develop amongst all the parties involved.

In October of 2013, we signed the agreement. A month later, work on site began: the buildings were in ruin and we had to quickly make them inhabitable. We had gone through a huge excel sheet for months and months, but we did not have much experience with doing these sorts of things, so we took on things quite intuitively. Meanwhile, we have grown a handful of buildings, and a few principles have emerged.

How do the buildings function economically?

The principles of Stad in de Maak

First of all, we try to make each building a self-sustaining node (in economic, social and environmental terms) within a network. This is done to foster a more robust network, in which difficulties (or even the ‘collapse’ of one node) do not pose a threat to the viability of the overall network of buildings. In economic terms, this means that each building should generate enough resources to cover its own costs. In social terms, each building should take care of its own governance and use. In environmental terms, it should aim to become resource flow neutral (energy, water, etc.). We aim to create a common finance pool for the maintenance and expansion of this platform. All the inhabitants and users of the buildings, through payment for the right of usage, generate a (modest) flow of finance that contributes to this common finance pool. From this, the activities to sustain the platform (a baseline income for those responsible) are being financed. Given enough nodes in the network (scale), a revolving investment fund to expand the network could be created.

From the very beginning on, we have maintained a minimalist (or no-nonsense) approach to investments. If affordability is at the core, invest what is minimally necessary. For instance, by putting functional, rather than aesthetic concerns at the core. By re-using, upcycling, or working with donated materials. By improvising if the use span of a building is limited, as long as safety is not compromised. And by being prepared to lower the comfort threshold in exchange for lower existential pressures (usage fee).
While working on the first buildings, we discovered that it would be important to replace monetary flows with non-monetary alternatives, where possible. As both the inhabitants and users of buildings and the platform itself face a lack of mainstream money, part of the financial pressure can be diverted by conducting transactions in other ‘currencies’: worktime or materials, for instance.

How do the activities taking place in the buildings impact the neighbourhood?

Stad in de Maak process diagram. Image (c) Stad in de Maak

We try to bring community activity, but also production back into the buildings, into the streets, and into the neighbourhood. Some things are being tested right now, like a workshop. There is a community brewery starting up, a micro-cinema, a launderette, even some production of detergent … In the coming months there we will have a number of trials to see how we can create a neighbourhood economy. It is crucial to keep space open for such uses and experiments. Each building therefore, has a commons (“meent” in Dutch), accessible for social or productive undertakings. We decided to keep financial pressures away from these common spaces, and cover the costs to keep them open through a contribution from all the users.

We said straight from the beginning that City in the Making – with its current temporary use of buildings – is a sort of training condition for what is yet to come. For us, the next step is to go beyond this temporary exploitation of vacant properties. Now we can do this because there has been an economic crisis but this is not sustainable in the future. Our ambition is to take the properties out of the market, to make them available for affordable housing and work, and to bring them into collective ownership and use.

Interview with Marc Neelen on 26 May 2016

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This work from 2007 was probably my last lecture on enclosure before turning back to the commons, in a sense. My work now builds on this to try and find new ways to understand the qualities of relationship that characterise what I now call the Heart of the Commons – those predominantly uncommodifying ways of being in the world that support the most ordinary qualities of helpful ethics in our lives. For an example of my more recent work, listen to the #CultureChange recording on the Bandcamp page.

The original lecture can be streamed or downloaded at Anthony’s Bandcamp page.

About Anthony Thomas McCann

Anthony McCann (garaiocht.com) is a specialist in culture change, ethics, and leadership. He works as an international keynote speaker and trainer, researcher, lecturer, coach, consultant, broadcaster, composer, poet, performer, and children’s songwriter and entertainer. Anthony lives in Bangor, Northern Ireland, with his family

Photo by barnyz

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The Charter of the Forest was sealed 800 years ago. Its defence of the property-less and of ‘the commons’, means the Right would prefer to ignore it – and progressives need to celebrate and renew it.

Dr. Guy Standing talks about the Charter of the Forest and its relevance 800 years on. Originally published in Open Democracy.

Guy Standing: Eight hundred years ago this month, after the death of a detested king and the defeat of a French invasion in the Battle of Lincoln, one of the foundation stones of the British constitution was laid down. It was the Charter of the Forest, sealed in St Paul’s on November 6, 1217, alongside a shortened Charter of Liberties from 2 years earlier (which became the Magna Carta).

The Charter of the Forest was the first environmental charter forced on any government. It was the first to assert the rights of the property-less, of the commoners, and of the commons. It also made a modest advance for feminism, as it coincided with recognition of the rights of widows to have access to means of subsistence and to refuse to be remarried.

The Charter has the distinction of having been on the statute books for longer than any other piece of legislation. It was repealed 754 years later, in 1971, by a Tory government.

In 2015, while spending lavishly on celebrating the Magna Carta anniversary, the government was asked in a written question in the House of Lords whether it would be celebrating the Charter this year. A Minister of Justice, Lord Faulks, airily dismissed the idea, stating that it was unimportant, without international significance.

Yet earlier this year the American Bar Association suggested the Charter of the Forest had been a foundation of the American Constitution and that it was more important now than ever before. They were right.

It is scarcely surprising that the political Right want to ignore the Charter. It is about the economic rights of the property-less, limiting private property rights and rolling back the enclosure of land, returning vast expanses to the commons. It was remarkably subversive. Sadly, whereas every school child is taught about the Magna Carta, few hear of the Charter.

Yet for hundreds of years the Charter led the Magna Carta. It had to be read out in every church in England four times a year. It inspired struggles against enclosure and the plunder of the commons by the monarchy, aristocracy and emerging capitalist class, famously influencing the Diggers and Levellers in the 17th century, and protests against enclosure in the 18th and 19th.

At the heart of the Charter, which is hard to understand unless words that have faded from use are interpreted, is the concept of the commons and the need to protect them and to compensate commoners for their loss. It is scarcely surprising that a government that is privatising and commercialising the remaining commons should wish to ignore it.

In 1066, William the Conqueror not only distributed parts of the commons to his bandits but also turned large tracts of them into ‘royal forests’ – ie, his own hunting grounds. By the time of the Domesday Book in 1086, there were 25 such forests. William’s successors expanded and turned them into revenue-raising zones to help pay for their wars. By 1217, there were 143 royal forests.

The Charter achieved a reversal, and forced the monarchy to recognise the right of free men and women to pursue their livelihoods in forests. The notion of forest was much broader than it is today, and included villages and areas with few trees, such as Dartmoor and Exmoor. The forest was where commoners lived and worked collaboratively.

The Charter has 17 articles, which assert the eternal right of free men and women to work on their own volition in ways that would yield all elements of subsistence on the commons, including such basics as the right to pick fruit, the right to gather wood for buildings and other purposes, the right to dig and use clay for utensils and housing, the right to pasture animals, the right to fish, the right to take peat for fuel, the right to water, and even the right to take honey.

The Charter should be regarded as one of the most radical in our history, since it asserted the right of commoners to obtain raw materials and the means of production, and gave specific meaning to the right to work.

It also set in train the development of local councils and judiciary, notably through the system of Verderers, which paved the way for magistrate courts. In modern parlance, it extended agency freedom, giving commoners voice in managing the commons, as well as system freedom, by opposing enclosure.

The Charter set the foundation for what is now called the communal stewardship of pooled assets and resources. Its ethos is the antithesis of the Government’s pretentious Natural Capital Committee, which is trying to capitalise the natural commons, to make them ‘profitable’. The commons exist for a way of living, not profits.

Over the centuries, the ethos of the Charter has been under constant attack. The Tudors were the most egregious, with Henry VIII confiscating ten million acres and disbursing them to favourites, the descendants of whom still possess hundreds of thousands of acres. The enclosure act of 1845 was another mass landgrab, mocking the pretensions of private property rights. Between 1760 and 1870, over 4,000 acts of Parliament, instituted by a landowning elite, confiscated seven million acres of commons. It is no exaggeration to say that the land ownership structure of Britain today is the result of organised theft.

Despite having endured centuries of abuse, the ethos of the Charter is still alive. But one feature of the neo-liberal economic paradigm that has shaped recent governments is a disregard for the commons, which the current British government has turned into a plunder under cover of the ‘austerity’ terminology. In the USA, the Trump administration has quietly prepared for the giveaway of millions of acres of federal commons.

For neo-liberals, the commons have no price, and therefore no value. So, they can be sold for windfall gains, or given away to their backers. By asserting the right to subsistence on the commons, the Charter recognised an alternative principle, something our ancestors defended with courage. We must do so now. We must resist the plunder of the commons and revive them.

A group is organising a series of events to do so. Everybody is free to join. Developing national and localised Charters of the Commons should go alongside the worthy Charter of Trees, Woods and People that will be issued on the anniversary day. Our modest efforts will not only emphasise environmental principles enshrined in the Charter, but also its subversive commitment to the right to subsistence that underpins the basic income movement of today.

The campaign began with an event laden with symbolism, a barge trip on the Thames from Windsor to Runnymede on September 17, where a public event highlighting the need for a Charter of the Commons was held under the awesome 2,500 year old Ankerwycke yew. The Runnymede meadow symbolises the commons. An earlier Tory government tried to privatise it, but an occupy movement organised by Britain’s first woman barrister succeeded in blocking the auction.

The barge trip’s symbolism does not stop there. Margaret Thatcher privatised our water in 1989. She gave nine corporations regional monopolies and gave them over 400,000 acres from the commons. Today, those corporations, mostly foreign owned, are among the country’s largest 50 landowners. They mock the principles of the Charter of the Forest. Thames Water, while paying its foreign shareholders £1.6 billion, has been convicted and had its hands slapped for pouring 1.4 billion tonnes of untreated sewage into the Thames, and is also doing too little to fix leaks. The Charter asserted that the commoners had the right to water. It should be a public good, and be renationalised as a matter of high priority.

As well as an event in Sherwood Forest emphasising fracking, there is an event in Durham, where one of the two originals of the Charter is preserved.

And on November 7, a meeting in the House of Commons will discuss a draft Charter of the Commons. In Lincoln, where the other original Charter is held, the Labour Party is organising an event on November 11.

Further information can be obtained from www.charteroftheforest800.org . If any organisation feels their agenda is relevant and that has not been contacted, let us know. We want all voices to be heard, all commoners to stand up and all of us to remember that reviving the commons is about recovering the future.

Image: Ampthill Forest, Bedfordshire. Flickr/UK Garden Photos, Some rights reserved.

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I recently spoke at a conference, “Property and Inequality in the 21st Century,” hosted by The Common Core of European Private Law, an annual gathering of legal scholars, mostly from Europe.  They had asked me how the commons might be a force for reducing inequality.  Below are my remarks, “The Commons as a Tool for Sharing the Wealth.”  The conference was held at the University of Göteborg, Sweden, on June 12-13, 2015.

Thank you for inviting me to speak today about the relationship between property law and inequality – a topic that receives far too little attention.  This should not be surprising.  Now that free-market ideology has become the default worldview and political consensus around the world, private property is seen as synonymous with freedom, economic growth and human progress.

Oh yes, there is this nasty side issue known as inequality.  Malcontents like the Occupy movement and renegade economists like Thomas Pikketty have brought this problem to the fore after years of neglect.  Their success has been quite an achievement because for years the very existence of inequality has been portrayed as an accident, an aberration, a mysterious and shadowy guest at the grand banquet of human progress.

I wish to argue that hunger, poverty, inadequate education and medical care, and assaults on human dignity and human rights, are not bugs in the system.  They are features. Indeed, market ideologues often argue that such deprivations are a necessary incentive to human enterprise and economic growth; poverty is supposedly needed to spur people to escape through the work ethic and entrepreneurialism.

Property rights lie at the heart of this dynamic because they are a vital tool for defining and patrolling the boundaries of private wealth, and for justifying the inevitably unequal outcomes.  So it’s important that we focus on the role of property rights in producing social inequality – without ignoring the many other forces, including social practice, culture and politics, that also play important roles.

I’d like to focus on the obsession in modern industrial societies to propertize everything, including life itself, and to use law as a tool to impose a social order of markets and private property as expansively as possible.  This cultural reflex is known as the enclosure of the commons.  The term describes how property owners assert sweeping rights – often with the active complicity of governments – as a way to appropriate collectively owned resources for private gain.

We can see this dynamic in the international land grab now underway, the incessant attempts to privatize groundwater and municipal water systems, the grotesque expansion of copyright and patent law to privatize scientific knowledge and cultural works, and the use of the Earth’s atmosphere as a free waste dump by polluters.  The mania for privatizing the world has reached such an extreme stage that even intangible wealth as public spaces, microorganisms, genetically created mammals, artificially created nanomatter and human consciousness itself are claimed as objects of private property rights.

Unfortunately, traditional property law is based on a woefully obsolete worldview and antiquated economic premises about human beings and social and ecological realities. It sees all of these expansions of property law as a form of wealth creation – when in fact it often amounts to wealth destruction (monetizing nature), redistribution from the have-nots to the haves, or a transformation of the intrinsic use-value of something into exchange-value (price).  It presumes that value is only created by individuals trucking and bartering in the marketplace, and the Invisible Hand does its magic.

Property law does not generally acknowledge the actual value generated by social collaborations, by complex natural systems and by inherited knowledge and culture.  It is blind to non-economic relationships such as gift economies, informal relationships, social communities and care work.  You could say that property law generally simply does not recognize the commons and its significant role in generating value.

What exactly do I mean by the commons?  Well, the term has been so poisoned by conservative ideologues and economists over the pasts two generations that the first idea that leaps to mind when you mention the word “commons” is the tragedy of the commons. Let me quickly dispense with this annoying distraction.

The tragedy parable, as I call it, was launched by biologist Garrett Hardin in his famous article in the journal Sciencein 1968.  Hardin said:  Imagine a pasture that can be used by anyone, and in which no individual farmer has a rational incentive to hold back his use of it.  Hardin declared without any empirical evidence that every individual farmer will of course put as many sheep on the pasture as possible.  This will inevitably result in the over-exploitation and destruction of the pasture and produce a tragedy of the commons.

The “tragedy parable” is regarded as such an economic truism that it has become a cultural cliché – an idea drummed into the heads of every undergraduate.  Champions of “free markets” have invoke the tragedy meme to celebrate private property rights and so-called free markets — and to fight government regulation and any collectivist alternatives.

The only problem is, Hardin was not describing a commons.  He was describing an open-access regime that has no rules, boundaries or indeed no community.  This is not a commons.  It is a free-for-all.  A commons is a social system for managing resources that has a bounded community, specific rules for accessing the resource, mechanisms to monitor that usage and punish free riders, and so on.  In fact, the situation Hardin was describing – in which free riders can appropriate or damage resources as they wish — is more accurately a description of unfettered markets.  You might say Hardin was describing the tragedy of the market.

The late Professor Elinor Ostrom of Indiana University powerfully rebutted the whole tragedy of the commons fable in her landmark 1990 book, Governing the Commons:  The Evolution of Institutions for Collective Action.  Her fieldwork and creative theorizing shows that it is entirely possible for communities tomanage natural resources as commons without over-exploiting them.

So the commons can actually work and work well.  How can that be possible?  Contrary to the Hardin parable and its many prisoner’s dilemma offshoots, people in real life tend to actually talk to each other.  They negotiate rules to protect community interests.  They build systems to identify and punish free riders.  They cultivate powerful cultural values and norms.  And so on.

The commons is in fact a flourishing system of self-provisioning around the world, mostly operating outside of the market and state.  Here’s an amazing fact:  An estimated two billion people depend on various natural resource commons for their everyday survival– farmland, fisheries, forests, irrigation water, wild game.  This role of the commons is largely ignored by economists, however, because the self-provisioning of the commons takes place outside of conventional markets and is therefore considered without value.  No money is changing hands; there is no boost of GDP.  How could anything worthwhile be taking place within these commons?

Professor Ostrom — an Indiana University political scientist who spend her career studying the dynamics of effective cooperation in managing resources – won the Nobel Prize in Economics for her work in 2009.  She was the first woman to win the award.  I don’t think this was incidental.  Unlike her (male) economist colleagues who treat property as an inventory of objects to be shuffled around, Ostrom opened up the discussion by exploring the rich potential of social relationships and collaboration in meeting needs.

But here’s where the story starts to get interesting.  In recent years, independent of the Ostrom-inspired academic scholars, a burgeoning international movement of commoners have arisen to build their own commons – and to challenge attempted enclosures of their shared wealth.  This eclectic, sprawling movement goes way beyond the small natural resource commons in the global South that Ostrom studied.  This movement consists of food activists trying to rebuild local agriculture through such means as permaculture, community-support agriculture, Slow Food and cooperatives.  It includes techies writing free and open source software programs that are now standard elements of most commercial software.  It includes universities and scientists and academic disciplines that are committed to sharing their research and data on open digital platforms, often with Creative Commons licenses.

The commons can be seen among seed-sharing farmers in India who wish to avoid GMO crops and practice a kind of open-source agriculture.  You see the commons in the explosion of open design and manufacturing – which is product design that is globally shared but locally manufactured and inexpensive, modular and accessible to anyone, in the style of open source software.  This movement has produced the Wikispeed car that gets 100 miles per gallon of fuel….the Farm Hack community that has produced dozens of pieces of affordable farm equipment…. and the scores of hackerspaces and Fablabs of the Maker movement.

The commons can be seen in new projects to build “shareable cities” in which urban residents play significant roles in managing parks and water systems, kindergartens and urban planning.  The commons is at work in cities that host participatory budgeting processes that let ordinary people deliberate about budgets.  It’s also at work in alternative currencies, such as the Bangla-Pesa in Kenya, which has made it possible for poor people in slum neighborhoods to exchange value with each other.

What unites these highly diverse communities?  They are all asserting a different universe of value.  They all share a basic commitment to production for use, not market exchange.  They are asserting the right of communities to participate in making the rules that govern themselves.  They want fairness and transparency in governance.  And as commoners, they are asserting a responsibility to act as long-term stewards of resources.  The commons also consists of a certain ethic – a commitment to protect everything that we inherit or create together, so that it can be passed on, undiminished, to future generations.

Far from a “tragedy, the commons should be understood as a vibrant social and political system for managing shared wealth.  It is a system of self-governance that emphasizes inclusion, fairness and sustainability.  It empowers ordinary people while avoiding crippling dependencies on the market or state.  We know how the market, by contrast – at least in its globally integrated, highly concentrated and socially disconnected and amoral forms – tends to transform customers into dependent vassals.

Now, historically, most commons have not needed nor sought formal protections of law.  Their self-organized customs and relative isolation from outside capital and markets, were enough to sustain them.  This has changed dramatically over the past thirty or forty years, however, as global commerce technology and conventional property law have expanded relentlessly, superimposing the logic and values of markets on nearly every corner of nature and social life.

Our common wealth is vulnerable because typically the state has no formal, clear property rights protecting them.  Indeed, the state has little interest in granting or clarifying collective property interests because it would prefer to collude with investors and corporations to privatize this collective wealth.  As usual, invoking the tragedy parable, the state presumes that only the private appropriation and monetization of common wealth can produce prosperity and human progress.  Expansive private property rights are crucial instruments in advancing this process.  And inequality, Pikketty and others have documented, is an inevitable result.

I wish to suggest, therefore, that – apart from some of the redistributionist strategies mentioned yesterday – the commons is a vital tool for assuring a more equitablepredistibution of wealth for all.  By that, the commons provides the most durable, structurally effective way to ensure that people’s basic needs are met – and this in turn will foster greater political equality.  Citizens must have legally guaranteed access to and use of the resources that they require for their survival, dignity and cultural identity.

If we truly wish to address inequality, then we must find ways to reclaim the commons and reinvent the Law of the Commons.  (Re)inventing the Law of the Commons may sound way ambitious, but consider this:  People in the thirteenth century arguably had stronger legal rights to subsistence and survival than people do today.  Thanks to Magna Carta and its companion document, the Charter of the Forest, people had guaranteed legal access to the forest to gather firewood, water for drinking and planting, acorns for their pigs, the right to hunt wild game and collect fruit, and much else.

Commoners had legal access to the means of production and subsistence – which is more than contemporary markets and many states are willing to guarantee today.  If you ain’t got the do re mi, as Woody Guthrie put it, you’re out of luck.

How would access to the commons ameliorate inequality?  For starters, it would help people extricate themselves from a dependency on predatory markets by helping them de-commodify their everyday existence.  We can see this among many contemporary commons:

·      Users of Linux don’t have to pay tribute to Microsoft, but can control their own software infrastructure and escape the proprietary tax of forced upgrades.

·      Locavoresdon’t have to suffer the costs and risks of GMO foods and industrialized, processed food.

·      People who live in housing owned by community land trusts can avoid the high rents and speculative prices of the open housing market.

·      Students and scholars who use open textbooks and open access scholarly journalscan avoid the exorbitant prices of commercial journals, expensive website paywalls and the surrender of copyright control.

·      Users of cooperative finance and alternative currenciescan mutualize their shared wealth and avoid the predatory practices of commercial banks and privately created fiat money.

·      City dwellers who rely upon municipally owned utilities or commons-based water systemscan escape the costly dependency on investor-owned utility monopolies, and develop more ecological alternatives.

The basic conclusion that I am making here is this:  The commons provides assured structural access to vital resources and services, outside of the market and state.  And in so doing, commons help assure greater equality in societies.  Commons help people reduce their costs, fortify their economic independence, and strengthen their political sovereignty.

To be sure, participating in a commons also entails certain responsibilities and initiative – both personal and social – to protect shared wealth.  But this, too, is a good thing – because it is an emancipation from the whole scheme of producer/consumer relationships that tend to alienate people from each other, promote consumerism and inflict nasty “market externalities” on to the environment.  As stewards of shared wealth, commoners tend to manage resources with a more holistic, long-term and collective perspective.  Commons offer a credible escape from the pathologies of the unsustainable growth economy.

But here is a key question:  What role should property law play in all of this?  If the commons is a richly generative system for meeting people’s needs, then surely property law ought to take account of this fact.  Unfortunately, as I mentioned earlier, traditional property law simply does not recognize the actual value of commons.

I am happy to report, however, that there is a massive amount of legal innovation already underway to protect the commons, using property rights and other forms of law.  Our ambitious challenge, I would argue, is to invent a new amalgamated field of inquiry that I call the Law of the Commons. 

This is a complicated challenge, mostly because the modern liberal polity and conventional law are philosophically hostile to the commons.  A system of law focused on individual rights, private property and economic growth, is not especially receptive to the paradigm of the commons.  Most commons-based legal innovations that I’ve encountered amount to hacks – i.e., they are  ingenious subterfuges and creative workarounds to the standard forms of state law.

This is exactly what Richard Stallman and the free software movement did in inventing the General Public License, of GPL, which provided a critical legal foundation for the evolution of free and open source software.  It’s what Larry Lessig and his colleagues did in inventing the Creative Commons licenses, another copyright-based license that turns copyright law inside out to make creative works automatically shareable rather than automatically private property.

Let me quickly review some of the more significant forms of commons-based law that commoners are putting forward these days.

In the global South, in order to subsistence commons, some indigenous peoples have been rallying around a legal instrument known as “biocultural protocols,” which the South African group Natural Justice developed.  The protocols are seen as a way to protect indigenous peoples from the market enclosures that would otherwise be sanctioned by international trade treaties, by declaring agro-ecological and cultural practices off-limits to markets and trade.

In India, ever since its Supreme Court formally recognized commons in a landmark 2012 ruling, Indians have been attempting to work out the legal and political implications of managing all sorts of commons such as forests, farmland and water.  There are also fascinating legal innovations such as the Potato Park in Peru, which gives indigenous peoples near Cusco the right to manage their “agroecological heritage landscape.”

Stakeholder trustsare a new frontier of legal innovation, especially in the US. These are state-chartered trusts to collect, manage and distribute revenues from natural resources such as oil, water, minerals and forests.  The great precedent for this is the Alaska Permanent Fund, which generates about US$1,000 a year for every resident of Alaska – a rare source of non-wage income for ordinary people.  Commons scholar Peter Barnes has expanded this idea to apply to many other common assets, in his book, Liberty and Dividends for All in an attempt to deal concretely, and with direct cash payments, to address in inequality.

New sorts of legal frameworks for digital commonsare a robust field of innovation as well.  There is now an attempt to move beyond copyright based licenses on open platforms, such as the GPL and Creative Commons licenses, to enable digital communities to retain for themselves the surplus value that they create.  Michel Bauwens of the P2P Foundation has proposed commons-based reciprocity licenses – of what he calls CopyFair – to ensure that digital communities can reap any monetization of their content from commercial users, while allowing non-commercial users to continue to use the work for free.  In a similar fashion, there are now efforts afoot to develop seed-sharing licenses so that farmers can protect their seeds from third parties who might appropriate and patent them.

The blockchain ledger,as pioneered by Bitcoin, may be one of the most revolutionary innovations in the Law of the Commons.  This technology is significant because it allows digital identity authentication and secure transfers of assets without third-party guarantors like banks or governments.  Although Bitcoin has used the blockchain ledger for standard libertarian, capitalist purposes, especially speculation, the technology can be used to facilitate social cooperation in radically new ways – in effect, moving law from the oral and written to digital media.

One important offshoot that many “computational lawyers” are working on is smart contracts, algorithm-based technologies that would new sorts of network-based contracts that could be negotiated on the fly, online, without the standard written contracts and lethargic court system.  This, too, is an important realm of new types of commons-based law.

Co-operative lawis another form of commons-based law that is reviving many little-used historical models while developing new types of governance.  For example, there are manymultistakeholder co-operatives in Italy and Quebec that go beyond worker and consumer co-op models, to empower third-parties to participate in such things as eldercare and social services.

The Sustainable Economies Law Center in Oakland, California, is exploring new forms of co-operative governance to empower members.  Old forms like community land trusts and “garden cities” – in which the city owns the water systems, land and other infrastructure, which it mutualizes for everyone’s benefit – are experiencing a revival.

There are many important experiments inurban commons underway, many of which require legal innovation.  One of the most significant is the Bologna Regulation in Bologna, Italy, which is remaking local government by inviting ordinary citizens and neighborhoods to self-organize their own projects – urban agriculture, care of public spaces, parent-run kindergartens, “social street” programs – which the city then helps.  The city now has more than 90 “pacts of cooperation” with self-nominated groups in three thematic areas – “living together, growing together and making together.”

Along the same lines, a San Francisco-based group called Shareable has developed a series of papers outlining “Shareable Cities” policies, which are aimed at helping city governments work with residents to develop “sharing projects” ranging from car-sharing to tool-sharing to neighborhood services.  A number of cities such as Linz, Austria, are pioneering open digital platforms for urban renewal by making all sorts of information available online for free.

I have not yet mentioned the many new legal initiatives attempting to strengthen local self-determination, mostly through community ordinances and so-called community charters.  There are also new organizational forms such as “omni-commons,” which provide administrative, fiscal and legal assistance to help incubate small enterprises with a commons orientation.

At an even larger level, there are many legal initiatives underway attempting to re-imagine governance according to commons principles.  Some of these look to the public trust doctrine in environmental law to uphold the interests of commoners, as in a series of lawsuits seeking to force governments to deal with climate change.  Others, such as a project by some Italian jurists, are trying to establish a human right of people to access and use common assets, protecting them from market enclosure.  Just a few months ago, French legal scholars held a conference on European juridicial strategies for the commons.

We are seeing a remarkable burst of creativity to find new structures of law – in contract law, trusts, co-operative law, municipal government, copyright and patents, organizational charters, and more – to protect the social practices of commoning and the values it stands for.

What is this all about, ultimately?  It’s about honoring the sovereignty of people to devise their own forms of governance to meet their needs and local context.  It’s about the importance of bottom-up initiatives and participation, and of transparency and accountability.  It’s about meeting people’s needs without relying on the dysfunctional formalities of bureaucracy, the market/state duopoly of power, or the social inequities associated with markets.

Given the explosion of legal creativity in creating, maintaining and protecting commons, old and new, I have high hopes that this new field of legal inquiry, the Law of the Commons, will help move us beyond the limits of conventional law, governance and bureaucracy.  At bottom, the Law of the Commons is about nurturing the social norms, policy structuresandinstitutional practices that can help human beings flourish.  There is a great deal of research, creative theorizing and activist experimentation that must proceed, but I believe that commoning, as enabled by a reinvented Law of the Commons, will help address some of the most urgent ecological, social and political problems of our time.

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In an interview recently, Aftab Omer observed that I seem hesitant to describe Sacred Economics as a post-capitalist economic vision. I replied that I am not talking about the end of capitalism, bur rather a transformation in the nature of capital, so that capitalism no longer bears the social dynamics to which we are accustomed.

“If we define capitalism as the private ownership of the means of production, and post-capitalism as ending that private ownership, we are still reifying “ownership” or property as an absolute category. But in fact, ownership like money is nothing but a social agreement, a system by which society allocates certain exclusive rights to decide how capital is used.”

These might seem like technical reforms that leave the fact of ownership of the means of production unchanged, but actually they change what “ownership” means. When we understand that property is a fluid concept, a broad label we give to a complicated set of social agreements, then it becomes hard to say what is capitalism and what is not. 

At bottom, the blurriness of the concept of ownership implicates the blurriness of the concept of the owner. Who, or what, owns property? The 17th-century thinkers that developed the philosophical foundations of property law (and law in general), Hobbes, Locke, Pufendorf, Hutcheson, etc., despite their differences, all pretty much took for granted a world of separate individuals giving consent, entering into contracts, and making free-willed moral choices. It is from this assumption that libertarian ideas about the sanctity of property and the sanctity of contract are born, along with the irreconcilable difficulties that arise in integrating these with the good of the body politic. Private property (its presence or absence as an absolute category) goes hand in hand with the separate self. A system grounded in the understanding of our inter-existence, in the fluid and fractal co-construction of self and society, no longer takes ownership as a well-defined category. The terms capitalist, socialist, post-capitalist, and so forth, because they draw on ownership as an elemental concept, are therefore a little bit obsolete.  

Originally posted in charleseisenstein.net

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