One of the most devastating and recurring problems that virtually every commons faces is market enclosure – the privatization and marketization of shared resources by businesses, investors and speculators, often in collusion with government. What’s really remarkable is that legislatures and courts so often declare that enclosures are legal because they supposedly contribute to economic growth, progress and freedom, etc.
All of this got me to thinking: What would it look like if commoners could invent their own types of law, consistent with state law, to reliably protect their commons? What if there were a more rigorous Law for the Commons?
There are in fact many examples from history. The most notable ones may be the centuries-old public trust doctrine for water and other natural resources, and the Charter of the Forest, the forgotten part of Magna Carta that guarantees commoners’ rights.
In our time, the General Public License for software and the Creative Commons licenses for content are masterstrokes of legal ingenuity that protect shared wealth. Commoners can be confident that no one can legally appropriate their pooled resources, whether they are code, writing, images or music.
As I looked into this topic further, I discovered that there is in fact a wealth of legal innovation now underway in many sectors of the commons world. There are clever legal hacks to protect indigenous peoples’ agroecological knowledge and traditions. There are new variations on co-operative law and new legal initiatives to protect local communities’ self-determination. There are stakeholder trusts and new organizational forms for commoning.
With support from the Heinrich Boell Foundation, I researched and wrote a lengthy four-part strategy memorandum outlining more than sixty examples of legal innovation for the commons. The memo also includes a rationale for launching a new field of inquiry and activism, Law for the Commons. Here is a short list of the contents of the memo:
Part I: Introduction
Part II: Legal Innovations in Beating the Bounds: Nine Promising Fields of Action
- Indigenous Commons
- Subsistence Commons in the Global South
- Digital Commons
- Stakeholder Trusts
- Co-operative Law
- Urban Commons
- New Organizational Forms
- Re-imagining State Policy to Empower Commons
Part III: The Strategic Value of Developing Law for the Commons
Part IV: Next Steps
A beautiful wiki hosted by the Commons Transition platform showcases the many forms of commons-based law mentioned in my memo. (Thanks, Michel Bauwens and Stacco Troncoso!) I am hoping that readers will have other examples to add to the ones that I’ve compiled, and new source material and weblinks for existing examples.
Click here to download the Reinventing Law for the Commons Strategy Demo