La olvidada historia legal de los (bienes) comunes
By David Bollier
One of the most insidious things about enclosures is how they eradicate the culture of the commons and our memory of it. The old ways of doing things; the social practices that once bound a people together; the cultural traditions that anchored people to a landscape; the ethical norms that provided a stable identity — all are swept aside to make room for a totalizing market culture. Collective habits give way to individualism. Cherished traditions fall victim to whatever works now or saves money today. The colorful personalities and idiosyncratic lore of a community start to fade away.
Karl Marx memorably described the commoditizing logic of capitalism, saying, “All that is solid melts into air.” Enclosures eclipse the history and memory of the commons, rendering them invisible. The impersonal, individualistic, transaction-based ethic of the market economy becomes the new normal.
If we are to understand the commons, then, it is useful to learn more about its rich, neglected history. Capitalist culture likes to think that all of history leads inexorably to greater progress, if not perfection, as society climbs towards the present moment, the best of all possible worlds. The complex, overlooked history of the commons tells a different story. It is an account of how human beings have learned new and ingenious ways to cooperate. It is a story of building new types of social institutions for shared purposes despite systems of power (feudalism, authoritarianism, capitalism) with very different priorities.
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Commons tend to be nested within other systems of power and institutional relationships, and therefore are not wholly independent. There is often a deep “creative tension” between the logic of the commons and the imperatives of its host environment (whether feudal lords, technology markets or national laws). This is why many commons thrive in the interstices of power, in “protected zones” tolerated or overlooked by Power, or accidentally remote from it.
The stark reality is that commons tend not to be dominant institutional forms in their own right. This subordinate role can be seen in the flourishing of medieval land commons under feudalism; in mutual associations under socialism and communism; and, in our time, in gift economies such as academia and civic associations under capitalism. Such commons were (and still are) nested within larger systems of power and rarely functioned as sovereign forces.
Still, human reciprocity and cooperation go back millennia. With the dawn of civilization, legal traditions were invented that sought to protect the shared interests of the many and of future generations. The human impulse to cooperate is rarely expressed in purely altruistic forms; it tends to work in creative tension with individualism and power. Even though we like to contrast “individualism” and “collectivism” as opposites, in the commons they tend to blur and intermingle in complicated ways. The two are not mutually exclusive, but rather dynamic yin-and-yang complements.
Historical, small-scale commons belie the claims made by contemporary economists that humans are essentially materialist individuals of unlimited appetites, and that these traits are universal. Quite the opposite. The real aberration in human history is the idea of Homo economicus and our globally integrated market society. Never before in history have markets organized so many major and granular elements of human society. Never before has the world seen so many societies organized around the principles of market competition and capital accumulation, which systematically produce extremes of selfish individualism, inequalities of wealth and crippling assaults on natural ecosystems.
This is worrisome on its own terms, but also because of the instability and fragility of large-scale, market-based systems. Six years after the 2008 financial crisis, the greater powers are still scrambling to re-establish trust, credibility and social stability to many global and national markets. Whether through crisis or choice, it is virtually inevitable that the human race (or at least the industrialized West) will need to rediscover and reinvent institutions of human cooperation.
What Evolutionary Sciences Tell Us About Cooperation
Given their premises about individual self-interest, it is not surprising that economists consider the world a nasty, competitive place that will degenerate into anarchy unless the State steps in to restrain bad actors and mete out punishment. A formidable set of political philosophers — John Locke, David Hume, Thomas Hobbes — set forth this worldview in the eighteenth century; in the words of Hobbes, life was “solitary, poor, nasty, brutish and short.” Upon its principles of universal selfishness and individual “rationality” entire systems of law and public policy have been built.
But what if this is mostly a “just so” story — a partially accurate fable that does not really describe the full, empirical realities of human nature? What if it could be shown that human cooperation, reciprocity and non-rational behavior are just as significant a force as “competitive rationality” and “utility maximization”?
This is the startling conclusion of much contemporary research in the evolutionary sciences, especially brain neurology, genetics, developmental and evolutionary psychology, biology, organizational sociology and comparative anthropology. These sciences are confirming that social reciprocity and trust are deeply engrained principles of our humanity. They may even be biologically encoded.
One of the first scientists to explore this possibility was the Russian zoologist Petr Kropotkin in his 1902 book, Mutual Aid: A Factor in Evolution. Kropotkin surveyed the animal kingdom and concluded that it “was an evolutionary emphasis on cooperation instead of competition in the Darwinian sense that made for the success of species, including the human.” Animals live in association with each other and mutually aid each other as a way to improve their group fitness.
Mainstream science in the twentieth century took a very different direction, however. It has generally embraced models of rational self-interest to explain how organisms behave and evolve. In the evolutionary sciences, natural selection has traditionally been seen as something that happens to individuals, not to groups, because individuals have been considered a privileged unit in the biological hierarchy of nature. Thus evolutionary adaptations have been thought to happen to individuals, not to collectivities or entire species. Scientists have generally dismissed the idea that biological traits that are “good for the group” can be transmitted and evolve at the group level.
Over the past decade, however, there has been an explosion of new research by respected scientists such as Martin Nowak, E.O. Wilson and David Sloan Wilson, who argue that group-level selection is a significant force in human and animal evolution. Empirical evidence suggests that evolutionary adaptations can and do occur at all levels of the biological hierarchy, including groups. The basic idea is that while cooperation and altruism can be “locally disadvantageous” for individuals, they can be highly adaptive traits for groups. As E.O. Wilson and David Sloan Wilson put it, “Selfishness beats altruism within groups. Altruistic groups beat selfish groups. Everything else is commentary.” In short, reciprocal social exchange lies at the heart of human identity, community and culture. It is a vital brain function that helps the human species survive and evolve.
Controversy still rages, of course, but it would appear that human beings are neurologically hardwired to be empathic and cooperative, and to connect emotionally with their fellow human beings. As author and essayist Rebecca Solnit showed in her book A Paradise Built in Hell: The Extraordinary Communities That Arise in Disaster, members of communities beset by catastrophes such as the San Francisco earthquake of 1907, the German Blitz of London during World War II and the 9/11 terrorist attacks generally show incredible self-sacrifice, joy, resolve and aching love toward each other. The communities such disasters create are truly “paradises built in hell.” Her book is an answer to the economists and political leaders who believe that the world is made up of isolated, selfish individuals who must be governed through authoritarianism and fear.
“Perhaps the most remarkable aspect of evolution,” writes Harvard theoretical biologist Martin A. Nowak, “is its ability to generate cooperation in a competitive world,” adding, “Thus, we might add ‘natural cooperation’ as a third fundamental principle of evolution beside mutation and natural selection.” It bears noting that the popularity of “individual selection theory” during the latter half of the twentieth century coincided uncannily with the heyday of market culture and its ethic of competitive individualism. A case of culture affecting scientific observation?
What is notable about the more recent findings of evolutionary science is the recognition that individual organisms function within a complex system of interdependence. This means that individual self-interest and group survival tend to converge, making the supposed dualism of “self-interest” and “altruism” somewhat artificial. Anyone who participates in useful online communities will recognize this feeling; individual and group interests become more or less aligned and self-reinforcing, if occasionally disrupted by disagreements and external jolts.
As a social scientist, Professor Elinor Ostrom studied hundreds of cases around the world in which communities were able to self-organize their own systems of commons-based governance and develop a cooperative ethic. Her research unearthed an ethnographic reality: that commons can persuade individuals to limit their narrow self-interests and support a larger collective agenda. The gratifying news is that evolutionary scientists are confirming these claims at the more elemental level of genetics, biology, neurology and evolutionary psychology.
The Forgotten Legal History of the Commons
The subterranean life of the commons in evolutionary science — which is only now being recognized — parallels its legal history. The law of the commons has also been largely ignored, and yet it actually goes back to ancient Egypt and the Roman Empire, and is stitched like a golden thread throughout medieval history in Europe. Landmarks of commons-based law — such as Roman legal categories for property and the Magna Carta and its companion Charter of the Forest — are deeply embedded in Western law.
Consider King John. In thirteenth-century England, a series of monarchs began to claim larger and larger plots of forest lands for their personal recreation and use, at the expense of barons and commoners. By threatening the basic livelihoods of commoners who depended on the forest for their food, firewood and building materials, these royal encroachments on the commons provoked prolonged and bitter civil strife. Livestock could not roam the forests; pigs could not eat acorns; commoners could not gather timber to fix their homes; boats could not navigate rivers upon which dams or private causeways had been built.
After years of brutal armed conflict, King John in 1215 formally consented to a series of legal limitations on his absolute power and stipulated that other members of society, including commoners, were entitled to due process, human rights and subsistence, among other rights. This was the great Magna Carta, one of the foundations of Western civilization. The rights of habeas corpus, trial by jury, the prohibition of torture and the rule of law all derive from the Magna Carta. All these legal principles have since found expression in modern constitutions around the world as the fundamental rights of citizens. They are also affirmed by a number of leading human rights conventions.
A near-forgotten document, the Charter of the Forest, also bears mention here. Signed two years after the Magna Carta and later incorporated into it, this charter recognized the traditional rights of commoners to use royal lands and forests. Thus commoners formally enjoyed the rights of pannage (pasture for their pigs), estover (collecting firewood), agistment (grazing) and turbary (cutting of turf for fuel) on royal properties. As a practical matter, the Charter of the Forest gave commoners basic rights to subsistence. It also protected them against state terror as waged by the king’s sheriffs in their defense of the king’s enclosures.
As this brief history suggests, the law of the commons points to a different typeof law — one that originates from the lived experience of commoners; one that tends to be informal, situational and evolving rather than fixed and written; and one that encourages social mutualism and equality over commercial goals or state authority. Peter Linebaugh is instructive on this point: “Commoning is embedded in a labor process; it inheres in a particular praxis of field, upland, forest, marsh, coast. Common rights are entered into by labor. They belong to experience, not schooling.… Commoning, being independent of the state, is independent also of the temporality of the law and state. It’s much older. But this doesn’t mean that it’s dead, or premodern, or backward.”
Commoning remains vitally important as a bulwark against the abuses of formal law because it represents one of the few ways that formal law can be made accountable to the people. Formal law can be more easily corrupted and betrayed because it has identifiable access points — legislatures, courts, heads of state — where bad actors can traduce it, whereas vernacular law is deeply rooted in the daily lives of people and their culture and is therefore harder to manipulate or corrupt.
As welcome as the Magna Carta was to commoners, its guarantees could only be assured through constant vigilance. Commoners were skeptical, and understood the necessity of fighting back. This is one reason why kings repeatedly republished the Magna Carta over the years, ritualistically affirming that the basic human rights of commoners were indeed being upheld. Of course, a piece of paper has proved to be of only limited value in stopping the abuses of state power. As we’ve seen in our own times, the US government has, in the name of fighting terrorism, ignored with impunity the rights of habeas corpus, due process, the prohibitions on torture and other principles of the Magna Carta.
So, too, in the sixteenth to nineteenth centuries, the Magna Carta did little to impede enormous new enclosures of land. In 1536, King Henry III eliminated Catholic monasteries, unleashing a fierce round of enclosures by lords and nobles — a “massive act of state-sponsored privatization,” as Linebaugh calls it. Authorized by four thousand acts of Parliament over several centuries, a rising class of gentry seized roughly 15 percent of all English common lands for their own private use. These enclosures destroyed many commoners’ social connection to the soil and trampled their social identities and traditions, paving the way for their proletarianization.
As enclosures intensified, women who tried to maintain their old ways of commoning — who asserted their rights to common, if only because they had no other way to subsist — often found themselves accused of being witches. Silvia Federici explores these themes in her feminist history of the medieval transition to capitalism, Caliban and the Witch. She writes: “The social function of the commons was especially important for women, who, having less title to land and less social power, were more dependent on them for their subsistence, autonomy and sociality.”
The Eclipse of the Law of the Commons
“Enclosure meant a shift away from lives guided by customs preserved in local memory toward those guided by national law preserved in writing,” observed commons scholar Lewis Hyde. “It meant a shift in the value of change itself, once suspect and associated with decay, now praised and linked to growth. It meant a change in the measurement and perception of time” (as factories began to rationalize and measure time and direct people’s activities based on it).
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As people’s access and rights to land were separated from social custom, a new type of person arose — the individual, someone who was not visibly a member of a collective and whose worldview became oriented around personal wages, technological progress, social progress and material gain. The new market order, writes Karl Polanyi, created people who were “migratory nomadic, lacking in self-respect and discipline — crude, callous beings.” All of this followed when the “bundle” that constituted the commons — resources, commoners and social practices — was disassembled and commoditized to serve the needs of the new industrial market order.
Of course, enclosure had some positive effects, such as doing away with the master/commoner relationship, transforming vassals into freeholders. But this new “freedom” cut both ways: while it liberated people to pursue new identities and social freedoms, it also destroyed the social cohesion of the commons, a person’s assured subsistence, ecological sustainability and the stabilizing linkages between identity and resource use.
The history of socialism and political liberalism can be seen as attempts to ameliorate some of the worst structural problems created by the dissolution of the commons. European socialism in the nineteenth and twentieth centuries introduced new sorts of social mutualism and bureaucratic systems to try to meet the needs of former commoners in the new circumstances of industrialized society. Bottom-up innovations such as consumer cooperatives, social security systems and municipal water supplies were invented. The idea was to meet the basic needs of commoners in a very different historical context, that of the Market/State.
These innovations were certainly an improvement over the laissez-faire order, and indeed, many of the early socialistic or utopian projects more or less functioned as commons, perhaps because they still had a lively memory of traditional commons. But as workers’ collectives adapted to the requirements of state law, bureaucracy, corporations and market forces, the practice ofcommoning — and the vitality of commons — slowly disappeared.
State regulation has been another means to compensate for the problems introduced by “free markets,” namely the displacement of costs and risks onto the environment, communities and the human body. The regulation of environmental practices and the safety of food, drugs, medical devices, chemicals, autos and consumer products can be seen as attempts to use the cumbersome apparatus of formal law, science and bureaucracy to enforce the social and ethical norms of commoners. Given the scale of commercial dealings and the power of multinational corporations, state regulation is absolutely necessary; conventional commons are too small, unorganized and lacking in resources to assure socially responsible outcomes.
On the other hand, regulation has not worked so well. The centralization and formalization of law made it easier for regulated industries to capture and corrupt the process — no surprise given the power of the Market/State and the depth of its overlapping interests. It remains something of an open question how governance might be restructured to rein in the chronic social and environmental abuses generated by markets.
Just as state regulation has a very uneven record, so the state’s role as a trustee of common assets is uneven and often dismal. We easily forget that many resources managed by the state belong to the people. The state does not “own” the air, water, public lands, coastal areas or wildlife, and cannot do what it pleases with them. It is authorized to act only as an administrative and fiduciary agent of the people. Under the public trust doctrine it cannot give away or allow the destruction of these resources. To emphasize the state’s stewardship obligations, I like to call large-scale, state-mediated commonsstate trustee commons.
Unfortunately, the state often neglects its responsibilities to “intervene” in markets because it fears that it might inhibit economic growth and violate widely believed fictions about “free market” principles. Safety regulations and public-service requirements, for example, tend to stabilize society, prevent serious harm and assure a rough social equity. But in our neoliberal times, even these goals are seen by most governments as an unacceptable burden on capital and corporations, and as a drag on economic growth.
To be sure, many grassroots movements have developed a modest independent sector of cooperatives and mutual association. Unfortunately, these alternative provisioning systems have generally failed to reach a meaningful scale. Similarly, while many important regulatory protections have been won over the years, they have failed to keep pace with the relentless stream of new problems generated by markets. In addition, regulation is generally dominated by legal proceduralism and scientific expertise, so that the views of local residents or individual consumers do not carry as much weight in decision-making as those of lawyers, credentialed technical experts and corporate officials. Commoners often find themselves delegitimized as participants in the governance process, or simply unable to afford the costs of participating.
In practice, the very institutionalization of the process, ostensibly intended to assure fair, equal and universal participation, also tends to disenfranchise commoners. This can be seen when social democratic states have taken over the administration of projects (social security) and when state communism has marginalized collective initiatives (co-ops). It is no surprise that the success of commoners in developing adequate protections for themselves and their resources through the legal systems of the nation-state has been highly irregular and limited.
Some of the most astute commentators on these problems are autonomous Marxists such as Massimo De Angelis, editor of The Commoner website; George Caffentzis, founder of the Midnight Notes Collective; Silvia Federici, an historian who concentrates on the feminist implications of the commons; Peter Linebaugh, author of The Magna Carta Manifesto and other histories of English commons; and Michael Hardt and Antonio Negri, the political theorists and authors of Multitude, Empire and Commonwealth. Each in different ways has noted that the core problem of unfettered capitalist markets is their tendency to erode the authentic social connections among people (cooperation, custom, tradition) and to liquidate the organic coherence of society and individual commons. Capital breaks commons into their constituent parts — labor, land, capital, money — and treats them as commodities whose value is identical with their price.
This has caused a persistent moral and political crisis because market capitalism cannot answer the questions, What can bind people together beyond the minimal social and civic ties needed to participate in market exchanges? Can a market-based society survive without the commons?
2016 May 18
The following is an excerpt from Think Like A Commoner: A Short Introduction to the Life of the Commons. Copyright © 2014 by David Bollier. Reprinted with permission of New Society Publishers.