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The commons law project: A vision of green governance

For the past two years or more, I’ve been working on a major research and writing project to try to recover from the mists of history the bits and pieces of what might be called “commons law” (not to be confused with common law).  Commons law consists of those social practices, cultural traditions and specific bodies of formal law that recognize the rights of commoners to manage their own resources.  Most of these governance traditions deal with natural resources such as farmland, forests, fisheries, water and wild game.  Commons law has existed in many forms, and in many cultures, over millennia.

Ever since the rise of the nation-state and especially industrialized markets, however, commons law has been marginalized if not eclipsed by contemporary forms of market-based law.  Over the past 200 years, individual property rights and market exchange have been elevated over most everything else, and this has only eroded the rights of commoners, it has contributed to the destruction of the Earth and its fragile natural systems.

To address this problem, the noted international law and human rights scholar, Professor Burns Weston of the University of Iowa School of Law, and I started the Commons Law Project in 2010.  We wanted to re-imagine the scope of human rights law, validate neglected forms of commons-based ecological governance and reframe the very notion of “the economy” to incorporate non-market sharing and collaboration.

It has been, I concede, an ambitious enterprise.  But we had concluded that incremental efforts to expand human rights and environmental protection within the framework of the State/Market duopoly were simply not going to achieve much.  Indeed, the existing system of regulation and international treaties has been a horrendous failure over the past forty years.  Neoliberal economics has corrupted and compromised law and regulation, slashing away at responsible stewardship of our shared inheritance while hastening a steady decline of the world’s ecosystems – forests, wetlands, fisheries, coral reefs, the atmosphere, the polar zones, and more.

So Burns and I wanted to critique why the existing structures of law and economics have failed, and to suggest some practical new solutions based in law.  We concluded that new forms of ecological governance that respect human rights, draw upon commons models and reframe our understanding of economic value, hold great promise.  I am happy to report that Burns and I recently completed a book manuscript, Green Governance:  Ecological Survival, Human Rights and the Commons, which has been accepted for publication by Cambridge University Press for 2013. 

In the meantime, a preview of our thinking can be found in a prior draft essay that we wrote in 2011, “Regenerating the Human Right to a Clean and Healthy Environment in the Commons Renaissance.”  We have posted this 173-page essay (with copious footnotes) on our newly launched website for our Commons Law Project.  (Here are pdfs of Part I and Part II of the essay.)

A shorter version can be found in an essay just published in the Summer issue of Kosmos Journal, which continues to feature some noteworthy pieces on the commons, including James Quilligan’s second essay on the theme, “Toward a Common Theory of Value.”

Below is an excerpt of our introduction to “green governance” -- and here is a pdf of the entire six-page piece.

It is our premise that human societies will not succeed in overcoming our myriad eco-crises through better ‘green’ technology or economic reforms alone; we must pioneer new types of governance that allow and encourage people to move from anthropocentrism to biocentrism, and to develop qualitatively different types of relationships with nature itself and, indeed, with each other. An economics and supporting civic polity that valorizes growth and material development as the precondition for virtually everything else is ultimately a dead end—literally.  

Achieving a clean, healthy and ecologically balanced environment requires that we cultivate a practical governance paradigm based on, first, a logic of respect for nature, sufficiency, interdependence, shared responsibility and fairness among all human beings; and, second, an ethic of integrated global and local citizenship that insists upon transparency and accountability in all activities affecting the integrity of the environment.

We believe that commons- and rights-based ecological governance—green governance—can fulfill this logic and ethic.  Properly done, it can move us beyond the neoliberal State and Market alliance—what we call the ‘State/Market’—which is chiefly responsible for the current, failed paradigm of ecological governance.

The basic problem is that the price system, seen as the ultimate governance mechanism of our polity, falls short in its ability to represent notions of value that are subtle, qualitative, long-term and complicated. These are, however, precisely the attributes of natural systems. The price system has trouble taking account of qualitatively different types of value on their own terms, most notably the ‘carrying capacity’ of natural systems and their inherent usage limits. Exchange value is the primary if not the exclusive concern. This, in fact, is the grand narrative of conventional economics. Gross Domestic Product represents the sum total of all market activity, whether that activity is truly beneficial to society or not. Conversely, anything that does not have a price and exists ‘outside’ the market is regarded (for the purposes of policy-making) as having subordinate or no value.

What is more, it is an open secret that various industry lobbies have captured if not corrupted the legislative process in countries around the world; and that the regulatory apparatus, for all its necessary functions, is essentially incapable of fulfilling its statutory mandates, let alone pioneering new standards of environmental stewardship. Further, regulation has become ever more insulated from citizen influence and accountability as scientific expertise and technical proceduralism have come to be more and more the exclusive determinants of who may credibly participate in the process. Given the parameters of the administrative State and the neoliberal policy consensus, truly we have reached the limits of leadership and innovation within existing institutions and policy structures.

Still, it will not be an easy task to make the transition from State/Market ecological governance to commons- and rights-based ecological governance. Green governance is, indeed, a daunting proposition. It entails serious reconsideration of some of the most basic premises of our economic, political, and legal orders, and of our cultural orders as well. It requires that we enlarge our understanding of ‘value’ in economic thought to account for nature and social well-being; that we expand our sense of human rights and how they can serve strategic as well as moral purposes; that we liberate ourselves from the limitations of State-centric models of legal process; and that we honor the power of non-market participation, local context and social diversity in structuring economic activity and addressing environmental problems. 

Of course, there is also the deeper issue of whether contemporary civilization can be persuaded to disrupt the status quo to save our ‘lonely planet.’ Much will depend on our ability to articulate and foster a coherent new paradigm of ecological stewardship. Fortunately, there are some very robust, encouraging developments now beginning to flourish on the periphery of the mainstream political economy. These include insurgent schools of thought in economics, ecological management and human rights aided by fledgling grassroots movements (e.g., Occupy Now) and Internet communities. Although disparate and irregularly connected, each seeks in its own way to address the many serious deficiencies of centralized governments (corruption, lack of transparency, rigidity, a marginalized citizenry) and concentrated markets (externalized costs, fraud, the bigger-better-faster ethos of material progress). Taken together, these trends suggest the emergent contours of a new paradigm of ecological governance.  

For all their power and potential, however, none of these movements or their visions can prevail without some serious grounding in law. And in this regard we believe the legal and moral claims of human rights can be the kind of powerful, mobilizing discourse that is needed for real change. Human rights can provide a broad, flexible platform and a respected legal framework for asserting the right of everyone to a clean and healthy environment.

What do you think? Leave a comment below.

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