As various commons grow and become more consequential, they start to acquire a moral, economic, and cultural power in their own right. So begins a series of scuffles and clashes between commons and the nation-state or, more accurately, state power. The conflicts can be relatively minor, such as the disputes between Boston neighborhoods and the city government over snowplowing and parking spaces, described earlier (page 17). But even small clashes like these can illuminate the deeper philosophical and political differences between commoning and state power.
The basic story is that the commons paradigm, as a social system of value-creation and culture, is usually inscrutable to conventional politics and policymaking, if not incompatible with them. Much of the current story about commons is how commons and states might creatively finesse or come to terms with their differences. What modus operandi can be devised?
In theory, liberal democracies seek to promote the greatest good for all through a regime of individual rights and liberties, universally enforced. But the liberal order is deeply allied with capitalist interests as the market/state order. It functions as a formidable hegemon that rarely welcomes the commons or other potential rivals. Historically, in fact, the state has had very little to do with commons except when commons become threatening to the market/state or vulnerable enough to enclose easily. (See Chapters 3 and 4.) Otherwise, the state has merely tolerated the commons as a marginal, innocuous activity with few affirmative benefits for the state. After all, commons generally do not usually create much taxable wealth or intersect with the geopolitical agendas of the market/state.
This equation changes, however, once commons start to become larger and more robust—that is, when commoners might begin to indirectly challenge state power or diminish an industry’s market revenues. The latent power of commoners is their ability to withdraw from the market/state system and produce self-reliant alternatives. Think open-source hacking, alternative currencies, or seed sharing, all of which are sometimes seen as threats to market interests or state authority. Neither the state nor market likes “competition” from the apparatus of commoners’ power. In any case, the state and capital would just as soon seize the resources stewarded by commoners through enclosure—and often, they do. Seizing land, timber, water, minerals, fisheries, data, information, and software code held by commoners is attractive to the market/state and often entirely “legal” (as determined by the state itself ). Annexing these resources into the market machine can boost a company’s bottom line, promote economic growth, and increase the state’s tax base. What’s not to like? say politicians, investors, and CEOs.
The truth is, guardians of the market/state order have little interest or expertise in empowering commons. State power generally seeks to centralize and regularize its control through bureaucratic systems and universal law. As political scientist James Scott has made clear, “The modern state, through its officials, attempts with varying success to create a terrain and a population with precisely those standardized characteristics that will be easiest to monitor, count, assess and manage. The utopian, immanent and continually frustrated goal of the modern state is to reduce the chaotic, disorderly, constantly changing social reality beneath it to something more closely resembling the administrative grid of its observation.”
Needless to say, this is a hostile context for commoning. The commons, state, and market are quite different in character, but their power and cultures do overlap and get entangled. This chapter probes some questions that this reality raises, such as: Can commons and the state fruitfully coexist, and if so, how? Or should commons try to avoid state entanglements altogether to make it on their own? Are there ways that state authority, law, and policy could be reimagined to affirmatively support commoning?
An insightful essay about state/commons relations is Roy L. Heidelberg’s “The Incompatibility of the Commons and the Public.” Heidelberg reaches back to a 1531 treatise on how to train statesmen, Book of the Governor, by English diplomat and scholar Thomas Elyot. The book meditates on the meaning of “the people” as a political category.
Drawing on Roman categories of thought, Elyot distinguishes between the public and commons—between populus and plebs—by asserting that “populus is a more inclusive concept because it contains all classes of people” whereas the commons consists of “only the multitude, the base and vulgar inhabitants not advanced in honor or dignity.” In essence, “the commons” is seen as particular, informal, and limited in scope, while “the public” (citizens as governed by the state) are regarded as the people as a whole, indivisible. Or as Heidelberg puts it, “the commons lacked what the people contained.”
This framing reflects the interests of state power. The state asserts its supremacy to declare how “the people” shall be understood, subsuming commons into a larger imagined collective, the nation, which is governed by the state. Commoners may have particular identities and local practices for sharing, but the state ultimately overrides their framing of “the people” by instead claiming a superior notion of collective: (nominal) civil equality for everyone under state law.
This shift entails a bitter irony, notes Heidelberg: “The success of the commoners for recognition of their rights and liberties is only sensible to the extent that they relinquish the informality of the commons in favor of the order of the state.” In other words, commoners must largely abandon the very activity, commoning, that defines them. State power thus declares a definitional shift of “the people” from “the negotiated sharing of the commons to the wealth production of private property”—a topic that John Locke’s political philosophy helped to ratify (see p. 173). And so begins the minuet of power between the state and capitalism, aka the market/state.
This history helps reveal that the state’s relationship to the commons is at bottom a political question. Commoners may wish to retain their sovereignty as voluntary local collectives, but the state declares that people shall henceforth be an undifferentiated “public” of citizens defined and governed by the state. Commoning is tolerated only to the extent it doesn’t call into question state power and its political priorities. In this sense, the very idea of the nation-state conflicts with the concept and practices of commoning.
Yet as political theorist Bob Jessop has noted, “There is no general theory of the state and commons.” The two tend to have little or no formal juridical relationship. Indeed, the state has historically little or no institutional commitment to the commons except when forced to do so, as we saw when commoners, after years of armed conflict, forced King John in 1217 to ratify the Charter of the Forest recognizing certain rights of commoning.
Seen from this perspective, it’s clearly fatuous for nation-states to claim that they will govern the “global commons.” First, a “global commons” (as a political or governance regime) doesn’t exist. And if it did, nation-states would regard it as a threat to their sovereignty. There are indeed many common-pool resources (CPRs) at the planetary scale such as oceans, space, the internet, and the atmosphere (if one is willing to use an anthropocentric term, “resources,” to describe living systems). But state power as constituted is unwilling and unequipped to manage these global CPRs that have powers that far outstrip those of any nation-state.
The real challenge facing contemporary commoners, then, is how to reconstitute state power itself to be supportive of commoning. State power is not going away, so let’s explore how commoning might foster a postcapitalist, postgrowth form of provisioning and governance. Since the idea of “the people” as a coherent, indivisible citizenry within a geographic territory is increasingly a problematic fiction—global ecological crises, climate migration, internet culture, and commerce are making national boundaries and identities somewhat notional—the idea of the commons may have greater practical value than market/ state traditionalists might assume. It could help shore up the operational deficiencies of centralized state administration in a radically interconnected world of distributed agency. Commons might also bolster trust in state power and its legitimacy if acceptable partnership deals could be negotiated. The state may have legality on its side, but that power is quite different from the social legitimacy that commons could offer.
So it’s worth pondering: How might commoning help reconstitute state power, and what might that look like? I offer four proposals: new principles in international and constitutional law, better state trustee commons, creative legal hacks on Western jurisprudence, and commons/public partnerships.
As mentioned, the state has strong incentives to ally itself with market forces in order to advance the privatization and commodification of public resources. Enclosures + economic growth = power and tax revenues. But if we are going to arrest the collapse of the planet’s climate, the economic logic of driving growth with carbon energy must be replaced with an ecorestorative vision and mindset. This, in turn, requires that we reconceptualize the role of the state so that it mitigates capital’s demands and authorizes and supports commons-based provisioning.
In my 2015 book Green Governance, coauthored with international law scholar Burns Weston, we explained how political pressure must be brought to bear on states to recognize certain “macroprinciples and policies” that can support commons. These include:
In most nations, the idea of the collective good is so conflated with state power that it is difficult for people to imagine the commons serving that purpose. To the extent it is considered at all, the commons is generally equated with “the citizenry” or “the public.” It does not bring to mind distinct communities of commoners who show initiative, responsibility, and creativity on their own terms. It may therefore take some cultural imagination to entertain the idea of the commons as a separate sector independent of the state, with its own purpose, moral compass, and political identity that also advances the common good.
There are legitimate policy questions about how national, provincial, and city governments might formally recognize the commons in law. It is not self-evident how the state could assure that local commons would not abuse their authority or the environment, or discriminate unfairly against some people. These are serious questions, but I do not consider them insuperable. After all, the state has delegated considerable authority to corporations to perform certain functions while retaining ongoing oversight. If the state can charter corporations as a vehicle for serving the public good, in principle it ought to be able to delegate similar types of authority to commons (whose powers and holdings are far more limited than those of corporations).
Commoners have deep, close, and long-term relationships to their care-wealth and thus have greater incentives to safeguard them than rip-and-run corporations do. And diverse commons demonstrably serve the public good as much as or more than state-chartered corporations (and at far less cost to the environment and the public treasury). As systems of governance, commons, properly structured, tend to be far more responsive to “the people” (as citizens or commoners) than legislatures are today. The voice of commoners, as plebs, are generally absent in the councils of state power even if they have so much to contribute in terms of creative engagement, situated knowledge, and perspectives, free from commercial motivation. They could contribute so much.
Chilean political philosopher Camila Vergara contends that even liberal, representative democracies are not welcoming to “plebeian interests,” as she calls them, because elites dominate state governance unless plebeian interests (of commoners and others) have formally recognized constitutional powers. In her remarkable book Systemic Corruption, Vergara calls for constitutional reform to create plebeian assemblies with real power, such as authority to propose and veto legislation and authority over political appointments. Vergara actually identifies treatises by Niccolò Machiavelli, Hannah Arendt, Nicholas de Condorcet, and Rosa Luxembourg that champion constitutional provisions for a “plebian republic.”
Of course, the market/state system is wary of the commons as an independent, potentially threatening power base. It prefers the certainties and rewards of governing through money and pay-to-play politics. Nation-states, for their part, prefer to manage public assets, commerce, and people through strictly standardized systems of control. Commoning appears altogether too informal, irregular, and unreliable, even if the actual performance of commons refutes that prejudice.
Many common-pool resources are so large—national parks, federally funded research, public lands—that they require government to take care of them properly. (Remember: CPRs = the resources only, without commoners. Commons = resources + community + the rules and norms for managing them.) It is impossible to manage large CPRs in the same way as a small village commons might. A larger set of institutional systems and legal rules—a “commons infrastructure”—is needed, but it must also have active commoning to function well, too.
The state trustee commons is one way to manage a large common-pool resource. This is not just another term for state management of resources; it is a way of emphasizing the state’s important macrorole in facilitating commoning. Instead of conceiving government as “just taking care of things” without ordinary people’s involvement, we need to think about how state bureaucracies could facilitate a more robust role for commoning in policymaking and enforcement.
It helps to get the state’s role right in the first place: the state must act as a trustee for commoners. It must conscientiously maintain and protect shared assets from enclosure. It must ensure that those assets are accessible on fair, nondiscriminatory terms, and that commoners have the authority and space to engage in genuine commoning. I like to call government-run programs state trustee commons to emphasize that the resources belong to the people, not the state. The state is a trustee with specific, affirmative obligations to assure maximum possible transparency, participation, and stewardship at the lowest jurisdictional level possible (“subsidiarity”).
A state trustee commons can take many forms beyond conscientious management of government-held assets. One innovative form is the stakeholder trust, in which the state delegates authority to an independent, commons-like entity. A classic example is the Alaska Permanent Fund, a state-chartered trust fund established by the state legislature to collect a portion of royalties for oil extracted from state lands. Every year the trust disperses a dividend from the drilling fees it collects, usually on the order of a thousand dollars to every household in the state. Because the fund is independent of the government and charged to act as a fiduciary on behalf of specific beneficiaries (the citizens of Alaska), the fund can assure that a modest portion of oil revenues directly benefit taxpayers, providing them with a welcome source of non-wage income.
Of course, stakeholder trusts for carbon-based fuels may not be an urgent priority at this moment, but the principle of public benefit from public assets—bypassing the political graft of legislatures—is unassailable. The stakeholder trust model could be adapted to mutualize the benefits from other types of natural resources in the US and around the world, as Peter Barnes outlines in his book Ours, proposing a new form of “universal property.”
Thanks to innovations in social networking, it is also possible to imagine the state providing a greater role to citizens through online platforms. The internet offers many opportunities for wiki-style crowdsourcing of information, such as collecting environmental data, counting the number and varieties of birds and other wildlife, and assisting NASA in classifying craters on Mars. The US Patent and Trademark Office’s Peer to Patent project invites people to submit instances of “prior art” for inventions as a way to improve the quality of patent applications and prevent unwarranted patent monopolies that could inhibit future innovation.
Modern law is not equipped to recognize customary practice or collective choices—the heart of the commons. Nor are there any means in Western jurisprudence to “attribute rights to dynamic collectives without legal personalities,” in the words of Belgian legal scholar Serge Gutwirth. The liberal tradition doesn’t have the legal concepts or analytic approaches to recognize commoning on its own terms.
Hence the importance of vernacular law, the ability of people to generate their own consensual rules, practices, and ethical norms that preserve both their shared wealth and fortify their community. Social critic Ivan Illich celebrated vernacular practice as a way to rehumanize people caught up in systems of institutional domination. Today, most forms of vernacular law in commons have been eclipsed by positive law enacted by legislatures to serve the interests of capital and the market economy. Custom has little stature here. Intent on building globally integrated value-chains to enhance capital accumulation, the leaders of market capitalism regard vernacular law as a vestigial oddity, a bothersome “friction” impeding market efficiency and growth. Ecologically minded or locally committed behaviors are often seen as hostile to business interests, which is one reason why World Trade Organization treaties seek to supersede state, provincial, and local self-determination. The idea of subsidiarity—assigning authority at the lowest, most appropriate level in a system—interferes with the quest for a globally integrated system of commerce and law.
Given these realities, an urgent practical question for commoners is how to stop enclosures and protect their commoning practices, if possible through law. Gutwirth argues that commons need laws that:
take seriously the way [commoners] weave practices, sensibilities, modes of cooperation, vernacular habits, and interdependence into a local and self-sustainable, thus dynamic, whole The commons demand an inductive topic and “becoming” law, rather than the one we know, which is abstract, axiomatic, and deductive. The “law of the commons” would rather have case law and customs generating law for the commons than legislation and legal doctrine because the former respond to the practical constraints and interdependence of those who are engaged in their becoming.
Conventional state policymaking and law are not much help in this task, commoners have found, so they must often devise their own makeshift hacks on existing law.
Two of the most seminal and effective legal hacks in recent history, discussed earlier, are the General Public License (GPL) for software and Creative Commons (CC) licenses for digital and other content. Both sets of legal hacks dramatically reverse the intentions of copyright law by making works legally shareable in perpetuity without any permission or payment required. Instead of automatic privatization of ownership and control, the licenses establish sharing as the default practice!
What’s especially notable is that legal hacks can unleash the power of generative commoning. The trick is to devise legal schemes that, in Gutwirth’s words, can “protect and stimulate the culture of the collective intelligence that learns to detect and take into account the consequences of one’s activity for the others for the commons that exist beyond the individual.”
One legal hack that builds on this idea is the Open Source Seed Initiative (OSSI), launched by a number of farmers, seed breeders, and others. It emulates the licenses used by free and open-source software by giving anyone the right to share agricultural seeds and future derivations so long as subsequent users also make those seeds available for public use. Again, the point of the licenses is to override the law’s presumption that only proprietary control, through patenting, creates value. The licenses instead legalize sharing and collaboration as important sources of public-spirited innovation.
The legal hacks known as the “rights of nature” and “self-owning land” build on the same impulse as the other hacks—to recognize and protect generative powers that lie outside of the market/state worldview. Inevitably, there are complications in trying to use the concepts and language of Western law to protect living orders (rivers, wildlife, Indigenous cultures) operating under very different terms. But for now, these hacks are at least opening up conversations that need to be had, spurring new social movements and legal innovations.
Another set of important legal hacks are reengineering legal frameworks for the governance of corporations, cooperatives, and nonprofits in order to open up zones of commoning. Attorney Janelle Orsi and her colleagues at the Sustainable Economies Law Center in Oakland, California, have devised many creative new governance regimes for cooperatives, digital communities, land trusts, shared housing, and other commons. While such hacks may not seem dramatic, changing bylaws and financial structures for cooperatives, for example, has made it possible to build social movement cooperatives, not just consumer cooperatives. Legal hacks have helped design decentralized organizations to grow from the grassroots, self-managed staff collectives and forms of permanent community ownership.
One reason that vernacular law is so potentially powerful is because commoning reveals that power, which is presumed to inhere in state institutions and officials, actually resides in all of us. We unlock it by organizing the necessary social practices, shared language, collective institutions, and legal structures. Power is more immanent than we may imagine it to be. As geographers J. K. Gibson-Graham memorably put it, “If to change ourselves is to change our worlds, and the relation is reciprocal, then the project of history making is never a distant one but always right here, on the borders of our sensing, thinking, feeling, moving bodies.”
Legal hacks begin a process to bridge the chasm that currently separates state legality and vernacular legitimacy. Ultimately, legal hacks may change the exercise of state power, provide legal authority for commoning, and catalyze a new vision of law.
One of the most important but still emerging legal hacks is the commons/public partnership, or CPP. This is an inversion of the standard public/private partnership, or PPPs, that neoliberal politicians often use to outsource management of toll-roads, bridges, and parking garages. It’s usually a lucrative deal for politically connected corporations and a way for politicians to reduce public spending and investment, all cast as a win-win “partnership” that benefits the public.
Commons/public partnerships reverse the PPP giveaways by providing legal structures for cooperation between commoners and state institutions to meet specific needs. Either may initiate a CPP, but commoners retain general control over the process. State institutions provide vital legal, financial and/or administrative support to neighborhood associations and other peer-organized groups, and commoners provide services to each other and the broader public. Because CPPs are a fairly new phenomenon, there is no typology or standard model for them yet. But most CPPs are pursued at the municipal level, where “getting stuff done” takes precedence over the ideological posturing that often occurs at the national level of politics and government.
A commons/public partnership is not about commanding people to do x or y. CPPs are about creating conditions so that people want to contribute their personal energies and talents. This is critical in enabling commons at scale. The state should set minimal ground rules and performance parameters—and then let the “distributed creativity” of commoners evolve the most appropriate local solutions. This model has worked famously on the internet, as demonstrated by the TCP/IP protocols that lie at the heart of that infrastructure. The tech architects of the internet did not seek to control or direct how people must behave on the internet; they simply established minimal common standards (TCP/IP) for how communications should be formatted, addressed, transmitted, routed, and received. This gave people enormous freedom to innovate as they saw fit within those basic parameters—a freedom that ultimately allowed something wholly original to emerge: the technical protocols for the World Wide Web.
A similar approach has helped create over twenty-two thousand volunteer fire departments in Germany. State authorities provide firefighting equipment, training, and general support, and the fire departments then organize themselves as a volunteer community service, with all the pride and camaraderie that that entails. They teach firefighting and emergency medical skills, assign job tasks, and so on. The state provides needed infrastructures, equipment, spaces, and funds, but community members pour themselves into this framework of meaningful work. To be sure, this is not really a partnership with commons, but more of a limited delegation of state power and responsibility to citizens. It closely resembles a commons.
A similar CPP can be seen in the Bangkok city government’s partnership with shanty dwellers in improving their housing, safety, and education. Starting in 2003, the Thai government channeled funds, in the form of extremely flexible infrastructure subsidies and land loans, to community cooperatives in poor neighborhoods. The groups then developed their own housing solutions and innovations suited to their own needs and desires. Essentially the shantytowns were treated as protocommoners and invited to devise cooperative solutions that would work for everyone. Instead of the usual scheme of providing housing units or renovations directly, the Baan Mankong program put the shanty dwellers at the center of the process of developing long-term, comprehensive solutions.
“Gradually,” said Thomas Kerr, a Bangkok housing rights activist, “the Baan Mankong program has performed so well and delivered beautiful, secure housing at such a scale that it has become more and more difficult for any of the new governments to kill it in favor of a more typical top-down, contractor-driven housing program.” The program’s focus has never been on trying to change or influence the top-level government systems, Kerr said, “but on negotiating to maintain small, institutionalized spaces which allow something very different and more flexible and more community-driven to happen.”
After the activist movement Barcelona En Comú (Barcelona in Common) took over the Barcelona city government in 2015, it initiated a variety of novel, experimental CPPs to support commoning. Under its Citizen Asset Program (CAP), a new measurement tool was created to evaluate the actual contributions of city residents as commoners. So instead of measuring economic returns from transferring public assets to private businesses, as PPPs do, the Social Return on Investment tool measures hours spent by citizens in citizen assemblies, project activities, and building maintenance, and the eventual social returns from them. These calculations help the city visualize the social value of projects and shift long-term building leases to grassroots groups.
Barcelona has also facilitated “self-managed neighborhood spaces,” most notably, the conversion of an old factory, Can Battló, into a social space for the Sants neighborhood. It has also supported self-organized childcare commons, though the public/commons tension about who “the people” are, remains open (e.g., Can public monies be used? Are the commoners universally inclusive?). What’s remarkable is that the city government is committed to helping “the public” become “the common” and to recognize the right to community management and use of “public heritage” spaces.
Another fascinating experiment in CPPs is the Bologna Regulation for the Care and Regeneration of Urban Commons, which later evolved into the Co-City Protocols. This initiative began in Bologna, Italy, as a way for the city government to provide legal, financial, and technical support to projects initiated by commoners. Projects have included management of eldercare centers, kindergartens, and public spaces as well as rehabilitating abandoned buildings. The Co-City Protocols are a developed legal framework and methodology for guiding cogovernance initiatives in cities. Developed by international offices of the Italian think tank LabGov, it attempts to leap beyond the known limitations of bureaucratic administration and leverage the social and creative energies of commoning.
How can the “two sides”—commons and public—interact constructively when each has very different commitments, power, and resources? German commons scholar Johannes Euler and I came to realize that commons/public ventures need specially designed interfaces. If the “two worlds” are going to have respectful, constructive interactions, they need a neutral “third zone” to act as a buffer or intermediary between them. An interface can help a commons protect itself from dangerous enclosures and the state’s power and its demands, while also enabling commoners to communicate and negotiate across differences. An interface operates as a semi-permeable membrane allowing a commons to protect itself from harmful external influences while allowing it the internal freedom to common on its own terms.
Ultimately, the clash between state power and commons comes down to an ontological and epistemological issue. Each puts forward a very different view of human existence and ways of knowing and doing. As Italian commons theorist and activist Ugo Mattei notes, commoners:
move beyond the reductionist opposition of “subject-object,” which produces the commodification of both. [This] helps us understand that, unlike private and public goods, commons are not commodities and cannot be reduced to the language of ownership. They express a qualitative relation. It would be reductive to say that we have a common good. We should rather see to what extent we are the commons, in as much as we are part of an environment, an urban or rural ecosystem. Here, the subject is part of the object. For this reason, commons are inseparably related and link individuals, communities and the ecosystem itself.
We desperately need to devise new forms of governance to deal with the existential challenges of our time. This is uncharted territory for which the old rules and assumptions have limited relevance. But it seems clear to me that the commons—a highly versatile system of governance, provisioning, and sense-making that reintegrates people with each other and the earth—will be part of the new order. Much will depend on finding creative ways to integrate the commons into state power.
David Bollier at david /at/ bollier.org | New Society Publishers