6. The Eclipsed History of the Commons

Now that we have taken a quick tour of the Commonsverse in its broad scope, it is a good moment to circle back to learn about its rich, neglected history. Capitalist culture likes to think that all of history leads inexorably to greater progress and 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) that have very different priorities.

Commons tend to be nested within other systems of power and institutional relationships, and therefore are not wholly independent. There is often a serious “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. Their 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 of peak capitalism, in gift economies such as academia and local democratic associations. 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. At 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.

In this chapter, I want to review some of the more salient themes of the commons throughout the centuries. Historical small-scale commons belie the claims made by contemporary economists that humans are essentially materialistic 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 globally integrated market societies. Never before in history have markets organized so many major and granular elements of human society into such a tight, interlocking skein. 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 large-scale, market-based systems are unstable and fragile. Seventeen years after the 2008 financial crisis, the great powers are still scrambling to reestablish the social trust, credibility, and stability that global and national markets need to function effectively. There is no question that the human race (or at least the industrialized West) needs to rediscover and reinvent institutions of human cooperation. It remains to be seen whether this epiphany will come through crisis or choice.

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 seventeenth century. In the words of Hobbes, life is “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 nonrational behavior are just as significant forces 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 even seem to 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 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 few decades, 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 hey-day of market culture and its ethic of competitive individualism. A case of the dominant 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 may sometimes diverge through disagreements, but shared purposes and practices can help make them closely aligned and self-reinforcing.

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 cooperative ethic. Her research unearthed a neglected ethnographic reality: that commons can persuade individuals to limit their narrow self-interests and support a larger collective agenda. Evolutionary scientists are confirming these claims at the more elemental level of genetics, biology, neurology, and evolutionary psychology.

The implications of this research are more far-reaching than we might imagine. Scientists are learning how underground mycelium are deeply entangled with the well-being of trees and plants, how plants have far more agency and intelligence than once thought, and how all living beings sustain themselves by creating “meaning” through their shapes, behaviors, and communication (the subdiscipline of biosemiotics). Rejecting the Enlightenment narratives that elevate humans above and apart from nature, it is becoming increasingly clear that human beings are profoundly implicated in a complex web of other lifeforms. We participate in an “ecology of selves,” as anthropologist Eduardo Kohn puts it. Indigenous Peoples have known this for millennia: The world is a communion of living beings. Commoning, as a relational social system, provides a special portal for partaking of this animism of life—a topic we’ll return to in Chapter 7.

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, once robust, has been largely vestigial and ignored for generations. Yet this legal tradition 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.

The term “enclosure” is generally associated with the English enclosure movement, which occurred at various times in medieval history and through the nineteenth century. To put it plainly, the king, aristocracy, and/or landed gentry stole the pastures, forests, wild game, and water used by commoners, and declared them private property—theirs. Sometimes the enclosers seized lands with the formal sanction of Parliament, and sometimes they just took them violently. To keep commoners out, it was customary to evict them from the land and erect fences or hedges. Sheriffs or gangs of thugs made sure that no commoner would poach game from the king’s land.

Enclosure was irresistible to the affluent 1 percent of medieval England because it was an easy way to grab more wealth and power with the full sanction of the law. It could help struggling barons and upwardly mobile gentry consolidate their political power and increase their holdings of land, water, and game. But subsistence commoners greatly resented enclosures, as we can see in an anonymous protest poem from the eighteenth century:

As enclosures swept the villages of England, commoners suffered serious hardships. They depended upon the forest for their firewood and roof thatches, and on acorns to feed their pigs. They relied on shared fields to grow vegetables, and on open meadows for wild fruits and berries. An entire rural economy was based upon access to the commons. Barred from using their commons, desolate villagers migrated to cities, where the emerging Industrial Revolution turned them into wage slaves, if they were lucky, and beggars and paupers if they weren’t. Charles Dickens drew upon the social disruptions and injustices of enclosures in writing Oliver Twist, Great Expectations, and his other novels about London’s troubled underclass.

One important goal of the English enclosures was to transform commoners with collective interests into individual consumers and employees, which is to say creatures of the marketplace. The satanic mills of the Industrial Revolution needed obedient and desperate wage slaves. One of the lesser-noticed aspects of enclosures was the separation of production and governance. In a commons, both were part of the same process, and all commoners could participate in both. After enclosures, markets took charge of production and the state took charge of governance. The modern liberal state was born in tandem with a nascent capitalism.

While the new order brought about vast improvements in material production, those gains came at a terrible cost: the dissolution of communities, deep economic inequality, an erosion of self-governance, and a loss of social solidarity and identity. Governance became a matter of government, the province of professional politicians, lawyers, bureaucrats, and monied special interest lobbies. Democratic participation became mostly a matter of voting, a right limited to men (and at first, property owners). Enclosure also isolated people from direct encounters with the natural world, and marginalized social and spiritual life.

During the course of a hundred and fifty years, from the late 1600s to the mid-1800s, about one-seventh of all English common land was carved up and privatized. As a result, deep inequalities took root in society and urban poverty soared. The foundations of the modern market order were being laid, and the masters of this new world had no need for the commons. The hallmarks of the new order would be individualism, private property, and “free markets.”

Karl Polanyi was an economic historian who studied this unique transition in human history—the end of the commons and the rise of markets and enclosures. In his underappreciated 1944 classic, The Great Transformation, Polanyi noted that for millennia, people had been bound together through community, religion, kinship, and various other social or moral ties. All economic systems had been based on systems of reciprocity, redistribution, or householding, and people were induced to produce things by way of “custom and law, magic and religion.”

Then, as enclosures proceeded in the seventeenth through nineteenth centuries, production and profit became the central organizing principles for society. Instead of focusing on household use within a stable social context, production became reoriented toward private gain and accumulation. This required that numerous resources, especially land, labor, and money, be redefined as commodities. Polanyi called these “fictional commodities” because human life and natural ecosystems cannot really be broken into fungible, substitutable units. But markets require that nature’s gifts, labor, and money be treated as commodities of discrete units if they are to be assigned prices and made suitable for trade and speculation.

These commodity fictions quickly expanded to other realms, making virtually everything subject to purchase and sale. Food, water, fuel, firewood, and other necessities of life—once available as a matter of right through the commons—could now only be acquired through the market, at a price.

Polanyi characterized the history of enclosure as “a revolution of the rich against the poor.” “The lords and nobles were upsetting the social order,” he wrote, “breaking down the ancient laws and customs, sometimes by means of violence, and often by pressure and intimidation.” As the market economy gained the upper hand, it imposed its commodity logic on everything—nature, labor, social life—and assigned everything a price.

Karl Marx, of course, had a great deal to say about the dynamics of capital accumulation and how they shaped the workplace, colonized social life, and exploited public resources. Much of his political and economic critique analyzes and denounces the fierce private enclosures of the commons. However, Marx had relatively little to say about the commons itself as a locus of resistance or as a generative source of production and social reproduction. This was surely because the most significant development of his time was the sheer power of capitalist modernization. He saw modern workers’ collectives as the most promising vehicle for creating new forms of commons.

Given the market orientation of contemporary law, the legal principles that originated to protect the commons and commoners over centuries have mostly been eclipsed, as noted earlier. This is partly because the Western tradition tends to see law as a written system of rules and sanctions, not an informal social tradition. With this shift, law moved from more local, grounded circumstances to remote, centralized state institutions like national legislatures, courts, and presidents. As the state coevolved with industrial capitalism, the modern liberal polity learned to privilege individual rights, contract freedom, private property, and market exchange over all else, including commons. Committed to this worldview and system of power, the liberal state has trouble recognizing or enforcing collective interests (except those of investors, via the corporation).

If we are to understand the law of the commons, then we must start by expanding our notion of law itself. Law is not just formal, written, and institutional; it is also informal, oral, and social. The law of the commons represents something of a threat to formal law because its substance and legitimacy derive from the grounded, always-evolving social practices of the community. Commoning is often experienced as more responsive and morally legitimate than state law, particularly when the state itself is rigid, corrupt, incompetent, or captive to corporate influence.

Of course, state law can play many constructive social and economic roles, particularly in confronting corporate abuses or antisocial behaviors such as racial or gender discrimination. And informal communities may have their own odious attitudes and criminal tendencies. My only point is that a formal system of statutes, court rulings, and state enforcement will become a source of tyranny if it does not connect with and respond to “the street.” It must have robust feedback loops to help formal law evolve and reflect the changing sentiments of ordinary people.

In a brilliant essay, “The Life of the Law Online,” legal scholar David R. Johnson likens law to a biological organism. He sees law as more closely resembling life than a machine; in this sense, it has a life and history of its own. “Law is a story we tell each other about justice and shared social values,” writes Johnson. “We have to retell this story every day—it replicates and persists only insofar as we do that.”

That is essentially how the law of the commons works. A given community creates its own body of (informal, social) law to suit its needs and then replicates it through everyday social activities. This is how commons devoted to open source software, Wikipedia, and academic disciplines arose. As self-organized communities, they created their own self-enforced rules and social ethics. Sometimes commoners may actually succeed in formalizing their law through conventional systems of state law (statutes, regulations court rulings), but this is rare. As historian Peter Linebaugh has put it, “Commoners think first not of title deeds, but of human deeds: How will this land be tilled? Does it require manuring? What grows there? They begin to explore. You might call it a natural attitude.”

Custom is therefore a vital element of the law of the commons. It functions as a cultural code that provides a unifying social ethic to a community. It is a shared narrative that links the community to earlier generations and to a repository of wisdom about local resources and how best to manage them. As property scholar Carol Rose has put it, custom is “a medium through which a seemingly ‘unorganized’ public may organize itself and act, and in a sense even ‘speak’ with the force of law.”

This corresponds to David Johnson’s claim that law amounts to a “self-referential, organizational identity” that belongs to the people who make it. “If law has a life of its own,” he writes, “and in some sense causes its own form of order and persistence, we should be studying its biography rather than pretending that we can design and repair its mechanisms from the outside.” In other words, we must understand the subjective, socially internal dynamics of commons and recognize that this is where law originates and truly lives.

When law is seen in this perspective—not just as a series of formal constitutions and statutes but as a self-organized system that a community creates to manage itself and its resources in orderly and fair ways—it is easy to see that the commons itself is a living embodiment of law. It amounts to an evolving social covenant. Individuals come together to negotiate the rules and norms that will govern their community. They specify how members may access and use shared resources. They set about making rules for managing land, water, fish, and wild game, and for monitoring usage and punishing vandals and free riders. In this broader sense, the law of the commons extends into the mists of ancient history and precedes formal written law by many millennia.

From the outside, the law of the commons as embodied in an Indigenous culture may seem static and slow-moving, even frozen. But in truth, “commons law” constantly adapts to changes, often in small incremental ways. It is especially mindful of local realities, its signature strength. The tensions arise when formal, written law is not sufficiently congruent with such “commons law” and does not leave space for commoning. Is formal state law too strict and rigid, or is it open to change through peaceable politics and due process? Does it so insist upon market relationships and norms such that commoning is not possible?

Throughout history, state law has occasionally recognized the “vernacular law” of commoners—or at least, larger public needs—by formalizing such principles within the legal apparatus of the state. One of the earliest such instances of this occurred in the Roman Empire, which recognized explicit categories of law for property, including common property. In 534 ad, Emperor Justinian gave the first legal recognition of the commons when he enshrined res communes in his Institutes of Justinian body of law.

This legal principle—that neither the state, commerce, nor citizens could make proprietary claims on resources that belong to everyone—has survived in what is known in American law as the “public trust doctrine.” This doctrine formalizes the idea that the state has an affirmative duty to protect natural resources for present and future generations; it cannot sell or give away land, water, or wildlife to any private party. The public trust doctrine has traditionally been applied to rivers, oceans, and the coastal shoreline, and is invoked to protect the right of the unorganized public to use those waters for fishing, navigation, and recreation. Versions of the public trust doctrine can also be found in most legal systems of the world and in many of the world’s major religions. It stands for the principle that certain resources belong to everyone, morally and legally, and that the state cannot abrogate this right.

It is significant that res communes is a separate category from res publicae, another legal category that describes public things that belong to the state. Res communes is not simply “state-owned” property, but a class of property that lies beyond the power of the state. Not surprisingly, heads of state are not generally pleased to have to recognize the commons as a separate sphere of resources with its own moral authority and legal protection above and beyond their control.

Consider King John. In twelfth-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 1217 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 companion 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. For the first time, commoners enjoyed formal, written 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 while enforcing the king’s enclosures.

As this brief history suggests, the law of the commons points to a different type of 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. They needed to ritualistically affirm that the basic human rights of commoners were indeed being upheld. Of course, a piece of paper has proved to be of 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 and the Charter of the Forest 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 eradicated 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 right 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 Liberal State and the Eclipse of Vernacular Law

“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.

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, which transformed 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 and 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 of commoning—and the vitality of commons—slowly disappeared.

State regulation evolved as another means to compensate for the problems introduced by unfettered markets, namely the displacement of costs and risks to 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 transnational 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. This is 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 structurally driven abuses of people and nature 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 management of public assets state trustee commons (discussed at length in Chapter 11).

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, governments tend to see even these goals as unacceptable burdens on capital and corporations and as a drag on economic growth. 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. State regulation is a flawed system of governance in any case because it is generally dominated by legal proceduralism and scientific expertise. The views of local residents and individual consumers don’t carry as much weight in decision-making as those of lawyers, credentialed technical experts, and corporate officials. Ordinary people 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). Facing formidable and complicated state legal systems, it is no surprise that commoners usually fail to secure adequate protections for themselves.

Over the years, a number of autonomous Marxists have made astute critiques of the capitalist-dominated state and its betrayal of the commons. These scholars include Massimo De Angelis, a noted Italian commons scholar; George Caffentzis, founder of the Midnight Notes Collective; Silvia Federici, a 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 each as commodities whose value is identical with their price. And the liberal polity, dedicated to a legal proceduralism, insists on seeing humans as isolated individuals and market players shorn of shared (nonmarket) interests and collective interdependencies.

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 ties needed to participate in market exchanges? Can a market-based society survive without the commons?