So much of nature, culture and economic activity utterly depend upon the commons — the atmosphere, the oceans, wildlife and seeds as well as the Internet, scientific knowledge and creative works, among countless other commons. And yet corporate-dominated markets are doing everything they can to privatize and commodify our commons. After all, there is big money to be made in mining the deepsea ocean floor, patenting the genes of plants and animals, claiming proprietary control of agricultural seeds, owning new sorts of synthetic nano-matter that can replace ordinary substances, and owning mathematical algorithms that power software programs.

The great, unacknowledged scandal of our times is the market enclosure of things that belong to all of us. Instead of having free or low-cost access to the shared resources that belong to all of us, companies are privatizing them and forcing us to pay. This story is well-told by such books as Raj Patel’s The Value of Nothing, Lawrence Lessig’s Free Culture, Lewis Hyde’s Common as Air and my own Silent Theft.

Rather than review this history of contemporary enclosures, I want to focus here on what we going to do about them. How can we be more effective in combating enclosure and in making the commons paradigm more visible and consequential in politics, economics and culture?

The great, unacknowledged scandal of our times is the market enclosure of things that belong to all of us.

We must first recognize that the commons inhabits a political environment that is often quite hostile to it. In fact, the State and Market often have their own very good reasons for disliking the commons. For one thing, both are hungry for the revenues that come from exploiting the commons — and both State and Market often find it useful to support each other’s political objectives.

The market/state duopoly, as I sometimes call it, has another reason for disliking the commons:  The commons often requires significant transfers of power to the commoners and new forms of social equity. So there is often a shared political interest for doing the wrong thing — that is, to enclose the commons.

Many resources that belong to us all are being privatized and commodified because corporations see them as cheap or free fodder for the voracious market machine. At the same time, these resources represent a cheap and convenient waste dump — a place to get rid of all the nasty externalities that businesses don’t want to internalize into their cost structures.

Comparing commons and market stories

If we are going to raise awareness of the commons and make it a serious element in policy discussions, then we are going to have to talk more aggressively about enclosure — because the privatization of the commons is in fact a profound disenfranchisement of people.

Having said this, we commoners need to do a better job of articulating and advancing what I call the value proposition of the commons. Here’s what I mean by that. The market has its own well-developed, aggressively promoted story about how material wealth is created and human progress is advanced. It’s a story about how private property rights, money and market exchange generate wealth. It’s a process that considers Gross Domestic Product a proxy for happiness. The market story is a story of bigger, better and faster, and it is the dominant norm of our time, a global religious catechism that is only now starting to come unravelled, thanks to the economic crisis of 2008.

The commons is a very different narrative — one that fills out that picture that this mainstream economic narrative omits. The value proposition of the commons cannot be expressed as a “bottom line” because it’s all about community empowerment and social equity and ecological security. Unfortunately, this is a fuzzy and complex storyline in the public mind, at least right now.

Some other reasons that the commons narrative has trouble going mainstream have everything to do with the intrinsic nature of the commons. Unlike the market narrative, which presumes to be standard and universal, the commons consists of countless distinctive and locally rooted examples, each different. The market celebrates quantitative measures of its performance, and so comparisons about who’s best, who’s richest, and so forth, are easy. By contrast, the value of the commons tends to be qualitative, social, spiritual, ecologically complex and long term. Needless to say, these values cannot be plugged into a spreadsheet and put into rankings, like the “Commons 500”.  As a result, the commons is harder to see and name as a distinct sector — and therefore, it can be harder to reclaim a commons or build one from scratch.

The market story is a story of bigger, better and faster, and it is the dominant norm of our time, a global religious catechism that is only now starting to come unravelled, thanks to the economic crisis of 2008.

In addition, the commons storyline is relational, not transactional. While markets are focused on individual initiative, conflicts and competition and winners and losers, the commons is focused on stewardship, community benefit and sustainability. Guess which narrative is more dramatic and gripping to the media?

Paradoxically, the commons does all sorts of work that markets depend upon — but this work usually goes unacknowledged. The “caring economy” and other so-called “women’s work” is part of a vast, off-the-books shadow economy that invisibly props up the formal market economy. Nature is also part of this shadow economy. So is the public domain of information and culture. It tells you something about the vaunted “productivity” of the formal economy that it quietly relies upon so many invisible commons-based subsidies!

Whilst paywalls and patents are used to privatise access to technology and knowledge, other organisations are countering this by maintaining open access to medical findings, scientific knowledge and other cultural products.

Of course, many leaders of the market/state duopoly are not troubled by this. They prefer to keep the commons in the shadows. Why call attention to a valuable off-the-books subsidy?  By keeping the commons unnamed, it is easier to neutralize it as a competitive power base. Without a vocabulary for naming the commons, the commons can be used and abused with impunity. It becomes harder to organize a community to defend it. Commons-based alternatives that might disrupt the status quo can be safely ignored.

Going mainstream with the commons discourse is difficult in many countries — most notably, the United States — because it clashes with the basic premises of laissez-faire individualism. When the US government tried to vanquish Native Americans in the 1800s, for example, the first thing that it insisted upon, as a legal precondition for US citizenship, was that Native Americans abandon their common ownership regimes and assign individual property rights to everyone. I can think of no better way of destroying a people.

The enclosure strategy is: Disassemble the connections that a community has to itself, its resources and its social traditions and rules. Convert commoners into consumers and make them dependent on the money economy.

This enclosure dynamic plays itself out repeatedly today. The strategy is:  Disassemble the connections that a community has to itself, its resources and its social traditions and rules. Convert commoners into individual consumers and producers for the market system, and make them more dependent on the money economy. We must frankly recognize that “free markets” may entail a cultural agenda and identity shift.

Now, the argument is often made that the commons is simply a vestigial, pre-modern throwback. They say it’s impractical, it’s inefficient, it’s a “tragedy”.  With the failures of communism and state socialism still hanging in the air, the claim is made that self-organized collective action threatens “freedom”.  We need to fight these myths by asserting the real value-proposition of the commons.

Deepest of origins

I will concede, the critics get it partly right:  the commons has pre-modern origins. I’ll go a step further. I’m convinced that the commons is as old as the human species. It predates the modern marketplace and state — and as the great historian of the commons Peter Linebaugh has put it, the commons is “independent of the temporality of the law and state”.

Evolutionary biologists, geneticists and anthropologists now tell us that cooperation is hard-wired into the human species. It is, they say, an “evolutionary stable strategy” — one that confers competitive advantages on homo sapiens in its ongoing struggle to survive. Scientists say that such evolutionary innovations as language, agriculture, altruism and even the whites of our eyes, reflect our natural propensity to cooperate and develop social trust.

As social order has evolved, so have the institutions that can protect our collective interests. In Roman times, the Emperor Justinian famously established several categories of law to reflect collective ownership. Things were considered res communes if they were owned in common by everyone as a whole. The Code of Justinian states:  “By the law of the nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea.”  Another category of property was things that belonged to the State — res publicae. Things that belonged to no one — such as wild animals and abandoned property — were considered res nullius.

Another landmark in the history of the commons was the adoption of the Magna Carta in 1215 A.D. and a few years later, the Charter of the Forests. A series of conflicts and civil wars between the commoners and barons and the king eventually forced King John to formally recognize commoners’ rights — from due process rights and habeas corpus to the right to use the forest commons to supply their primary subsistence needs — for food, firewood and building materials.

I recall this history because it is another reason why the commons has been marginalized. Much of its history has been forgotten or bastardized. Consider our skewed remembrance of John Locke, who is responsible for the most celebrated and enduring theories of private property. Locke considered it a divine right for people to claim private property rights in things that they made with their own labor. What is usually omitted from Locke’s formulation of this right is his significant qualification — “…so long as there is enough, and good left in common for others.”

Recovering the history of commons law will show that human well-being is best served by respecting the integrity of regional ecosystems (which may or may not coincide with political boundaries) and the stability of local and regional communities.

In other words, private property rights can be justified only if the common pool resource is preserved intact. That often requires a commons. Let’s just say that the Wall Street Journal and Financial Times have forgotten such things. It reminds me of the novelist Milan Kundera’s famous line, “Man’s struggle against power is the struggle of memory against forgetfulness.”

Without a coherent, big-picture history of what I call “commons law,” it is hard for commoners to argue in courts and legislatures for what is theirs. The law frequently ignores or rejects commons-based approaches. That is why I am currently working with a noted international law and human rights professor, Burns Weston of the University of Iowa College of Law, to try to recover and refurbish this history. We want to go back to Roman times, the Magna Carta, the Charter of the Forest, the public trust doctrine, and points in between, to regenerate a body of “commons law” that can provide new legal justifications for the commons. We call this the Commons Law Project, a multi-year effort to explore ecological governance in partnership.

We need to recover the history of commons law, and regenerate it for our times, so that we can begin to imagine and invent new approaches to protecting our natural ecosystems. Existing law is predicated on the idea that the greatest benefits come from maximizing market exploitation of natural resources. It assumes that those resources are inexhaustible and that the byproducts of market activity (e.g., air and water pollution, toxic waste, climate change) are negligible. This is simply not true — yet the deep premises of modern law presume that maximizing private property rights, individual self-interest and market exchange will necessarily yield the greater public good, as Adam Smith’s Invisible Hand declares.

Recovering the history of commons law will show, on the contrary, that human well-being is best served by respecting the integrity of regional ecosystems (which may or may not coincide with political boundaries) and the stability of local and regional communities. The market needs to become the servant of these needs, not the master. Within a framework of law and public policy, communities must find new ways to limit their market-driven exploitation of nature. That’s where a new type of commons-based law can be helpful. It can help us invent new types of socio-legal mechanisms to protect ecological commons. It can also provide a valuable body of moral and legal principles to which contemporary environmental activists can appeal in their political advocacy.

In a larger sense, recovering the history of the commons can help us develop a new grand narrative for the commons. It can help us understand how the dynamics of enclosure in the past are repeating themselves today. It can help us recognize who are the victims of enclosure:  chiefly women, the poor, the elderly and others who depend on the commons for subsistence.

Tearing fences down

The history of the commons is also a source of inspiration. It can validate the creativity of commoners of the past who struggled to protect their shared wealth and self-determination. I only recently learned about the medieval tradition of “beating the bounds” — an annual community perambulation around the perimeter of the commons — complete with good food and drink.

The event celebrated the community’s identity as commoners while providing a way to tear down any fences, hedges or other enclosures. I was astonished by this revelation — commoners once had the affirmative legal right to knock down enclosures of their shared resources! We need to recover and remember the history of the commons as a way to help understand some challenges facing us today.

I see great potential in the commons because it goes beyond political ideology to propose a paradigm shift, a different worldview. It knits together the economic, political, cultural and humanistic into one coherent discourse. It empowers individuals to help themselves. It helps reconnect people with each other, and with the earth. It helps regenerate personal meaning and social tradition. It helps foster sustainable management of ecological resources.

For me, it is the ethic of the commons that may be most valuable. Alain Lipietz, a French political figure and student of the commons, traces the word “commons” to William the Conqueror and the Normans. I love the etymology of the word. It comes from the Norman word commun, which comes from the word munus, which means both “gift” and “counter-gift,” as a duty. Munus is related to what the economist Karl Polanyi called “reciprocity”.

I think we need to recover a world in which we all receive gifts and we all have duties. This is a very important way of being human. Tragically, the expansion of centralized political and economic structures tends to eclipse our need for gifts and duties. We rely on money or the state for everything. And so we forget what Ivan Illich called the “vernacular domain” — the spaces in our everyday life in which we create and shape and negotiate our sense of how things should be:  the commons.

The basic problem is that we need to rediscover “commoning” — the commons as a verb, the commons as a set of social practices. “The allure of commoning,” Peter Linebaugh has written, “arises from the mutualism of shared resources. Everything is used, nothing is wasted. Reciprocity, sense of self, willingness to argue, long memory, collective celebration and mutual aid are traits of the commoner.”

Now, the really great thing about commoning is that it is not just a figment of history. It’s alive and growing!  In fact, today we see the rise of countless self-styled commoners — people who see the commons as a way of dramatically reframing how they might conduct politics, conceptualize economics and revitalize democracy.

Today we see the rise of countless self-styled commoners — people who see the commons as a way of dramatically reframing how they might conduct politics, conceptualize economics and revitalize democracy.

In November 2010, in Berlin, some 200 self-identified commoners from 34 countries gathered in Berlin at the first international commons conference, hosted by the Heinrich Böll Foundation and the Commons Strategy Group. It turns out that agricultural activists from the Philippines and computer hackers from Amsterdam and defenders of urban spaces in Croatia and free culture advocates from Brazil, despite their obvious differences, actually have a lot in common. They all celebrate an ethic of participation, inclusiveness, transparency, social equity and collective innovation.

There are some amazingly large and robust trans-national communities of commoners who are making serious progress in taking charge of the common wealth. These include a vast network of free software programmers who created GNU Linux and thousands of other shareable software programs; the Wikipedians in dozens of countries who edit the largest encyclopaedia in history; the millions of digital artists and authors in more than fifty countries who use Creative Commons licenses; the growing world of open access scholarly publishing, which has bypassed expensive commercial journals to make their work freely available in perpetuity; the Open Educational Resources movement, which creates and shares open textbooks and curricula and learning materials.

Beyond this exploding universe of digital commoners, there are self-identified commoners who are recovering urban land and community gardens; commoners who are fighting to keep genetic knowledge free and open; commoners who are building solar energy panels on public rights-of-way; commoners who are building open-source hardware and agricultural equipment; commoners who are ingeniously using Internet technologies to improve ecosystem protection. The list goes on and on.

So how do we open some new conversations and build some new alliances?  I propose the following strategies:

• Let us recover and remember the history of the commons so that we can appreciate its role in different historical and political contexts.
• Let us develop a grand narrative about the commons that can be popularly understood, so that we can communicate the value proposition of the commons better.
• We should try to bridge the cultural divide between digital commoners and natural resource commoners, because there truly are important synergies between the two.
• We should try to formulate how the commons can work with existing state institutions and policy structures, while inventing new forms that are more appropriate to the commons.
• We must try to reframe mainstream political and economic discourse with a commons perspective, so that some bright, alternative futures can be seen.
• And finally, we must strengthen the linkages between commons scholars, practitioners and activists, so that we can learn from each other and support each other’s work.

I realize this is a ridiculously big wish list, but on the other hand, we have every reason to dream big. Our problems are daunting and our energies are growing. It’s time to take the commons to the next level.