Words: Mothiur Rahman (January 2017)
Image Credits: Volodymyr Tokar; Ravi Roshan; Jan Pinneberg (Unsplash)
Reading Time: 5 Minutes

Could the Commons, and the activity of “Commoning”, be used to model legally sound processes for managing resources that, at the same time, promote local democratic decision-making, self-agency and meaningful relationships – the very things which are often cited as the failures of the market-based global economy we now live in?

Could Commoning help bring about a different legal understanding for how power could be distributed in a system, other than the understanding we have inherited through centuries of Property Law with its concepts of commodification and private exclusionary ownership at its foundation?  How could lawyers feel the edges of this future possibility and help shape it for future generations?

To help move into this future possibility, my proposal is for the co-creation of a “Creative Legal Commons”.  I invite interested people to sign up to a learning journey for co-creating the Creative Legal Commons together.  Email creativelegalcommon@gmail.com if, after reading this article, the sound of this journey excites you.

In the rest of this article, I describe what the Commons are, why they have been described as a way of human organising that go beyond State and Market control, and propose an initial definition for what a “Creative Legal Commons” could consist of.

What is the Commons and “Commoning”?

There is no one definition for a Commons but, in general, it can be described as a self-organised system comprising of dynamic social relationships for managing resources by a community, for the benefit of that community.  The resources of a Commons could be cultural knowledge or institutions (community buildings, community festivals, parks), digital commons (open source software, Wiki tools like Wikipedia, open source publishing) and global commons (oceans, biodiversity, atmosphere, fresh-water).

Importantly, there is no Commons without “Commoning”, the practices by which those in the community maintain or enhance their resources.  Customary norms and processes typically emerge through the practices which also help strengthen the community’s identity.

David Bollier is an author and activist who has written extensively about the Commons as an emerging contemporary movement that is laying the blueprint for a third way beyond the concept of Markets and State for governing people and planet.  His blog has extensive articles and links to books he has written on the subject (www.bollier.org).

The Sceptical LawyerHang on.  Isn’t the Commons a defunct idea, wasn’t that what the Agricultural Revolution was all about, getting rid of an inefficient system and replacing it with something that actually works?  And isn’t there something called “The Tragedy of the Commons” which basically demolishes the idea that the Commons could have anything new to say for contemporary life?

The Conscious LawyerI think what you’re referring to is an admittedly influential essay by Garrett Hardin, an ecologist who published his essay “The Tragedy of the Commons” in the journal “Science” in 1968.  In essence, Hardin sets out the economic argument that, if a field for pasture was shared in common by herdsmen for their cows, then the inexorable logic of individual herdsmen making rational economic decisions based on their self-interest would lead to the depletion of the shared resource.  Significantly, his argument was not based on any evidence but was a thought experiment to demonstrate a point he wanted to make.    

It was left to economist Elinor Ostrom to make a detailed study of actual existing commons and actual existing commoning practices.  Not only did she win the Nobel Prize for Economics for her research in 2009, she was also the first woman to ever win the prize.  Elinor Ostrom challenged the conventional wisdom that arises from the parable of the “Tragedy of the Commons”, that common resources can only be managed by Privatisation/Markets or Government Regulation if they are not to become exhausted.   Through research conducted on the management of pastures in Africa and irrigation systems in Nepal, she demonstrated how societies have developed diverse institutional arrangements for managing natural resources that avoid the collapse hypothesized by Hardin.  

 So, although the Commons as a way of managing pastures and grazing land was known in pre-Agricultural Revolution days in England and continue to exist in other countries, it has been ignored as a viable model for human organising in modern times.   I am not saying it is the Third Way, but I am saying that it is an idea worth testing in real situations with real people, and to experience how life is felt through that testing.  Does Commoning make you enjoy life more, does it fulfill certain needs that the Market based system just avoids or simply says don’t exist?  Come co-create the Creative Legal Commons and find out answers to these questions, and more!

Could the Commons be a way forward beyond Markets and State?

Taking inspiration from Bollier’s work, I believe it is important for lawyers to come together to help articulate and speculate on the “shape” of this emerging movement, and to help Commoners “elbow out” some room from the State and Markets which are crowding out the type of creativity which comes from the bottom up.

In order to do this, I believe lawyers need to first experience their own Commons and see whether that makes a difference to their own lives.  By creating their own Commons and experiencing how practices of Commoning can emerge through that; and experiencing any changes to the quality of their lived experience through such Commoning, they can then better understand how other types of Commons could be managed and stewarded as a new form of “ecological governance” (ecological in the sense that the governing comes from within and as part of the system, rather than as a separate form of authority imposed on the system).

Defining the Creative Legal Commons

Using the work of Bollier as a starting point, I would propose the following as a first working definition for the “Creative Legal Commons”:

A self-organised system by, and for, the community of lawyers who see themselves as having one foot in the legal community and another in any type of artistic community or endeavour (the “Creative Legal Commons or CLC”).  (“Artistic” to be defined widely at a future stage)

 The CLC shall use all reasonable endeavours to:

(i)        manage the “CLC Resources” (which will need identifying by the CLC but will be likely to  include its collective legal skills, artistic creativity and sensibilities, empathic capabilities, and its human and organizational networks) with minimal reliance on the State or Markets;

(ii)       steward the CLC Resources in such a way that it (a) helps define and clarify the values of the CLC, (b) sustains and/or enhances a community identity for the CLC, and (c) sustains and/or enhances the CLC Resources for future generations and/or to aid the regenerative capabilities of natural systems including human ones;

(iii)      generate vernacular practices through its activities which could evolve into customary practices for the self-regulation of the CLC and the CLC Resources and, through such movement, generate a dynamic “lawscape” to help shape the law for future generations;

(iv)      work to help establish or support Other Commons and/or other Commoning Communities in relation to their respective activities (“Other Commons” include but are not limited to artistic or cultural traditions,  the regenerative capacity of natural systems, civic buildings, the natural resource commons of the Earth (air, sea, soil, water, etc.)) ; and “Commoning Communities” means communities of people that are carrying out activities in relation to their resources which are substantially aligned with the criteria for the CLC);

(v)       help articulate and define the ways in which Commoning Communities are generating new types and loci for economic, ecological and cultural production outside of the State and Market machinery, in order to help shape the “lawscape” from the edge of the emerging future.

This proposed definition is a working one, it is an invitation to a doorway through which, should you decide to take the step, we can begin to collaborate and go on a learning journey together.


Making it Real – the practice of Commoning as a Learning Journey 

Having recently taken part in a cross-European collaboration for a project called “The Atlas of the Charters for the Urban Commons” (http://www.remixthecommons.org/en/2015/04/atlas-interactif-des-chartes-des-communs-urbains/), I believe a Commons is more likely to come alive if it has a physical manifestation to draw people together into the act of Commoning.  That physical manifestation could be a civic building or a park, or it could be about putting in place the legal conditions to allow creative social space to flourish.

If you know of somewhere where such space could be created, or feel enlivened by the prospect of a Creative Legal Commons and a CLC community, then lets take a step towards each other!  Please get in touch by writing to creativelegalcommons@gmail.com.

Mothiur Rahman trained at a top 20 City law firm before working for 7 years as a lawyer specialising in planning, environmental and public law related matters, with a focus on major infrastructure and public authorities.  He resigned in 2012 to begin an inquiry into finding work that engaged his passions for meaning and creativity which led to his co-founding the Community Chartering Network (www.communitychatering.org) and studying for a Masters in Ecological Design Thinking at Schumacher College in Devon.  He now works as Legal Strategist for The Flow Partnership which promotes “Natural Catchment Restoration” as an integrated method for alleviating floods and droughts whilst also seeking to strengthen community bonds (www.theflowpartnership.org). (25 November 2016)


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