Get the best of Commons Magazine — FREE!


Reprinted from

September 20, 2013

A Legal Blueprint for Our Ecological Survival

A new book links human rights, environmental rights and the law of the commons

Former OTC senior fellow David Bollier and University of Iowa law professor Burns H. Weston recently published Green Governance (Cambridge University Press) a groundbreaking book on merging environmental rights and commons thinking could create a new paradigm of governance for the 21st Century. Gus Speth, professor at the Vermont Law School and former dean of the Yale School of Forestry and Environmental Studies, declares, “We must take these ideas very seriously, indeed.”

Here is a review of the book from ZNet by Jeremy Brecher, a historian and leading commentator about the commons. He is the author of more than a dozen books on labor and social movements. His most recent book, Save the Humans? Common Preservation in Action, published by Paradigm Publishers, addresses how social movements make social change. He currently works with the “Labor Network for Sustainability”:http://www.labor4sustainability.org/.

The notorious “tragedy of the commons,” in which shared ownership inevitably tempts individuals to over-utilize resources to the point of destroying them, has been a stock argument for the superiority of private property and market exchange over property held in common. Green Governance by Burns H. Weston and David Bollier boldly argues that, on the contrary, the ancient institution of the commons may help us counteract the “tragedy of the market” – the ways in which unbridled pursuit of private accumulation is abusing human rights and destroying our environment.

Discussion of the commons has proliferated as market and state failures have grown ever more apparent. But what are commons, and what makes them different from markets and states?

Markets, states, and commons are all ways to coordinate the activity of different individuals.1 In a market system, the wealth created by nature and past and present labor is held as the private property of private individuals and companies. They exchange the products they produce in the market. If each thereby maximizes their own gain, the result will also allegedly maximize the gain of all. Coordination is decentralized and based on after-the-fact feedback.

In a system based on authority to command, such as the state, productive wealth is the property of an individual or collective ruler. The ruler makes a plan, assigns roles in fulfilling it, and distributes the product. Coordination under such a system is planned and centralized.

The commons represents an often-neglected third type of coordination system found all over the world and in many different eras. It is based on shared resources that are neither the private property of separate owners nor the property of a single public entity. Rather, the participants in a commons serve collectively as stewards for managing shared resources, either directly or through delegation of their rights and responsibilities. Commons are governed by what Weston and Bollier call “vernacular law,” self-organized common property arrangements that are usually “unofficial norms, institutions, and procedures that a peer community devises to manage community resources on its own.” Commons have the authority and the duty to assign use rights for commonly-owned resources, make rules for their use, sanction violations of those rules, and hold the common resources in trust for future generations.2

The commons as an institution was probably ubiquitous among early human communities. The 535 C.E. Code of Justinian defined “res communes”: “By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.” The right of fishing in the sea from the shore “belongs to all men.” The Justinian code distinguished “res communes” from “res publicae,” things which belonged to the state. In 1217, the King of England signed the Charter of the Forest, which protected commoners’ right to pasturage (grazing cattle), piscary (fishing), tubary (cutting turf), estovers (cutting forest trees for houses), and gleaning (scavenging in harvested fields). The Charter of the Forest followed the famous Magna Carta by two years and was soon incorporated into it; it remained in effect for eight hundred years. Common rights were “stinted” — regulated by the community; accounts of commons are full of rules like the one under which a seventeenth-century English farmer might have the right to cut rushes on the common, but only between Christmas and Candlemas. Today, an estimated two billion people use forests, fisheries, and other natural resource commons for their subsistence.

Commons are based on the often ignored truth that “property” is not a single, unitary thing, but rather what modern property lawyers refer to as a “bundle of rights.” Even under private property regimes, you may “own” a piece of land, but there are many rights related to that land, many of which you may not control. Local, state, and national governments have a right to tax you; your neighbors have a right to block nuisances; local and state agencies have the right to tell you what kind of water and septic systems you must have and where on the property you may build; the police may enter your property in pursuit of a criminal suspect.

In a commons, the “bundle of rights” to shared property is distributed by complex, negotiated rules worked out over time by the participants. “Use rights” may entitle an individual, a family, or a defined sub-community to gather firewood or use a path. “Usufruct rights” may entitle an individual or the community as a whole to a share of what is produced. “Inheritance rights” may provide that upon the death of a particular person their use rights return to the community, but that their children are entitled to rights to the common on the same basis as others.

Many economists have treated the commons as an economic system that was bound to fail because each individual would have an incentive to put as many ducks on the green or catch as many fish in the ocean as they could, thus depleting the resource.3 That indeed might be the case where individuals can help themselves to as much as they like without rules or limits – as in a Commons Pool Resource (CPR) without commons governance. But as social scientists began to study actual commons around the world, they discovered that in practice they operate through governance systems with rules that preserve their assets for future use and even for future generations – something that unregulated markets often fail to do.

In 1990, Indiana University professor Elinor Ostrom published her book Governing the Commons which explained this apparently paradoxical capacity. An effective commons is grounded in a community of users who are able to conduct or oversee its management. It has defined boundaries, norms, rules, and sanctions against violators and free riders. It allocates access and use rights. It allows cooperative arrangements worked out by members within the limits of the rules. Where the resources of a commons are too large or too dispersed to be managed by a face-to-face community, there are often multiple levels of governance, in effect a higher-level commons composed of lower-level commons. Such multi-level commons follow the principle of “subsidiarity,” in which democratic participation is maximized by making decisions at the lowest practical level. In 2009 Ostrom was awarded the Nobel Prize in economics for this work.

Meanwhile, there has been a reinvention of the commons for modern purposes. Land trusts, organizations that holds assets for the benefit of the public or for purposes distinct from the interests of the trustees who govern it, are commons. Indeed, their trustees are bound by a fiduciary duty to serve those interests and purposes, not their own. The first modern land trust, the Trustees of the Reservations, was formed in 1891 as a non-profit organization devoted to preserving natural and historical places in Massachusetts. Such organizations have proliferated over the past 25 years, with more than 1,500 conservation land trusts in the US covering more than ten million acres. They are based on rules designed to protect natural and historic assets forever and to allow public access to them in ways consistent with their long-term preservation.

Community land trusts apply the same concept for housing development and other social purposes rather than conservation. Land is owned by a land trust with the public purpose of providing permanently affordable housing. Housing is built or purchased by individuals or cooperatives but the land remains the property of the trust. The residents normally acquire limited equity in their homes. They may sell or pass on their homes under various restrictions, but the land remains the property of the trust. The result is that the price of the home to the next purchaser is insulated from the vagaries of the real estate market. There are more than one hundred such community land trusts in more than 30 states.4

Another wave of new commons emerged along with the Internet. In 1986, the Free Software Foundation developed the General Public License, a license issued under copyright law providing that designated software code cannot be appropriated as private property and can forever be copied, used, and modified by anyone – thus establishing it as the common property of all. The idea was extended to all kinds of intellectual property by the Creative Commons (CC), a non-profit organization that provides a range of free, standardized public licenses that let copyright holders stipulate how their works may be copied, modified, and shared. It is estimated that there are now 400 million artifacts available on line under Creative Commons protections. Wikipedia and Linux are monuments to the new Internet commons.

Weston and Bollier are deeply concerned that “free-market economics” has given rise to “a legal apparatus and political system that elevates territorial sovereignty and material accumulation over shared stewardship of the natural environment.” The result is destruction of the natural environment in the pursuit of maximum private profit and the consequent abuse of the human right to a livable environment now and for future generations. This result can be seen in the inability of what they call the “state/market” symbiosis embodied in neoliberal principles to forestall the devastating effects of climate change and other global ecological disasters.

They argue that an expanding Commons Sector can help provide an alternative to both state and market. It would provide vernacular law governance dedicated to equitable and sustainable use of resources — what they call “green governance.” Instead of private owners free to do things with their property that harm the wider community and environment, or governmental authorities imposing rigid rules and often arbitrary commands, the principles of human rights and environmental sustainability would be built into the basic rules governing the commons and would be applied by people who have a direct interest in their protection.

Weston and Bollier are far from proposing that the commons replace either market or state. Rather, they advocate that governments adopt policies designed to promote the formation and growth of commons. Governments can charter and provide incentives for commons much as they have done for corporations over the past two centuries.

Where appropriate, governments can even serve as trustees for commons, protecting their rights while allowing them to develop their own vernacular arrangements. In New Mexico, for example, state law sanctions a community irrigation system known as the acequias that for centuries has protected and distributed scarce water supplies. (Unfortunately, governments have more frequently stolen the assets of commons, as notoriously in the destruction of the Mexican ejidos—communal farm plots—under NAFTA).

From the Justinian Code’s protection of “res communes,” governments have long served as trustees for rights held in common. In American law this role is defined by the “public trust doctrine” under which the state serves as public trustee on behalf of present and future generations of all people or a particular group. As Weston and Bollier explain, “the unorganized public has sovereign ownership interests, over and above those of the state itself.” Even if the state holds title, the public is the “beneficial owner.” As trustee, the state must exercise “the highest duty of care,” including ensuring that the common property not be sold or transferred to other parties.

International law recognizes resource domains and geographical areas that lie outside of the political reach of any one nation state – specifically, the high seas, the atmosphere, Antarctica, and outer space – as “global commons” governed by the principle that they are “the common heritage of humankind.”5 But there has been no effective vehicle for asserting our right not to have our common environment destroyed.

Recently, however, the Atmospheric Trust Litigation Project has brought suit on behalf of young people in all fifty US states to require the state and Federal governments to fulfill their obligation to protect the atmosphere as a common property.6 The suit argues that the atmosphere belongs in common to all people of current and future generations. Governments serve them as trustees but do not themselves own the atmosphere. The suits seeks declarative judgment applying the public trust doctrine to the earth’s atmosphere and asks the courts to issue injunctions ordering federal and state governments to reduce carbon emissions to fulfill their duty to protect it. Similar suits are projected for countries around the world. In 2012, a federal district court ordered that a case brought in New Mexico go forward. Opening arguments were heard June 26, 2013. [7]

A quatrain from the time of the private “enclosure” of the English commons proclaimed,

“The law condemns the man or woman

who steals the goose from off the common

But turns the greater felon loose

who steals the common from the goose.”

From the resistance to the enclosure of the English commons to the struggles of indigenous peoples around the world to preserve their common rights against colonial and corporate plunder, people have fought to protect their commons, even when it meant disobeying the sheriff, the policeman, or whoever else might illegitimately claim to represent the law. Green Governance provides a wealth of information and insight for understanding the legal and historical foundations of the commons, the rights and responsibilities of participants, and the role it might play in our future political economy.


1 On economic systems as means of coordination, see Charles Lindblom, Politics and Markets (New York: Basic Books, 1997). For the trichotomy of state/market/network, see Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1988). Commons governance is a form of network coordination based on common property rights in a resource.

2 Commons are most often used to manage what economists call common-pool resources (CPRs) that are difficult or expensive to prevent others from using, and which therefore are hard to treat as private property. CPRs are likely to be good candidates for governance as commons, but many CPRs are not governed as commons and commons principles can be applied to resources that are not CPRs.

3 Other problems that have cropped up with commons include domination by gerontocracy or cliques; slavish adherence to custom, including customs that embody sexist and other unjust practices; intractable conflict; pursuit of group interest of commons members against broader social and environmental interests; and vulnerability to “demutualization” efforts to capture accumulated value for individual gain.

4 Cooperatives also involve shared property that is owned by a collective and governed by collectively formulated rules. For case studies of community land trusts and cooperatives, see Jeremy Brecher, Banded Together: Economic Democratization in the Brass Valley (Urbana, IL: University of Illinois Press, 2011.) Public policy can support the accumulation of common property by coops, as in the Italian laws governing coops’ “indivisible reserves.” See David Thompson, Building the Future Cooperative Grocer Network (November-December, 2005)

5 United Nations Environment Program, Division of Environmental Law and Conventions, IEG of the Global Commons: Background found here.

6 See website of the youth plaintiffs or more on the Atmospheric Trust Litigation Project.

For the legal background see Mary Christina Wood Public Trust Doctrine Around the World and her forthcoming book Nature’s Trust. The litigation project can be found here Our Children’s Trust coordinates the project.

7 Julie Cart, “U.S.’s First Atmospheric Trust Litigation Case to Begin in New Mexico,” Los Angeles Times, June 25, 2013.