A brief history of the commons offers instructive lesson.
| by Kathryn Milun
When you hold a mirror up to another mirror and look at yourself, you experience the phenomenon of infinite regress. Your face repeats and recedes until it is indistinguishable from a speck on the glass. Losing yourself in an experience of limitlessness can be an important exercise in some mystical traditions. When you return to yourself you have a new and more humble perspective on life. But when you experience boundlessness through the trick of mirrors, the result is ungrounding. You are like a character within a story, within a story, within a story, within a story… Pretty soon you have achieved such cognitive dissonance that only a headache can ensue.
Digital technologies like the internet are similarly tricky. Should we look to their theoretically infinite, open access pathways as a metaphor for complex, globally connected democratic commons, or should we be more concerned about the ways they introduce infinity into our finite lives and modes of social organization?
Infinite extension with regard to commons is an idea attached to open access domains. The seas were considered unrestricted, open access commons in international law up until many of the world?s fisheries collapsed. After the advent of satellite technology, outer space was described as a limitless commons domain, a “final frontier.” If it were not for decades of outmoded orbiting space debris we might still agree on that today. The digitally networked environment appears to have a similar boundless quality. Many suggest that it should be governed like roadways on which all are free to travel as long as they have the wherewithal to purchase the necessary equipment. (But the problems of landfills piled with obsolete equipment or a dangerously sped up life remain with us whether we are on the urban freeway or the digital highway.)
This is by no means an argument, á la Garret Hardin, for enclosure of tragically free commons. Rather, I am asking where we ever got the idea that these commons domains were of infinite extension in the first place. What is the idea of infinity doing here? Why do we even think of limitlessness when we think of commons?
The idea of limitlessness with regard to commons is a very modern (and I think Western) one. It arose when Europeans extended their property systems into global domains. The first global domain to be described as a commons in modern international law was the high seas. In his 17th century work Mare Liberum, a treatise on the law of the open seas, the Dutch jurist Hugo Grotius aimed to intervene in the way European states were dividing up the oceans as their own territorial waters. Beginning in 1494 the Pope, like Harold with his purple crayon, had declared the earth and its oceans divided into two hemispheres, one belonging to Spain the other to Portugal. Soon after, the seafaring English, French and Dutch all start claiming parts of the oceans as their own. Grotius argued that since the seas were basically ungovernable (therefore unpossessible and belonging to nobody – res nullius he called them because, as a cosmopolitan, he was writing in Latin), they should become, by default, res communis, a homogenous zone of unrestricted open access to everyone.
It is important to consider that when Grotius sought to protect the high seas from enclosure by arguing that it was a commons, he did not take the vocabulary of commons available to him from the diverse village commons he might have seen around him. Those common field systems – where persons were granted a right in common to take or use some portion or product of the soil owned by the landlord – were systems with specific restrictions, quite different than the open access, unrestricted high seas Grotius was defining. (Furthermore, archaeological and historical work tells us that, in early modern Europe, the rights in common were not something granted by a generous landlord. They were the residue of rights that were much more extensive, rights that in all probability are older than the modern conception of private property.)
For Grotius, on the other hand, a global commons regime based in the open seas required a new notion of [user] rights in unrestricted domains of unbelonging. The seas belong to no one, Grotius said. And that is the first step in their becoming res communis, something that belongs to everyone. First we must agree that they belong to no one, and then we can say that they belong to everyone.
Grotius’ extension of the Roman doctrines of res nullius and res communis into the seas left out an important doctrine of Roman property that balances the cosmological system of Roman law: the doctrine of res divini juris: (things/spaces of divine jurisdiction) things “unownable” because of their divine or sacred status. In Roman law, ungovernable domains of infinite extension are full of gods and stories about fate, wrath and sometimes divine justice. By the beginning of the modern period, however, extensive domains became full of emptiness. And that emptiness was the necessary condition to their being legitimately reclaimed as either commons or private property.
Thus 17th century Englishmen successfully claimed the Americas were vacuum Domicilium, empty domains. It is important to note that Domicilium vacantis is an argument of neoclassical economic theory that viewed Nature as a God-given open access domain. As long as the free market had open access to what it saw as an unlimited supply of nature’s resources, the logic goes, it would balance the interests of social welfare. Domicilium vacantis uses the same spatial logic as that other well known argument by the 17th-century political philosopher John Locke, namely the idea that all human beings start out in life as a tabula rasa, a blank slate upon which society could later write the codes of appropriate (i.e. European) personhood.
Empty, limitless space was a kind of geographical imaginary, an image-idea or metaphor that floated through a good deal of early modern philosophical and legal thinking. It is a hidden organizer behind explanations of why European conventions of civility and Reason could successfully be inscribed on non-European minds. But it is overtly present in the doctrine of terra nullius, the legal doctrine of “lands belonging to nobody” invoked by Spain and other colonizers to justify the taking of indigenous lands. (Yes, people inhabit those lands, the argument goes, but they do not organize themselves in ways that are recognizable [to we Europeans] as sovereign.)
We know that the metaphor of a space emptied of all recognizable social relations furthered the colonial enterprise. But we are less aware that this very same spatial imaginary underwrote the global commons, beginning in the early law of the seas and extending later into outer space. How does this spatial thinking continue in domains like the internet and other open access domains of global dimension?
International relations scholars say that we shouldn’t bother anymore with the antiquated Roman terminology of res communis and res nullius when discussing the global commons. They offer the more rationalized vocabulary of “common pool resources” and “common property regimes” where we can speak of a system’s inherent properties of exclusion and subtractibility. But our understanding of commons requires more than just economic models. They also involve cultural assumptions carried in metaphors, especially spatial metaphors. Before throwing out the old Latin concepts (with their clear reminders of the rhetorical image of emptied space) we should examine their residual persistence in our current understanding of commons.
So where did Garret Hardin get the notion that commons are free-for-all open access domains doomed to tragic exhaustion of resources? I would say that his thinking was influenced by the idea of global commons developed by 17th-century Europeans whose new navigational technologies opened up the high seas to intensive trade routes. It is no coincidence that Grotius’ ideas about the seas as global commons did not become codified in international law until much later in the late 19th century when the second wave of colonial expansion linked the colonies to the European mode of industrial production and capitalism overtook peasant and indigenous small scale economies. Suddenly, as if a large cultural paradigm had abruptly made sense of hitherto disconnected phenomena, Grotius’ idea of the seas as a global commons took hold in international law. Just at the moment when local commons tenure systems are being dismantled by colonial administrations the world over, European nations recognize the seas as their first global commons.
There is much more to be said about global commons domains, their relations to a global economic order based on limitless growth, their legacy of emptied space, and their quirky potential as emergent models of cosmopolitan, global democracy following the digitally networked, open access commons. (And I have tried to do so in my forthcoming book, The Political Uncommons.)
But before we celebrate the experience of limitlessness in globally interconnected commons, we might consider two lessons from the current environmental crisis and the history of colonization. First, the market economy has deskilled us for a life attuned to the earth’s limits. And second, indigenous peoples attuned to their history have used legal and cultural skills to recode a terra nullius earth.
We too can reclaim commons from a res nullius earth. But to avoid falling into an infinite regress, we need to carefully consider how open access commons fit into the larger, historical picture of commons in modernity.