By Nwaodu Lawrence Chukwuemeka
MON, JANUARY 30 2017-A near-forgotten 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. Thus commoners formally enjoyed the 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 in their defense of 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, ritualistically affirming that the basic human rights of commoners were indeed being upheld. Of course, a piece of paper has proved to be of only 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 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 trampled 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 rights 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 Eclipse of the Law of the Commons:
“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, transforming 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-faireorder, and indeed, many of the early socialistic or 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 has been another means to compensate for the problems introduced by “free markets,” namely the displacement of costs and risks onto 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 multinational 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 — 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 chronic social and environmental abuses 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 commons state trustee commons.
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, even these goals are seen by most governments as an unacceptable burden on capital and corporations, and as a drag on economic growth.
To be sure, many grassroots movements have developed a modest independent sector of cooperatives and mutual association. Unfortunately, these alternative provisioning systems have generally failed to reach a meaningful scale. Similarly, 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. In addition, regulation is generally dominated by legal proceduralism and scientific expertise, so that the views of local residents or individual consumers do not carry as much weight in decision-making as those of lawyers, credentialed technical experts and corporate officials. Commoners often find themselves delegitimized as participants in the governance process, or simply unable to afford the costs of participating.
In practice, the very institutionalisation 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). It is no surprise that the success of commoners in developing adequate protections for themselves and their resources through the legal systems of the nation-state has been highly irregular and limited.
Some of the most astute commentators on these problems are autonomous Marxists such as Massimo De Angelis, editor of The Commoner website; George Caffentzis, founder of the Midnight Notes Collective; Silvia Federici, an 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 them as commodities whose value is identical with their price.
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 and civic ties needed to participate in market exchanges? Can a market-based society survive without the commons?
Nwaodu Lawrence Chukwuemeka (Ideas Exchange Consulting)|nwaodu.lawrence@hotmail.co.uk (07066375847).
