What Harvard Law Students Need to Know About the Commons

Over the past twenty years in American politics, it has become increasingly clear that even conventional liberals (or “progressives”) are not going to produce the kinds of transformative change that our society really needs. Conventional public policy and law have been largely captured by the two major political parties, which themselves are both in tight collusion with business elites. I call it the Market/State duopoly, the incestuous alliance of the two great forms of power in our country, in a tacit collusion against genuine democratic participation and citizen control.

To be sure, we can’t simply walk away from politics, policy and law; they remain vital arenas of engagement. But our politics today is too structurally compromised to produce much significant change. As Senator Elizabeth Warren has said, the game is rigged. We live in a time of predatory business organizations, poorly performing government institutions, moribund democratic participation, and slow-motion ecological collapse.

So how to move forward?

I have come to see great value in seeing our political and legal challenges through the lens of the commons. One general way to understand the commons is as everything that we inherit or create together, which we must pass on, undiminished, to future generations. Our common wealth consists of countless resources that we share such as public lands, federally funded research, the atmosphere, the oceans, the airwaves used by broadcasters. The commons should be understood as a social and political system for managing that shared wealth, with an emphasis on self-governance, fairness and sustainability. The commons is also a worldview and ethic that is ancient as the human race but as new as the Internet.

If you mention “the commons” to someone today, the first idea that usually comes to mind is “the tragedy of the commons.” That idea was launched by biologist Garrett Hardin in the journal Science in 1968. In his now-famous essay, Hardin said, Imagine a pasture in which no individual farmer has a rational incentive to hold back his use of it. He declared that each individual farmer will put as many sheep on the pasture as possible, which will inevitably result in the over-exploitation and destruction of the pasture: the tragedy of the commons. Over the past two generations, economists and conservative ideologues elevated the “tragedy parable” into a cultural cliché because they saw it as a powerful way to promote private property rights and so-called free markets, and to fight government regulation.

But Hardin was not really describing a commons. He was describing an open-access regime that has no rules, boundaries or indeed no community. In fact, the situation he was describing – in which free riders can appropriate or damage resources at will — is more accurately a description of unfettered markets. You might say Hardin was describing the tragedy of the market.

The late Professor Elinor Ostrom of Indiana University powerfully rebutted the whole “tragedy of the commons” fable in her landmark 1990 book, Governing the Commons: The Evolution of Institutions for Collective Action. This book and hundreds of other case studies by Ostrom and her colleagues showed that it is entirely possible for communities to manage forests, fisheries, farmland, irrigation water, wild game and other natural resources as commons, without over-exploiting them.

How? People talk to each other, negotiate rules, build systems to identify and punish free riders, develop community norms, etc. An estimated two billion people around the world depend on these commons for their everyday survival – something that most economists ignore because this self-provisioning takes place outside of conventional markets. For her pioneering work in studying the role of cooperation in generating value, Ostrom won the Nobel Prize in Economics in 2009 – the first woman to win the award.

Another development in the 1990s – the emergence of the World Wide Web – persuaded me that the commons has a bright future. Within a few years after the Web went public, it became clear that cyberspace is a highly generative realm in which neither the state nor the market is the driving force. The Internet is really a massive hosting platform, a new lightweight infrastructure for cooperation that is fantastically generative, because it lets people self-organize their own commons.

By the early 2000s, it was clear that something very new and different had arrived: a new sector of commons-based peer production. This world consists of such powerful forces as free and open source software, which dominate the software world; the great Wikipedia project in dozens of languages and hundreds of wiki offshoots; the estimated 882 million documents and creative works using Creative Commons licenses; and the more than 10,000 open access scholarly journals that bypass the exploitations of commercial publishers. The rise of this Commons Sector simply cannot be explained by mainstream economics and its fictitious model of human beings as selfish, rational, utility-maximizing materialists.

Another noteworthy development in recent years has been the rise of an eclectic international movement based on the principles of commons. It consists of food activists trying to rebuild local agriculture; software programmers building free software and open source software; artists devoted to collaborative digital arts; and scientific communities sharing their research and data on open platforms. It can be seen among seed-sharing farmers in India practicing a kind of open-source agriculture, and among urban activists in Europe who demand a “right to the city” for citizens, as opposed to developers.

The commons movement also consists of many people who are fighting the privatization and commodification of their shared wealth by the “free market.” The “enclosure of the commons” is arguably one of the core dynamics of neoliberal capitalism – to collude with the state to take and marketize the people’s shared resources, whether they be elements of nature, culture and information.

In the US, we have seen timber companies seize great swaths of forests and wilderness that belong to the American people….federal drug research for which we taxpayers have paid billions of dollars, only to see Big Pharma claim monopoly patents….and the corporate privatization of public universities through “partnerships” that essentially annex publicly funded scientific research. Most recently, we have seen the fierce attempts by telecom and cable companies to seize control over access to the Internet in order to convert that great commons into a closed marketplace. Enclosures amount to a massive theft and dispossession of common wealth for private gain.

Market enclosures have provoked the rise of a large movement of commoners seeking to reclaim what is theirs. They include indigenous peoples trying to preserve their ethnobotanical knowledge from the biopiracy of big pharmaceutical and ag-biotech companies. Subsistence farmers and fishers whose livelihoods are being destroyed by industrial harvesting. Latin Americans fighting the neo-extractivist agenda of multinational companies plundering oil, minerals and genetic knowledge.

A whole other realm of commoners is engaged in the creative construction of new commons. You can see them in localities that use alternative currencies, such as the Bangla-Pesa in Kenya, which has made it possible for poor people in slum neighborhoods to exchange value with each other. You see the commons in the explosion of open design and manufacturing – design that is globally shared but manufacturing that is local, inexpensive, accessible to anyone, and modular, in the style of open source software. This movement has produced the Wikispeed car that gets 100 miles per gallon of fuel….the Farm Hack community that has produced dozens of pieces of affordable farm equipment…. and specialized open-source prosthetic limbs that major medical suppliers don’t have the creativity or profit incentive to make.

What unites these highly diverse communities? They are all asserting a different universe of value. They all share a basic commitment to production for use, not market exchange. They are asserting the right of communities to participate in making the rules that govern themselves, and the importance of fairness and transparency in governance. As commoners, they assert the responsibility to act as long-term stewards of resources.

In the 1980s, when Margaret Thatcher was insisting that Great Britain adopt the neoliberal agenda of privatization, deregulation, budget cuts and new privileges for capital, she insisted, as the European Union now insists to the Greeks, “There is no alternative!” The phrase that was later shortened to its acronym, TINA.

Looking around at contemporary commons and the many companion movements bursting out all over, it is clear that the more accurate acronym is TAPAS – “There are plenty of alternatives!” The only question is whether we have the eyes to see them and the courage to commit to them.

The great British critic Raymond Williams put it well: “To be truly radical is to make hope possible rather than despair convincing.” That is the real challenge that we face, to overcome cynicism and hopelessness, and to quicken the many serious alternatives awaiting our creativity.

David Bollier is cofounder of the Commons Strategies Group, cofounder of Public Knowledge, the Washington public-interest group, and author of Think Like a Commoner. He blogs at Bollier.org and lives in Amherst, Massachusetts.