Tuesday, 8 January 2013

Essay on the Commons for law course

Is Enclosure of the Commons Complete?

The enclosure of the commons – originally understood as the ‘subdivision and fencing of common land into individual plots’[1] – has moved from a discussion primarily concerning land and land-ownership to a broader debate (and various political struggles) concerning multiple types of ‘global commons’, everything from social, cultural and intellectual commons (cultures, knowledge, ideas, shared online resources) to DNA, natural features (rivers, forests) and the atmosphere we share. The contemporary resistance to various types of enclosure, whether real or virtual, would point to the idea that enclosures (or privatisation or ‘land-grab’) are not yet ‘complete’ because resources and access are still a matter of real contestation in many places. Yet for others, battling for the commons is a lost cause, not only because the commons themselves are doomed to fail because ‘rational’ self-interest will lead to the depletion of shared resources,[2] but because the battle has been ‘won’, and not by the commoners, but by the landowners, privateers, big business, the 1% (there are left and right versions of this position – the former depressed, defeated, the other gleeful and self-interested).

The difficulty of pinning down exactly what ‘the commons’ refers to complicates matters: are there new commons (for example, shared internet resources) and new enclosures, or should we restrict usage of ‘the commons’/enclosures to land alone? What does the verb form – ‘commoning’ – mean? Can we engage in forms of commoning without having access to the commons, as classically understood? Recent attempts to resurrect the radical dimensions of the Magna Carta, to put commons back on the constitutional agenda and to reconnect the links between civil liberties and the commons – most notably in Peter Linebaugh’s 2004 The Magna Carta Manifesto – demand that the commons – ‘the theory that vests all property in the community and organises labour for the common benefit of all’ – must exist in both juridical forms and day-to-day material reality.[3] This essay will argue that although enclosure and private property are dominant regimes, reflected in the legal forms that protect them, the commons understood in a broad sense remain a site of contestation across the planet, including in legal forms, and that to resurrect the seemingly-archaic term is to acknowledge an ongoing struggle over everything from land to ideas. As Silvia Federici puts it: ‘Ironically, the new enclosures have demonstrated that not only the common has not vanished, but also new forms of social cooperation are constantly being produced, including in areas of life where none previously existed like, for example, the internet’.[4] This essay will first attempt to argue for a broad definition of the commons and commoning, understood both historically and geographically, before ultimately arguing, with reference to various Landless Peoples movements, that the battle against enclosure is not yet over, and that the struggle to protect traditional land rights is best seen on a continuum with the desire and demand for creative and intellectual forms of common knowledge to be understood and managed as shared resources as, for example, online.

Commons/Commoning: A Broad Definition

What does ‘the commons’ mean? Definitions abound: ‘resources that [are] jointly used and managed by a community of people’,[5] ‘The tangible assets of the commons include the vast quantities of oil, minerals, timber, grasslands, and other natural resources on public lands, as well as the broadcast airwaves and such public facilities as parks, stadiums, and civic institutions’,[6] ‘a property not subject to private ownership, regardless of the type of management employed’.[7] A lengthier and more precise definition is given by George Caffentzis:


Commons require at least three elements for their constitution: (a) a common-pool resource (i.e., a resource that combines “difficult excludability” and “high subtractibility”), (b) a set of people who desire continuous, long-term access to the resource (commoners), and (c) a set of rules and procedures that commoners use to manage the resource.[8]


What is clear from all careful definitions of the commons is that, contrary to Garret Hardin’s claim that ‘[e]ach man is locked into a system that compels him to increase his herd without limit--in a world that is limited’[9], commons of any kind are not simply resources that anyone can use in whatever way they choose, leading to depletion (and Hardin’s supposed ‘tragedy’), but carefully managed assets that are shared and overseen in such a way that exploitation and resource-stripping is minimised or absent. Linebaugh is careful to avoid presenting the commons as a kind of pre-existing ‘lump’ of readily accessible things; ‘To speak of the commons as if it were a natural resource is misleading at best and dangerous at worst – the commons is an activity and, if anything, it expresses relationships in society that are inseparable from relations to nature.’[10] So if we understand the commons as a verb – commoning – rather than a noun we get a clearer picture of the contestation surrounding the term, both conceptually and as in practice. As E P Thompson points out, to cite just one example: ‘there cannot be a forest or chase in the country which did not have some dramatic episode of conflict over common right in the eighteenth century’.[11]

Thompson’s retelling of the conflict surrounding common rights alerts us to the constant fight to protect access to shared resources, and to resist private ownership (although as Simon Fairlie reminds us, the king or the Lord of the Manor might have ‘owned’ an estate in one sense of the word, ‘but the peasant enjoyed all sorts of so-called “usufructory” rights’[12]). As Fairlie also points out, the idea of private ownership as exclusive ownership, which dominates both the legal and everyday understanding of property today is a relatively modern idea, only a few hundred years old.[13] It is also a history that is primarily violent before it was ‘legal’. Karl Marx tells the story of the ‘expropriation of the agricultural population from the land’ in Capital, vol. 1 (1867) where he describes the transition from the open field system, to the conversion of arable land to sheep farming at the behest of wealthy landowners to the complete dispossession of commoners from land previously held in common:

The “glorious Revolution” brought into power … the landlord and capitalist appropriators of surplus-value. They inaugurated the new era by practising on a colossal scale thefts of state lands, thefts that had been hitherto managed more modestly. These estates were given away, sold at a ridiculous figure, or even annexed to private estates by direct seizure. All this happened without the slightest observation of legal etiquette.[14]

Marx argues that the legal formalities for the robbery of land actually came into force long after the seizure and annexation of the land itself (it is only in the 18th century that ‘the law itself becomes now the instrument of the theft of the people’s land’). What Marx’s analysis points to, apart from the sheer violence of creating landless populations (i.e. the burgeoning industrial proletariat) and depriving commoners from access to food and the means of sustenance, is a perhaps surprising disconnect between law and common rights. While there are specific ‘protections’ for practices of commoning in the Magna Carta and the Charter of the Forest, the ‘rights’ afforded to commoners (or historically, removed from them) are rarely, if ever, bestowed from the top down, but are rather undermined via the implicit consent of the state (turning a blind eye when landlords kick people off their land, or, by modern analogy, permitting multinationals to seize land and resources from indigenous populations while providing military protection to the companies against the people). Thus as Linebaugh and Marx imply, the restoration of common rights cannot simply be a matter of petitioning for legal reform, but must involve an active resistance to having these rights taken away in the first place, as well as a fight to recover them. Common rights do not therefore have the same kind of structure or meaning as human rights as such, or other rights enshrined universally by the state. Linebaugh is clear to differentiate common rights from human rights because, amongst other things, ‘being independent of the state, commoning is independent also of the temporality of the law and state’ and further, they ‘inhere in a particular praxis of field, upland, marsh, coast’.[15]

But there are rare resources in the law itself, at least historically. The Magna Carta, which remains on the statute books (although only three clauses – the freedom of the English Church, the “ancient liberties” of the City of London and a right to due process – are still on the books), alongside the Charter of the Forest, the longest statue in force in England (from 1217-1971, before being superseded by the Wild Creatures and Forest Laws Act 1971), give us a strong image of these ‘common rights’ and, although much of the language and the actions seem archaic (e.g. ‘Clause 3: All woods … shall be forthwith disafforested’ (i.e. such that forests are counted as ordinary land and not under royal jurisdiction)), there is clear evidence that certain customs are to be protected by these documents. Widows’ estovers, in the broadest sense ‘necessaries allowed by law’;[16] pannage, the right to pasture pigs in the forest and the grant to all cities, boroughs, ports and towns to ‘enjoy their liberties and free customs’ are all clear signs of the protection of common rights and customs central to these two documents. Yet the law has put in place so many other restrictions on the commons and commoning (between 1750 and 1850 there were approximately 4,000 Enclosure Acts of Parliament[17]) that it cannot in any sense be said to be an obvious first port of call to seek recourse for the protection of the commons. It is interesting to ask, however, whether legally-enforced reparations could go some way to ameliorating the damage done to ordinary people, through colonialism and the invention of private property.  

To return to the present day, with the destruction of the welfare state, we are thrown into a situation where the state has abdicated its role as a universal provider of provisions. As Aditya Chakrabortty puts it only today in an ‘obituary’ of the welfare state:

The proximate cause of death was a change in child benefit from being available to all to a means-tested entitlement. That marked the end of one of the last remaining universal benefits, in turn causing a fatal injury to Welfare.[18]

The decline of the state, and, simultaneously, of ‘the statist model of revolution that for decades had sapped the efforts of radical movements to build an alternative to capitalism’,[19] we are thrust back into a world where people directly confront rapacious private property-owners, and where the law is rarely able (or willing) to prevent yet further expropriation. The enclosures that began with hedgerows and landowners have expanded to encompass everything that can be owned and sold. As Federici puts it: ‘The ‘new enclosures’ have also made visible a world of communal properties and relations that many had believed to be extinct or had not valued until threatened with privatization’.[20]

The Enclosing of the Commons Today

Simon Fairlie suggests that ‘over the last three decades, the enclosure debate has been swept up in a broader discourse on the nature of common property of any kind’,[21] a claim reinforced by the many attempts to expand the notion of the commons into new realms – computer technology, DNA, shared information/knowledge. But if the notion of the nature of common property has re-emerged and expanded, what are the ‘new enclosures’ that Federici mentions? In a sense, these are everywhere, from the private ownership of water, gas and other fuels, to online paywall barriers behind which stands contemporary research. Even more alarmingly, the language of the commons has itself been enclosed with the World Bank and other global bodies have mobilised the language and the rhetoric of the commons in order to further marketise and privatise parts of the world:

Under the guise of protecting biodiversity and conserving the global commons, the Bank has turned rain forests into ecological reserves, has expelled the populations that for centuries had drawn their sustenance from them, while ensuring access to those who can pay, for instance, through eco-tourism.[22]   

So there is a real danger of the resurrection of the discourse of the commons being picked up by those who would precisely use its ideas for anti-commoning ends. Federici points instead to small-scale forms of subsistence resistance, urban gardens, for example, as modes of commoning that resist commericalisation. Similarly, she sees ‘money commons’, existing in Cambodia and Senegal, among other places, as ‘autonomous, self-managed, womenmade banking systems that provide cash to individuals or groups that have no access to banks, working purely on a basis of trust’.[23] Federici’s reclaiming of the commons against the aggression and violence of the new enclosures is promising, but remains somewhat small-scale (although it should be noted that she ultimately calls for a complete transformation in the way in which social reproduction and gender relations are carried out, and adds that ‘[n]o common is possible unless we refuse to base our life and our reproduction on the suffering of others, unless we refuse to see ourselves as separate from them’[24]). Are these proposals enough to oppose the might of the military-industrial complex, multinational corporations, police, armies and governments? As Linebaugh points out, there are ‘active movements of human commoning’ and worldwide demands to share wealth and safeguard common resources on every continent.[25] There is similarly nothing ‘natural’ about private property, and as the Occupy movement has repeatedly pointed out in recent months, the 1% very much do not operate in the interests of the other 99% who have a lot more at stake if companies are to continue putting up the price of resources such as gas and electricity, continue to pollute the environment and kick people off land they hold in common.  

But to play devil’s advocate with reference to the title of this essay, what if it were the case that the enclosure of the commons was, in a certain sense, complete? What if the regime of private property and privitisation had colonised almost everything, and was about to complete this appropriation for good? Antonio Tricarico has recently suggested that the ‘financialisation of nature’ should be regarded as ‘more than just a further stage in the commodification or privatisation of the commons. It represents a systemic transformation in the very structure of capitalism’.[26] What does he mean? Tricarcio suggests that emerging forms of financial speculation, particularly in the wake of the recent economic crisis, have started to speculate on products and that there is a move from the commodification of nature (the history of enclosures, in other words) to its financialisation:  

Holding (for example) a tonne of corn had never, until as recently as the beginning of the past decade, been able to produce a revenue stream or rent. This is now possible through financial engineering. This is not just paper money or speculation on virtual markets. Financial markets are penetrating deeper and deeper into the real economy as a response to the financial crisis, so that speculative capital is being structurally intertwined with productive capital, in this case commodities and natural resources. 

The financialisation of nature could happen despite, or perhaps because, of the economic crisis, as speculation could take place on already existing resources (as for example, with carbon trading, which speculates on emissions). What would a form of resistance to these new kinds of financial enclosures look like? It is hard to imagine. Discussions of the commons have pointed to the need to r’eclaim’ the commons, and to think more coherently about subsistence, but financialisation appears to add another layer of complexity and struggle to already very difficult battles. If it is possible to make money almost purely from speculating on risk, what form of anti-enclosure would be possible or appropriate? How can we reclaim risk?

Some have placed their optimism in new forms of the commons in the virtual arena, with even a revolutionary potential being accorded to the internet: ‘The Internet represents perhaps the single most revolutionary element of the Information Age. At present, it allows anyone with computer access to communicate with anyone else, without being mediated by a corporate media outlet’.[27] The internet has allowed not only the exchange of shared information (not coincidentally named ‘creative commons’ or ‘digital commons’, as well as ‘free software’[28]) but also the organisation of political actions and the exchange of ideas without censorship (at least for some). But of course the new enclosures are never far away, wherever there is potential profit to be made: intellectual property law and virtual enclosures, not to mention the commodification of online information in the form of social media networks selling personal information to advertisers, make the virtual world look like a cyber-repeat of the original enclosures (where hedgerows become paywalls, perhaps). Again, there are attempts to circumvent the lockdown of the internet in the form of non-corporate operating systems and file-sharing, but here again the law has stepped into prosecute many people who have shared something deemed not to be common, but private property. Sometimes, even, it appears that the contemporary use of ‘the commons’ as referring to an immaterial resource in fact demonstrates how few ‘common’ resources remain in reality, online and elsewhere, or at least shows the extreme speed at which something can be enclosed and made profitable, through commodification or financial speculation. Siefkes, however, is optimistic, seeing the seeds of destruction of the new enclosures at their very heart: ‘capitalism has also produced the modern technologies which have made a new generation of commons possible’.[29] Here we have a repeat of Marx’s claim that capitalism too contains the seeds of its own destruction in the creation and ultimately untenable exploitation of the working class.

Resisting the New Enclosures

To return to the broad definition of the commons and commoning introduced earlier, as well as an expanded notion of enclosures, old and new, and temporarily leaving aside Tricarico’s worry about the financialisation of the commons, we can ask how and where the new enclosures are being resisted, and whether there is any role for the law in this resistance. Federici has already pointed to various forms of commoning that resist commodification and take place outsides the circuits of the new enclosures, and alongside this there are the extremely important landless movements – in Brazil, for example, where the Movimento dos Trabalhadores Sem Terra occupy business farms, block roads, destroy GM crops and actively create sustainable ways of living – which demonstrate very vividly that the battle over global commons (understood primarily as land and material resources) is nowhere near over. But how do the various different modes of the battles against enclosures link up? What does the creative commons internet project have to do with battles over land rights? The strong continuum across the different meanings of the commons can be seen clearly in the politics of the Ej√©rcito Zapatista de Liberaci√≥n Nacional, better known as the Zapatistas, based in Mexico. The Zapatistas, formed in 1994, use a combination of offline tactics (occupations, setting up bases, particularly in Chiapas) and online techniques, using the power of the internet to garner international support, preventing the government from acting as violently towards them as they might others do. A crucial part of the Zapatistas’ political position is the demand for a new constitution, which would directly address the question of the commons. Their Sixth Declaration includes the following points:

We are also going to go about raising a struggle in order to demand that we make a new Constitution, new laws which take into account the demands of the Mexican people, which are: housing, land, work, food, health, education, information, culture, independence, democracy, justice, liberty and peace. A new Constitution which recognizes the rights and liberties of the people, and which defends the weak in the face of the powerful.[30]

Here we have come full circle, back to Linebaugh’s call for everyday practices of commoning to be reinserted into a call for constitutional and juridical change. As he puts it: ‘The message of the two charters and the message of this book is plain: political and legal rights can exist only on an economic foundation.’[31] So while the law has frequently acted to enclose the commons, it also retains a potential to create mechanisms of redistribution. By looking closer to home, and asking the question ‘is there an economic constitution in the UK?’ as Oscar Guardiola-Rivera does, we can see how close (or far) the current law is from the image of the commons and commoning presented by Linebaugh and others discussed here. Guardiola-Rivera suggests that ‘legal (rights-based) discussion about socio-economic issues in the UK is, in principle, limited’[32] despite the possibilities opened up by the Equality Act (2010) whereby challenging discrimination on economic grounds is made possible. So we are a long way away from the kinds of liberties enjoyed by the commoners protected in the Magna Carta and the Charter of the Forest (or at least a long way away from whatever their modern equivalents might look like). While we can see that there are many modes of resistance to the ever-enclosing force of big business and government policies, it is clear that without a sustained will to transform the constitution of the UK, and thus to put political and legal rights on a fair and equitable economic basis, it is likely that whatever commons remain, if any, will continue to be expropriated from the commoners – that is to say, almost everyone.



[1] Simon Fairlie, ‘A Short History of Enclosure in Britain’, Land Magazine, Issue 7, Summer 2009.
[2] As in Garrett Hardin’s infamous ‘Tragedy of the Commons’, Science 162 (3859): 1243–1248, which Peter Linebaugh describes as denying ‘several millennia of experience in the mutuality and negotiation of communing’ (The Magna Carta Manifesto: Liberties and Commons for All (Berkeley: University of California Press, 2008), pp. 9-10. 
[3] Linebaugh, op. cit., p. 6.
[4] Silvia Federici, ‘Feminism and the Politics of the Common’, http://www.commoner.org.uk/wp-content/uploads/2011/01/federici-feminism-and-the-politics-of-commons.pdf [accessed 08/01/13].
[5] Christian Siefkes, ‘The Commons of the Future: Building Blocks for a Commons-based Society’, http://www.commoner.org.uk/wp-content/uploads/2009/03/siefkes_future-commons.pdf [accessed 08/01/13].
[6] David Bollier, ‘Reclaiming the Commons’, Boston Review, Summer 2002.
[7] Paul B. Hartzog, ‘Global Commons: Is Definition Possible?’ April 2003, http://www.panarchy.com/Members/PaulBHartzog/Papers/Global%20Commons.pdf [accessed 08/01/13].
[8] George Caffentzis, ‘Autonomous Universities and the Making of the Knowledge Commons’, http://www.commoner.org.uk/wp-content/uploads/2008/12/caffentzis_autonomous-universities.pdf [accessed 08/01/13].
[9] Garret Hardin, ‘the Tragedy of the Commons’, Science, 1968, http://www.garretthardinsociety.org/articles/art_tragedy_of_the_commons.html [accessed 08/01/13].
[10] Linebaugh, op. cit., p. 279.
[11] E. P. Thompson, Customs in Common (Pontypool: The Merlin Press, 1991), p. 104.
[12] Fairlie, op. cit., p. 3. ‘Usufructory’ refers to the ‘fruits’ of the land.
[13] Fairlie, op. cit., p. 3.
[14] Karl Marx, Capital, vol. 1, Chapter 27, http://www.marxists.org/archive/marx/works/1867-c1/ch27.htm [accessed 08/01/13].
[15] Linebaugh, op. cit., p. 45.
[16] See Linebaugh’s Glossary for this definition.
[17] Source here: http://cla.calpoly.edu/~lcall/enclosures.html [accessed 08/01/13]. 
[18] Aditya Chakrabortty, ‘The Welfare State, 1942-2013, obituary’, 8th January, 2013, http://www.guardian.co.uk/commentisfree/2013/jan/08/welfare-state-1942-2013-obituary [accessed 08/01/13]. 
[19] Federici, op. cit, p. 1.
[20] Federici, op. cit., p. 1.
[21] Fairlie, op. cit.
[22] Federici, op. cit., p. 2.
[23] Federici, op. cit, p. 4.
[24] Federici, op. cit, p. 8.
[25] Linebaugh, op. cit., p. 280.
[26] Antonio Tricarico, ‘The Financial Enclosure of the Commons’, Red Pepper, September 2012.
[27] James W. Lindenschmidt, ‘From Virtual Commons To Virtual Enclosures: Revolution and Counter-Revolution In The Information Age’, http://www.commoner.org.uk/09lindenschmidt.pdf.
[28] See Christian Siefkes, op. cit: ‘There are two forms of protecting the commons (the created software) against privatization (enclosure): in the weak form, free software is governed by a license which ensures that the software will remain in the commons forever (even if the creator would like to privatize it again), but which doesn't protect derived works created by modifying the original software. The strong form, called copyleft, extends this protection: it postulates that any derived works must be licensed in the same way as the original work (if they are published at all), thus ensuring that all derived works will become part of the commons, too. The weak form of protecting thus ensures, at least, that the commons can never shrink, while the strong form actively encourages its growth’ (http://www.commoner.org.uk/wp-content/uploads/2009/03/siefkes_future-commons.pdf
[29] Ibid.
[30] http://libcom.org/library/the-sixth-declaration-zapatistas-nationalism-state
[31] Linebaugh, op. cit., p. 6.
[32] Oscar Guardiola-Rivera, ‘Is there an Economic Constitution in the UK?’ unpublished course handout.

Sunday, 4 November 2012