& POLLUTION AS A COMMON
Is garbage part of the commons? Pollution has more rights than us as it doesn’t need a passport to cross national boundaries. Hence the question if pollution should not also be a common? This chapter zooms in on the global politics and the stature of the commons within international law. How can we govern the commons globally? Who owns the earth? Who owns the air? Who owns the climate? Who owns outer space? A changing nature of law is redefining how forests, trees and even rivers (e.g. the Whangui river in New Zealand) attain legal status, but who will share these laws and does it take into account indigenous stewardship questioning legal ownership? Or can corporations like Bayer-Monsanto be held accountable for ecocide by the International Court of the Hague (e.g. 2017 Monsanto Tribunal for ecocide)?
If we are to understand the law of the commons, we must start by expanding our notion of law itself. Law is not just formal, written and institutional; it is also informal, oral and social. The law of the commons represents something of a threat to formal law because its substance and legitimacy derive from the always-shifting social practices of the community. “Commoning” is often experienced as more responsive and morally legitimate than state law, particularly when the state itself is rigid, corrupt, incompetent or captive to corporate influence.
In a brilliant essay, “The Life of the Law Online,” legal scholar David R. Johnson likens law to a biological organism. He sees law as more closely resembling life than a machine; in this sense, it has a life and history of its own. “Law is a story we tell each other about justice and shared social values,” writes Johnson. “We have to retell this story every day — it replicates and persists only insofar as we do that.” (David Bollier: Think like a Commoner, 2014: 85)
Custom is therefore a vital element of the law of the commons. It functions as a cultural code that provides a unifying social ethic to a community. It is a shared narrative that links the community to earlier generations, and to a repository of wisdom about local resources and how best to manage them. As property scholar Carol Rose puts it, custom is “a medium through which a seemingly ‘unorganized’ public may organize itself and act, and in a sense even ‘speak’ with the force of law.”
This corresponds to David Johnson’s claim that law amounts to a “self-referential, organizational identity” that belongs to the people who make it. “If law has a life of its own,” he writes, “and in some sense causes its own form of order and persistence, we should be studying its biography rather than pretending that we can design and repair its mechanisms from the outside.” In other words, we must understand the subjective, socially internal dynamics of commons and recognize that this is where law originates.
When law is seen in this perspective — not just as a series of formal constitutions and statutes but as a self-organized system that a community creates to manage itself and its resources in orderly fair ways — it is easy to see that the commons itself is a living embodiment of law. It amounts to an evolving social
contract. Individuals come together to negotiate the rules and norms that will govern their community. They specify how members may access and use shared resources. They set about making rules for managing land, water, fish and wild game, and for monitoring usage and punishing vandals and free riders. In this broader sense, the law of the commons extends into the mists of time and precedes formal written law by many millennia.
From the outside, the law of the commons as embodied in an indigenous culture may seem static and slow moving, even frozen. But in truth, “commons law” constantly adapts to changes, often in small incremental ways. It is especially mindful of local realities: its signature strength. The tensions arise when formal, written law is not roughly congruent with such “commons law” and does not leave space for commoning. Is formal state law too strict and rigid — or is it open to change through peaceable politics and due process? Does it so insist upon market relationships and norms such that real citizenship is not possible?
Throughout history, state law has occasionally recognized the “vernacular law” of commoners — or at least, larger public needs — by formalizing such principles within the legal apparatus of the state. One of the earliest such instances of this occurred in the Roman Empire, which recognized explicit categories of law for property, including common property. In 535 AD, Emperor Justinian gave the first legal recognition of the commons when he enshrined res communes in his Institutes of Justinian body of law. “By the law of nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea. . . . Also all rivers and ports are public, so that the right of fishing in a port and in rivers is common to all. And by the law of nations the use of the shore is also public, and in the same manner, the sea itself. The right of fishing in the sea from the shore belongs to all men.” (emphasis in original). (David Bollier: Think like a Commoner, 2014: 86-87)
This legal principle — that neither the State, commerce nor citizens could make proprietary claims on resources that belong to everyone — has survived in what is known in American law as the “public trust doctrine.” This doctrine formalizes the idea that the State has an affirmative duty to protect natural resources for present and future generations; it cannot sell or give away land, water or wildlife to any private party. The public trust doctrine has traditionally been applied to rivers, oceans and the coastal shoreline, and is invoked to protect the right of the unorganized public to use those waters for fishing, navigation and recreation.
It is significant that res communes is a separate category from res publicae, another legal category that describes public things that belong to the state. Res communes is not simply “state-owned” property, but a class of property that lies beyond the power of the state. (David Bollier: Think like a Commoner, 2014: 88)