The Common Good


July/August 2005
Sierra Magazine


Browse in Commons

To get to San Francisco from the coastal area where I live, I usually drive through the hamlet of Nicasio. It’s just a scattering of wooden structures around a community baseball field. The hills beyond are soft and rolling and mainly ranches, probably not much changed from a century ago.

A while back a sign appeared by the road there. “SOON TO BE BUILT ON THIS SITE,” it said, and my insides went code red. I thought of bulldozers, asphalt, a mange of houses with glandular disorders. Then I saw the smaller print. “Thanks to your help, absolutely nothing.”

The sign was the work of a local organization raising funds to buy the land so that developers couldn’t. The large type triggered something many Americans feel: a brooding sense of vulnerability and impending loss. This sense begins with wilderness and open space but doesn’t end there. Everywhere we look, something we thought was off-limits to the market is falling prey to it: schools, the gene pool, children’s imagination and play, urban water systems. Coalbed-methane development is decimating the natural ecology of the West, just as Wal-Marts are destroying the social ecology of Main Streets.

The environment isn’t just about nature anymore. It has become a metaphor for a battle against market — and sometimes governmental — encroachment that extends to virtually every corner of our society. Everything is up for grabs. Everything is for sale. Politicians and the media are essentially oblivious, just as they were oblivious to the threats to the environment before Rachel Carson wrote Silent Spring, about the dangers of the pesticide DDT. There isn’t even a word for this encroachment and loss, except for the tendentious euphemism “growth.”

It is significant, then, that an old term is reappearing to describe what is being threatened. It is “the commons,” the realm of life that is distinct from both the market and the state and is the shared heritage of us all. Vandana Shiva, an Indian physicist and environmental activist, writes about the commons of water and seeds. Lawrence Lessig, an author and lawyer, describes the innovation commons of the Internet and the public domain of knowledge. Others are talking about the atmospheric commons, the commons of public squares, and the commons of quiet.

People don’t generally connect seeds and bytes, aquifers and silence. But the concept of the commons shows them to be aspects of the same thing, with political, legal, and environmental implications that could be far-reaching. The political drama starts to play out around a new question, in fact. It is not whether there will be more government or less, but whether the market will be able to expropriate everything. In an “ownership” society, what happens to the realms that belong to all of us together, as opposed to each of us apart?

If the atmosphere, say, is a commons, then we start to see that polluters are trespassing on something that is ours, and that we hold in trust for future generations. The same goes for the gene pool, cyberspace, the broadcast spectrum, the world’s water, and the still of the night. If such things are commons, then we have rights regarding them — common property rights. And that changes everything.

Historically, the commons referred mainly to land and water. For centuries in England and much of the rest of Europe, ordinary people had rights to farm, hunt, fish, and forage on certain lands they did not own. Land was the source of sustenance; everyone needed access, and the commons provided it within the bounds of local custom. But the rise of commerce and industry made the commons an inconvenience. How could you run a big sheep-raising operation to supply wool for the new mills if a bunch of “commoners” occupied the fields with their subsistence herds? In England, Parliament solved

the problem by “enclosing” the commons. Over several centuries, culminating in the 18th, the government evicted commoners, abolished their traditional rights, and declared the commons private property. Land became a commodity and so did the commoners themselves, many of whom had to sell their labor to mill owners.

The enclosures were a mass eradication of a property right by government decree, often without compensation. But history is written by the winners, and so the enclosures generally have been portrayed as a great stride out of economic darkness toward the market. More, they have become the template by which economists have compared each successive wave of market expansion. Because the enclosures of the common fields in England were seen as a step forward, enclosure in all forms must be always and forever good. Like Miss Havisham in Great Expectations, parading around the moldy table from her long-aborted wedding, economists cannot grasp that yesterday is not forever, and that yesterday’s answer can become today’s problem if carried too far.

In recent decades, the expansion of the market into natural and social spaces has exceeded all previous bounds. What happened to the common fields of England is happening to virtually everything.

Water is a prime example of this trend. A gift of nature, water has traditionally been available to those who need it, whether through village wells or urban water systems. But today these systems are going private. Bottled water has become a $22 billion global business; it’s getting hard even to find a water fountain. The International Monetary Fund and World Bank have pushed developing countries to privatize their water systems. This happened in Bolivia in 2001, and when Bechtel Corporation took over the waterworks in the town of Cochabamba, rates went up by more than 300 percent.

As with water, so too with the life it sustains. The gene pool has also been a kind of commons. Farmers could draw from it freely, saving seeds from harvest to use for the next crop. Now corporations are genetically engineering seeds and obtaining patents on the results. Farmers have to pay royalties when they plant them and can be sued for infringement if the patented genes are found in their crops — even if they blew over from a neighbor’s property.

In the pool of knowledge, so much corporate money is pouring into university research labs that inquiry aims increasingly at corporate profit rather than the common good. The University of California at Berkeley dropped its division of biological pest control, in part because corporate funders want research on something with more profit potential, such as genetic modifications that can be patented.

What’s happening to nature and knowledge is happening as well to the social commons of everyday life. Children once were weaned on a narrative commons of folklore and fairy tales. Their games were a kind of universal language. My wife grew up in a rural village in the Philippines, and on summer evenings she played hide-and-seek around a big mango tree — much as my friends and I did around an oak tree in a Boston suburb. Today, by contrast, children get stories contrived by corporations for the purpose of selling products, and their games increasingly are packaged and sold in stores.

They are subject to a nonstop barrage of advertising, even in their schools. Not since the days of child labor in factories has childhood been so enclosed by the market. In these and a multitude of other ways, we commoners are being banished from our own domain.

What used to be ours now belongs to corporations, what used to be free we now have to buy, and what’s left of the commons of our air and water continue to serve as dumps. In this new setting, the concept of the commons is bigger than it was centuries ago because the market itself has become so much bigger and more aggressive. There was no need to think of childhood as a commons before corporations started to enclose it, no need to think of the gene pool as a commons before technology enabled corporations to manipulate it for their own ends.

If advocates of the commons in its many forms were to embrace the concept as a defining theme, the result could be a new and potent political force. It was just such a leap that launched the environmental movement half a century ago. Until then, hunters, birdwatchers, wilderness hikers, public-health officials, and the like did not routinely see themselves as allies. Then Carson wrote Silent Spring, and the many became one.

The time is ripe for the next big step. “In a world where everything is being privatized,” write Maude Barlow and Tony Clarke in their book Blue Gold, “citizens must establish clear perimeters around those areas that are sacred to life or necessary for economic and social justice.” They were writing specifically about water, but the same can be said of the many other realms of life humans have historically shared.

This would do more than broaden the environmental movement; it would also reinforce the link between environmental concerns and those of the poor. After all, it generally is not people of great wealth who fish in the Potomac River in Washington, D.C., play basketball on playgrounds in Los Angeles, or raise vegetables in community gardens on Manhattan’s Lower East Side. The commons often means the most to those who have the least. This is especially true in developing countries, where oil, timber, and mining operations are destroying the subsistence commons.

Of course, there can be conflict between conservation efforts and traditional subsistence rights; the displacement of indigenous people to create wildlife preserves in Africa is a notable instance. But such conflicts pale beside the invasions and expropriations of the market. Seen through the lens of the commons, the concerns of environmentalists and the needs of the world’s poor tend to be aligned.

The commons also opens up new avenues of legal redress. An example is the ancient doctrine of “public trust,” which goes back to Roman times and holds basically that some property is common by its very nature. Government has a duty — a public trust — to maintain such property for the common good. The public trust applied originally to navigable waterways, tidelands, and coastal lands, as well as the air.

But in today’s more complicated economy, courts have begun to apply it more broadly. Probably the most significant public-trust case involved Mono Lake, on the eastern edge of California’s Sierra Nevada. Mono Lake provides food and habitat for a large number of nesting and migratory birds, and its scenic beauty attracts many visitors.

But Los Angeles was draining it through water diversions, and the Audubon Society challenged these as violations of the public trust. The California Supreme Court agreed and said that even existing water rights must yield to this superior claim.

The court recognized that the public trust includes environmental concerns — more precisely, that the services of nature are public benefits and “uses” under the terms of the trust. “Both the scenic beauty and the ecological values of Mono Lake are imperiled,” the court noted, explaining the basis for its decision. Legal scholars disagree on the ultimate scope of the public-trust doctrine, in particular on how far it can extend from water, to which it has generally been attached. In recent years, for instance, plaintiffs have invoked it in attempts to stop the EPA from allowing the genetic splicing of a pesticide into plants and to block the National Park Service from granting an exclusive contract to a private corporation to patent biological tissues, soils, and sediments found in Yellowstone National Park. In both cases the plaintiffs prevailed, though on other grounds.

But courts generally have agreed that the assertion of the public trust is not a “taking” that requires compensation. The trust was inherent in the property all along and therefore represents a prior claim. In the Waiahole Ditch case in 2000, for example, the Hawaii Supreme Court ordered that water rights granted more than 90 years ago to a now- defunct sugar plantation revert to traditional uses. “Apart from any private rights that may exist in water,” the court said, “there is, as there always has been, a superior public interest in this natural bounty.”

When economists do acknowledge the commons it is mainly to disparage it. The problem is not encroachment by the market, they say, but by commoners themselves. This view, usually called the “tragedy thesis,” maintains that a commons is inherently prone to overuse and thus is at odds with conservation. Declare a lake a commons, the theory goes, and it’s just an invitation to motorboats and Jet Skis.

Yet like much of what passes for economics today, the so-called tragedy thesis is unburdened by inquiry into how life — in this case the commons — has actually worked through the ages. The fact is, all over the world in a wide range of settings, people have found ways to manage limited resources such as water so that there is enough for all. What this thesis overlooks, said historian E. P. Thompson, “is that the commoners themselves were not without common sense.”

It is testimony to the intransigence of economic belief that in the face of market tragedy on all sides, from the collapse of Enron and WorldCom to the geopolitical tensions surrounding oil, it is still the supposed tragedy of the commons that preoccupies the economic mind. Any property arrangement — private, public, common — can be tragic without a governing structure of custom or law. The market itself would collapse without the props the government has erected, such as the Federal Reserve Board, the Securities and Exchange Commission, and military protection of the sea lanes. Even with them, the market often fails.

So it’s not surprising that the commons needs a legal structure too. Some commons don’t require much. The Internet, sidewalks, and public squares need only basic ground rules. The main challenge is to keep the market — and sometimes the government — from fencing or despoiling them. Other commons require more. The knowledge commons needs public libraries to provide access, for example. Community gardens need rules for plot size, open hours, and work assignments for common areas. Water requires a delivery system and safeguards to keep it pure.

Then there are large commons, such as the oceans and sky, that have become dumps. This is where the tragedy thesis has some validity, and the current policy vogue is, accordingly, to impose a private-property regime. To deal with air pollution, for example, the government allocates permits to polluters that they can sell to one another like taxi medallions. The allocations bestow a right to pollute, which means a property right to the sky.

But something is missing from this scenario — namely us owners. If the sky is a commons, then it belongs to all of us. Why should our government bestow upon corporations the right to sully our sky for free — a right they can turn around and sell for money? That question is the starting point for Sky Trust, a proposal that would transform “market-based” environmentalism — which purports to turn the mechanisms of the market to nonpolluting and conserving ends — into something more commons-based.

Under Sky Trust, polluters would pay rent to us commoners. Strict caps would limit the overall amount of pollution, and polluters would bid on the permissible dump space that remained. The rent would go to a trust, which could use a portion of it for specified public purposes, while the rest would come directly back to the owners in the form of dividend checks.

It would work much like the Alaska Permanent Fund, which distributes oil revenues from state lands. But there is a crucial difference. In Alaska, more drilling means bigger dividend checks, so the fund disposes Alaskans to support oil development. With Sky Trust, by contrast, greater revenues would result from tighter caps, for the same reason that apartment rents go up as the number of available units shrinks. Essentially, Americans would enjoy a larger cash dividend from cleaner air.

Most commons-based policy does not attempt to mesh with the market in this way. To the contrary, it establishes boundaries against the overreaching of the market, and enclaves in which a different kind of social organization can flourish. For example, community gardens help stop private development, public libraries help prevent the enclosure of knowledge, and seed banks protect the genetic commons from the enclosure of biotech firms. Each specific commons needs its own laws and institutional structures, just as there are different laws for, say, banking and automobile repair.

In the 1830s, an observer in Manchester, England, noted one aspect of the plight of the new industrial labor class. “The commons on which the labourers indulged in healthful sports are enclosed,” he wrote, and fences “prevent the humble operative from enjoying the verdure of the foliage or the fragrance of the flowers.” These workers had been banished from their ancestral commons. They were toiling inhuman hours in “satanic” mills. And now their last refuge, the urban commons, was closed to them as well. “The whistling of birds is not for us,” a trade union magazine lamented. “Our melody is the deafening noise of the engine.”

When the fields and forests of old England were enclosed, the commons did not end. Rather it took a different form to meet a changing human need. The preindustrial commons provided livelihood and material sustenance, and in the developing world, it still plays that role. There are residues even in the United States, where rural people hunt for food on public lands, and urban dwellers fish in rivers that pass near their homes.

But increasingly the commons today meets a different kind of need: refuge from the market and its frenzied pace. It provides such things as open space, access to nature, the conviviality of public squares. The commons still meets basic material needs as well — the air we breathe, the water we drink, and the forests and aquifers that cleanse and replenish these. But even here, it produces by not producing in the narrow economic sense. Each new step of market encroachment has increased the need for counter-production of this kind — for quiet instead of noise, for open space instead of development, for seed banks instead of genetically modified organisms.

The developed world has turned an economic corner, one that most economists have not grasped. For eons the challenge was to make and do — to fill the void of material scarcity with the fruits of human ingenuity and toil. That challenge continues in the developing world, where it is especially urgent to find ways to develop without cannibalizing the natural life-support system, as industrialized nations have done.

But increasingly, our challenge is to leave things alone, to let nature and society do the work the market cannot do and, in fact, tends to destroy. In this new, yet old, parallel economy of well-being, the commons plays the central role. This is not just a matter of utility, important as that is. It is also about freedom. Centuries ago the market emerged as an agency of freedom, breaking the shackles of the feudal past.

But now the market is creating shackles of its own, as it confines us to the enclosures of its own making — its copyrighted knowledge, its patented seeds, its denuded forests, its public spaces sealed increasingly against any form of human expression other than the commercial.

To reclaim the commons is, ultimately, to reclaim a part of ourselves. “The market economy is not everything,” economist Wilhelm Ropke — a conservative — observed half a century ago. “It must find its place within a higher order of things that is not ruled by supply and demand.” That larger order includes the commons that sustains it and life itself.

Jonathan Rowe has written for the Christian Science Monitor, Washington Monthly, and U.S. News and World Report. He is director of the Tomales Bay Institute.